Required Actions. (a) Purchaser and 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 the most expeditious manner possible the Transactions, including: (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Sale; (ii) taking all actions reasonably necessary to obtain (and cooperating with each other in obtaining) the Required Regulatory Approvals; (iii) the execution and delivery of any additional instruments reasonably necessary to consummate the Sale 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 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 not 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 Required Regulatory Approval; provided, however, that Purchaser shall be permitted to file any additional or 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 this Agreement (such approval not to be withheld, conditioned or delayed, to the 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, Purchaser and Sellers shall each keep the other reasonably apprised of the status of matters relating to the completion of the Sale and work cooperatively in connection with obtaining 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 to be undertaken pursuant to the provisions of this Section 5.6. In that regard, prior to the Closing, each party shall promptly consult with the other party to this Agreement to provide any necessary information with respect to (and, in the case of correspondence, provide the other party (or 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 and the Sale. 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 regarding the Sale, and permit the other party to review and discuss in advance, and consider in good faith the views of the other party in connection with, any proposed material written or oral communication with any such Governmental Entity. If 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, 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. To the extent practicable, neither Sellers nor Purchaser shall participate in any meeting with any Governmental Entity 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 gives the other party the opportunity to attend and participate thereat. To the extent permitted by Law, each party shall furnish the other party with copies of all material correspondence, filings and material communications between it and any such 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 obligated to take or agree to commit to take any action that would violate applicable Law or their respective covenants under the Confidentiality Agreement or Section 5.5. (c) Purchaser and Sellers shall file, as promptly as practicable, but in any event no later than sixty-five (65) calendar days after the date of this Agreement (unless mutually extended by Purchaser and Sellers), notifications under the HSR Act, and Purchaser and Sellers shall file and provide, as promptly as practicable, any other filings and/or notifications or information required to obtain the Required Regulatory Approvals, including to the extent applicable, 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 event that the parties receive a request for any additional information after any such notification or filing, the parties shall respond to such requests, as applicable, as promptly as possible, and counsel for both parties will closely cooperate during the entirety of any such investigatory or review process. (d) Purchaser and Sellers shall use their respective reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the 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 Proceeding is instituted (or threatened to be instituted) challenging the Sale as violative of any Regulatory Laws, Purchaser and Sellers shall jointly (to the extent practicable) use their respective reasonable best efforts to participate in any Proceedings, whether judicial or administrative, in order to: (i) oppose or defend against any action by any Governmental Entity to prevent or enjoin the consummation of the Sale; and/or (ii) take such action as necessary to oppose any regulatory action by any Governmental Entity to block consummation of the Sale, including by defending any Proceeding brought by any Governmental Entity in order to avoid the entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any Legal Restraint resulting from any 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 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 necessary, to avoid or eliminate each and every impediment under any 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, 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 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 (iv) otherwise taking or committing to take actions that after the Closing Date would limit Purchaser’s or its Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Acquired Subsidiaries, Purchaser, and their respective Subsidiaries, 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 their respective Subsidiaries to retain, any of the businesses, product lines or assets of the Acquired Subsidiaries (after giving effect to the Restructuring Transactions), Purchaser, or any of their respective Subsidiaries. All such efforts by Purchaser shall be unconditional, and no actions taken pursuant to this Section 5.6(e) in connection with obtaining consents or approvals under applicable Competition Laws shall be considered for purposes of determining whether a Material Adverse Effect has 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 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 consents, approvals or waivers pursuant to this Section 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) Without limiting the specificity of any required actions under any provision of this Agreement, including this Section 6.3 and Section 6.5, each Purchaser and ~~Sellers~~ Parent shall, and shall cause their respective Affiliates to use their ~~respective~~ reasonable efforts to consummate and make effective as promptly as reasonably practicable the Sale, including using reasonable best efforts to take, or cause to be taken, in each case all ~~actions, and to do, or cause to be done, all things~~ actions necessary, proper or advisable under any applicable Laws to ~~consummate~~ provide any notification and ~~make effective in the most expeditious manner possible the Transactions~~obtain any consent, ~~including: (i) the preparation and filing~~ clearance, expiration or termination of ~~all forms~~a waiting period, ~~registrations and notices~~ authorization, Order or approval of, or any exemption by, any Governmental Entity required to be ~~filed to consummate~~ obtained or made by any of Purchaser, Zayo or Parent or any of such respective Affiliates in connection with the Sale; (ii) taking all actions reasonably necessary to obtain (and cooperating with each other in obtaining) the Required Regulatory Approvals; (iii) the execution and delivery of any additional instruments reasonably necessary to consummate Pre-Closing Restructuring, the Sale and ~~to fully carry out~~ the ~~purposes of~~ other transactions contemplated by this Agreement. (b) Each Purchaser, 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 Sellers and Purchaser (1) Parent shall ~~use reasonable best efforts to take,~~ file or cause to be ~~taken~~filed, ~~all actions~~any filings (including draft filings) or notifications under the CFIUS Statute, applicable Competition Laws and doCommunications Laws within the timeframes set out in Section 9.1(a) of the Parent Disclosure Schedule; provided, however, the parties may update or ~~cause~~ amend State PUC, CFIUS or Competition Law filings after such date to ~~be done, all things necessary, proper~~ reflect updated Purchaser ownership information to the extent that such update or ~~advisable under any applicable Laws to fulfill all conditions precedent to this Agreement and (2) shall~~ amendment would not ~~take any action after the date of this Agreement that would~~ reasonably be expected to materially delay the ~~obtaining~~ Closing. In the event that the parties receive a request for additional information or documentary materials after an initial notification pursuant to the CFIUS Statue, any Competition Laws or Communications Laws, the parties shall use their respective reasonable best efforts to comply with such requests, as applicable, as promptly as possible and produce documents, responses to interrogatories or other information; including for the avoidance of doubt, (i) submitting, as promptly as practicable, to CFIUS, as promptly as practicable after responding to any comments from CFIUS staff on the draft CFIUS Notice (or as soon as possible after CFIUS staff confirms it has no comments on the draft CFIUS Notice), a CFIUS Notice with respect to the Transactions and supplying, as promptly as practicable, any additional information and documentary material that may be requested in connection with the CFIUS review process and (ii) in the event that the United States Federal Trade Commission or the United States Department of Justice issue a so-called “second request” (a “Second Request”) in connection with the Parties’ HSR Act filing, each Purchaser and Parent shall use reasonable best efforts to be ready to certify substantial compliance as promptly as reasonably practicable after the date of receipt of such Second Request. Each Purchaser shall have the right to “pull-and-refile” (or cause its “ultimate parent entity,” as the term is defined in the HSR Act, to “pull-and-refile”) such party’s HSR Act filings pursuant to 16 C.F.R. 803.12 and enter into any voluntary extension of any statutory deadline or waiting period or to any voluntary delay of the consummation of the transactions contemplated hereby or by the Ancillary Agreements (each an “Extension”), in each case, without written consent of the Parent. (i) Parent and the Purchasers shall jointly control all communications with any Governmental Entity relating to Competition Laws and Communications Laws, and jointly determine and direct the strategy and process by which the parties will obtain all required consents, clearances, expirations or terminations of waiting periods, authorizations, Orders or approvals of, or ~~result in not obtaining~~any exemptions by, any ~~Required Regulatory Approval; provided~~Governmental Entity relating to Competition Laws, ~~however~~the CFIUS Statute, ~~that Purchaser shall be permitted to file any additional or updated applications for any Required Regulatory Approval that may be~~ and Communications Laws required in connection with ~~obtaining Debt Financing Sources~~ this Agreement; provided that, notwithstanding the foregoing, in the event of any conflict or ~~equity investments in Purchaser~~ disagreement between the ~~date hereof~~ Purchasers and ~~Closing~~ Parent (~~collectively,~~ a “~~New Financers/Investors~~Disagreement”), ~~as long as Lumen has approved~~ the respective outside counsels of Parent and Purchasers (at the direction of the Purchaser Representative) will seek to resolve the Disagreement reasonably and in good faith. If the respective outside counsels are unable to reach a mutually satisfactory resolution of the Disagreement within two (2) calendar days after their first conferring regarding the applicable Disagreement, the Disagreement shall be referred to the Purchaser Representative and the Chief Executive Officer of CCI, respectively. If the Purchaser Representative and Chief Executive Officer of CCI are unable to reach a mutually satisfactory resolution of the Disagreement within two (2) calendar days after their first conferring regarding the applicable Disagreement, Purchasers shall have the right to direct the matter that is the cause of any such ~~New Financers/Investors~~ Disagreement, acting reasonably and following consultation with the Parent and after considering in ~~writing before or after~~ good faith all comments and advice of the ~~date of this Agreement~~ Parent (~~such approval not to be withheld, conditioned or delayed, to the extent any such approval would not reasonably be expected to result in the Closing occurring later than the Outside Date~~and its counsel). (bii) ~~Prior to~~ Without limiting the ~~Closing, Purchaser and Sellers shall each keep the other reasonably apprised~~ generality of the status of matters relating to the completion of the Sale and work cooperatively in connection with obtaining 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 to be undertaken pursuant to the provisions of this Section ~~5.6. In that regard~~6.3(c)(i), prior to the Closing, ~~each party~~ to the extent not prohibited by applicable Law, Parent, on the one hand, and Purchasers, on the other hand, shall ~~promptly consult~~ (A) work cooperatively with the other party to this Agreement to provide any necessary information with respect to (and, in the case of correspondence, provide the other party (or 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 parties in connection with ~~this Agreement and the Sale. Each party to this Agreement shall~~ obtaining all required consents, clearances, expirations or terminations of waiting periods, authorizations, Orders or approvals of, or any exemptions by, any Governmental Entity, (B) promptly inform the other ~~party to this Agreement~~parties, and if in writing, furnish the other ~~party~~ parties with copies of (or, in the case of oral communications, advise the other ~~party orally~~ parties of) any ~~material~~ substantive communication from any Governmental Entity regarding the ~~Sale~~Sale or the other transactions contemplated by this Agreement, ~~and~~ (C) 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 ~~material~~ written or substantive oral communication or submission with or to any such Governmental Entity~~. If 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~~, ~~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. To the extent practicable, neither Sellers nor Purchaser shall~~ (D) not participate in any substantive meeting with any Governmental Entity in connection with this ~~Agreement~~ Agreement, the Sale or the other transactions contemplated by this Agreement, or with any other Person in connection with any proceeding or Action by a private party relating to the CFIUS Statute, any Competition Laws or Communications Laws in connection with this Agreement, the Sale (or the other transactions contemplated by this Agreement or make oral submissions at meetings or in telephone or other conversations) , unless it consults with the other ~~party~~ parties in advance ~~and~~ and, to the extent permitted by such Governmental Entity, gives the other ~~party~~ parties the opportunity to attend and participate thereat. To the extent permitted by Law, each party shall furnish the other party with copies of all material correspondence, filings and material communications between it and any such 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 obligated to take or agree to commit to take any action that would violate applicable Law or their respective covenants under the Confidentiality Agreement or Section 5.5. (ciii) ~~Purchaser and Sellers shall file~~Any disclosures, ~~as promptly as practicable, but in any event no later than sixty-five (65) calendar days after the date~~ provisions of ~~this Agreement (unless mutually extended~~ privileged or commercially sensitive information or rights to participate by ~~Purchaser and Sellers), notifications under the HSR Act, and Purchaser and Sellers shall file and provide, as promptly as practicable,~~ one party to any other ~~filings and/or notifications or information required to obtain the Required Regulatory Approvals~~party under this Section 6.3 may be made on an outside counsel-only basis, ~~including~~ to the extent ~~applicable~~such party deems it advisable and necessary and so designated it, ~~filing all applications with~~ and once so designated, shall not be disclosed by such outside counsel to employees, officers or directors of the ~~FCC and any applicable State Regulators that~~ recipient unless express permission is obtained in advance from the source of the materials (Purchasers or Parent, as the case may be). Such designated disclosures or information may be ~~required by~~ redacted (A) to remove references concerning the ~~Communications Act~~ valuation of the Business and pricing and other competitively sensitive terms in the Contracts of Parent, Purchasers, Zayo and their respective Affiliates, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or similar rules, regulations, policies, instructions and orders of State Regulators. In the event that the parties receive a request for any additional information after any such notification or filing, the parties shall respond to such requests, as applicable, as promptly as possible, and counsel for both parties will closely cooperate during the entirety of any such investigatory or review processconfidentiality concerns. (d) ~~Purchaser~~ Each Purchaser, and ~~Sellers~~ Parent shall, and shall cause their respective Affiliates to, and Zayo shall and shall cause its Subsidiaries to, each use their respective reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Pre-Closing Restructuring, the Sale and the other transactions contemplated by this Agreement under the ~~HSR Act~~CFIUS Statute, ~~the ▇▇▇▇▇▇▇ Act, as amended, the ▇▇▇▇▇▇▇ Act, as amended, the Federal Trade Commission Act, as amended, the~~ any Competition Laws and 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 ~~Proceeding~~ 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 ~~Regulatory~~ Competition Laws or Communications Laws, each Purchaser and ~~Sellers~~ its Subsidiaries shall ~~jointly (to~~ at the ~~extent practicable) use their respective reasonable best efforts to~~ request of Parent, initiate and/or participate in any ~~Proceedings~~proceedings, whether judicial or administrative, in order ~~to:~~ to (i) oppose or defend ~~against~~ through litigation any ~~action~~ claim asserted in any Action by any Governmental Entity or Person 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 ~~oppose~~ overturn any regulatory ~~action~~ Action by any Governmental Entity to block consummation of the ~~Sale~~Pre-Closing Restructuring, the Closing or the other transactions contemplated by this Agreement prior to the Outside Date, including by defending any ~~Proceeding~~ 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 ~~Legal Restraint~~ Order that makes illegal or prohibits the consummation of the Pre-Closing Restructuring, the Closing or the other transactions contemplated by this Agreement resulting from any 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 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 faithAction. (e) ~~Notwithstanding any other provision~~ In furtherance of ~~this Agreement, but subject in all respects to~~ the ~~last sentence~~ undertakings in this Section ~~5.6(e)~~6.3, ~~Purchaser~~ each of Purchaser, and Parent shall, and shall cause their respective Affiliates to, and Zayo shall and shall cause its Subsidiaries to, take all ~~reasonable~~ actions ~~necessary,~~ necessary to avoid or eliminate each and every impediment under the CFIUS Statute, any ~~Regulatory Laws,~~ Competition Laws and Communications Laws so as to enable the Pre-Closing Restructuring and the Closing to occur as promptly as practicable (and in any event no later than the Outside Date), ~~including:~~ including (i) 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 ~~Acquired Subsidiaries~~Transferred Entities, Zayo Purchaser, Zayo, and their respective Subsidiaries; , (ii) ~~conducting~~ amending any joint venture or other arrangement of the ~~Business after the Closing Date in a specified manner;~~ Transferred Entities, Zayo, Za▇▇ ▇▇▇▇▇▇▇▇▇ ▇nd their respective Subsidiaries, (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 (iv) otherwise taking or committing to take ~~actions~~ actions, including but not limited to entering into any letter of assurance, national security agreement, or similar agreement with a Governmental Entity, that after the Closing ~~Date~~ would limit ~~Purchaser’s~~ Purchasers’, the Transferred Entities or ~~its~~ their respective Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the ~~Acquired Subsidiaries~~Transferred Entities, ~~Purchaser~~Zayo, Zayo Purchaser and their respective Subsidiaries, (iv) defending through litigation on the merits and through appeals any claim asserted in ~~that regard Purchaser shall cause~~ any court with respect to the ~~Acquired Subsidiaries to (but, without modifying Purchaser’s obligations under~~ transactions contemplated by this Agreement, ~~including~~ and (v) taking or committing to take any other structural or behavioral remedy or entering into any other arrangements with respect to the ~~obligations set forth~~ Transferred Entities, Zayo, Zayo Purchaser and their respective Subsidiaries in ~~this Section 5.6) agree~~ order to ~~divest, sell, dispose~~ avoid the entry of, ~~hold separate~~or to effect the dissolution of, any injunction, temporary restraining order or other Order which would otherwise have the effect of preventing the consummation of the transactions contemplated by this Agreement by the Outside Date; provided, however, that, in no event shall Purchasers, Parent, Zayo or their respective Affiliates be obligated to take or agree or commit to take any such action that ~~limits its freedom of action with respect to,~~ is not conditioned on the ability of Purchaser, the Acquired Subsidiaries, or their respective Subsidiaries to retain, any of the businesses, product lines or assets of the Acquired Subsidiaries (after giving effect to the Restructuring Transactions), Purchaser, or any of their respective SubsidiariesClosing. ~~All such efforts by Purchaser shall be unconditional, and no~~ No actions taken pursuant to this Section ~~5.6(e~~6.3(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; provided, however, that the effectiveness of any such action to be taken by Purchaser~~ occurred or 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 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 5.6occur. (f) Notwithstanding anything to the contrary in this ~~Agreement~~Agreement (with each of the following, ~~Sellers shall~~ representing a “Purchaser Burdensome Condition”): (i) Zayo Purchaser and the Zayo Purchaser Sponsors and their respective Affiliates (including with respect to Zayo Purchaser, Zayo and its Subsidiaries) will not be ~~obligated~~ required to take or agree or commit to take any ~~action~~action that would, individually or in the aggregate, reasonably be expected to have a material adverse effect on: (iA) ~~that relates to any~~ the financial condition, business, ~~operations~~properties, assets, ~~liabilities~~liabilities or results of operations of the Fiber Business taken as a whole, ~~product lines~~ or ~~Subsidiary not~~ of Zayo, Zayo Purchaser and their respective Subsidiaries, taken as a whole, measured, after giving effect to ~~be transferred pursuant~~ the Sale, as if Zayo, Zayo Purchaser and their respective Subsidiaries (including the Fiber Business) were a business of comparable size to the Fiber Business, and ~~in accordance with~~ regardless of whether such actions are imposed on or affect Zayo Purchaser, Parent, the ~~terms and conditions~~ Fiber Business, or any of ~~this Agreement~~their respective Affiliates; or (B) Zayo Purchaser’s or any Zayo Purchaser Sponsor’s or their respective Affiliates’ ability to (i) nominate its board members or (ii) own, control, manage or operate the Fiber Business, taken as a whole, subsequent to Closing through the exercise of its voting or board representation rights or its right to receive information, other than, with respect to any remedy that ~~would amend in any material respect the terms of this Agreement~~ may be sought by CFIUS or any ~~Ancillary Agreement~~ Team Telecom Agency, (I) limitations and restrictions with respect to access to, and separation of, customer, operational or ~~that would otherwise adversely affect~~ technical data transmitted and/or stored by the ~~economic benefits~~ Fiber Transferred Entities and related facilities access, including, in particular, limitations and restrictions on access to personnel, information and facilities relating to the goods and services the Parent or any Subsidiary provides directly or indirectly to the governments of the ~~Transactions accruing~~ United States, Canada or other jurisdictions, (II) obligations to ~~Sellers.~~ regularly report to, or engage with, Governmental Entities, including any requirement to engage or hire a third party auditor or monitor to audit/monitor any required compliance matters, and to grant Governmental Entities access to the operations of the Transferred Entities, and (~~g) Purchaser agrees to provide such information reasonably available as to its financial capability, resources and creditworthiness as may be reasonably requested by (i~~III) any ~~Governmental Entity which reasonably requests such information~~ and all restrictions and commitments of the type and level that Zayo Purchaser or the investment funds advised or managed by one or more Affiliates of Zayo Purchaser that control Zayo Purchaser have agreed to in the past with respect to consents, authorizations and approvals required to be obtained from CFIUS or any Team Telecom Agency in connection with prior acquisition transactions that are similar to the transactions contemplated by this Agreement. (ii) EQT Purchaser and the EQT Purchaser Sponsor and their respective Affiliates will not be required to take or agree or commit to take any action that would, individually or in the aggregate, reasonably be expected to have a material adverse effect on: (A) the financial condition, business, properties, assets, liabilities or results of operations of the Small Cell Business taken as a whole, or EQT Purchaser and its Subsidiaries, taken as a whole, measured after giving effect to the Sale, as if EQT Purchaser and its Subsidiaries (including the Small Cell Business) were a business of a comparable size to the Small Cell Business, and regardless of whether such actions are imposed on or affect EQT Purchaser, Parent, the Small Cell Business or any of their respective Affiliates; or (B) EQT Purchaser’s or the EQT Purchaser Sponsor’s or their respective Affiliates’ ability to (i) nominate its board members or (ii) own, control, manage or operate the Small Cell Business, taken as a whole, subsequent to Closing through the exercise of its voting or board representation rights or its right to receive information, other than, with respect to any remedy that may be sought by CFIUS or any Team Telecom Agency, (I) limitations and restrictions with respect to access to, and separation of, customer, operational or technical data transmitted and/or stored by the Small Cell Transferred Entities and related facilities access, including, in particular, limitations and restrictions on access to personnel, information and facilities relating to the goods and services the Parent or any Subsidiary provides directly or indirectly to the governments of the United States, Canada or other jurisdictions, (II) obligations to regularly report to, or engage with, Governmental Entities and to grant Governmental Entities access to the operations of the Small Cell Transferred Entities, and (iiIII) 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 consents, approvals or waivers pursuant to this Section 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 deliveal

Appears in 1 contract

Sources: Stock Purchase Agreement (Crown Castle Inc.)

Required Actions. (a) ~~Purchaser~~ Purchaser, Everest, Olympus and 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 the most expeditious manner possible the Transactions, including: (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Sale; (ii) taking all actions reasonably necessary to obtain Trango (and ~~cooperating with each other in obtaining)~~ for the ~~Required Regulatory Approvals; (iii) the execution and delivery of any additional instruments reasonably necessary to consummate the Sale and to fully carry out the purposes~~ purpose of this ~~Agreement~~Section 7.6, ~~and (iv) not acquiring~~ references to Trango, shall to the extent any ~~senior notes issued under~~ other Seller is requested, requisitioned or otherwise required by a Governmental Entity to participate in any of the ~~Embarq Indenture for purposes of asserting an Event of Default (as defined in the Embarq Indenture) thereunder. Additionally~~following, ~~each of Sellers and Purchaser (1~~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 ~~fulfill~~ consummate and make effective in the most expeditious manner possible the Sale, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Sale or otherwise required by any Party or any of its Affiliates under applicable Law in relation to this Agreement or the 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, confirmation of non-objection or approval of, or any exemption by, any Governmental Entity (which actions shall include furnishing all information required under applicable Laws, including Antitrust Laws, and in connection with the Regulatory Approvals) required or advisable to be obtained or made by Purchaser, Everest, Olympus or any Seller or any of their respective Affiliates in connection with this Agreement or the Sale, and (iii) the execution and delivery of any additional instruments necessary to consummate the Sale and to fully carry out the purposes of this Agreement. Additionally, Purchaser, Everest, Olympus and Trango shall use its reasonable 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 Law to fulfil all conditions precedent to this Agreement and (2) shall not 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 Required Regulatory Approval; provided, however, that Purchaser shall be permitted to file any additional or 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 this Agreement (such approval not to be withheld, conditioned or delayed, to the extent any such approval would not reasonably be expected to result in the Closing occurring later than the Outside Date)Agreement. (b) Prior to the Closing, ~~Purchaser~~ to the extent not prohibited by applicable Law, Purchaser, Everest, Olympus and ~~Sellers~~ Trango shall each keep the other ~~reasonably~~ apprised of the status of matters relating to the completion of the Sale and work cooperatively in connection with obtaining all required or advisable consents, clearances, expirations or terminations of waiting periods, authorizations, Orders, confirmations of non-objection or approvals of, or any ~~Required Regulatory Approval~~exemptions by, ~~including by working cooperatively in connection with~~ any ~~sales, divestitures or dispositions of assets or businesses if and to the extent required to be undertaken pursuant to the provisions of this Section 5.6~~Governmental Entity. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 7.5, to the extent not prohibited by applicable Law, each ~~party~~ of Purchaser, Everest, Olympus and Trango shall promptly consult with ~~the~~ each other ~~party to this Agreement~~ to provide any necessary or reasonably requested information with respect to (and, in the case of correspondence, provide ~~the~~ each other ~~party~~ (or ~~its~~ 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 and the Sale. ~~Each party~~ Subject to ~~this~~ the Confidentiality Agreement and Section 7.5, to the extent not prohibited by applicable Law, each 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 regarding the Sale, and 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 ~~material~~ written or oral communication or submission with or to any such Governmental Entity. If ~~either party~~ any 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, 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. ~~To the extent practicable, neither Sellers nor Purchaser~~ No Party shall participate in any meeting with any Governmental Entity in connection with this Agreement or the Sale, or with any other Person in connection with any proceeding or Action, inquiry, audit, notice of violation, summons, subpoena or investigation by a private party relating to any applicable Antitrust Laws in connection with this Agreement or the 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~~ 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. To Subject to the Confidentiality Agreement and Section 7.5, to the extent ~~permitted~~ not prohibited by applicable Law, each ~~party~~ Party shall furnish ~~the other party~~ Purchaser, Everest and Olympus with copies of all ~~material~~ correspondence, ~~filings~~ filings, submissions and ~~material~~ communications between it and any such Governmental Entity or other such Person with respect to this Agreement and the Sale, and furnish ~~the other party~~ Purchaser, Everest and Olympus with such ~~reasonably~~ necessary information and reasonable assistance as ~~the other party~~ 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~~Entity or other such Person. Notwithstanding anything ~~in this Section 5.6~~ to the ~~contrary~~contrary herein, ~~neither~~ Purchaser ~~nor Sellers~~ shall, following good faith consultation with Everest and 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 ~~take~~ make or ~~agree~~ refrain from making any notification or filing to ~~commit to take~~ any ~~action that~~ Governmental Entity in circumstances where they believe (acting reasonably) it would ~~violate~~ be a breach of their obligations under applicable Law to make or ~~their respective covenants~~ 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 advisable and necessary, reasonably designate any competitively sensitive material provided to the other 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, Everest or Olympus pursuant to this Section 7.6, and the ~~Confidentiality~~ information contained therein, shall be given only to the designated legal counsel of the recipient and shall not be disclosed to any other Person unless express permission is obtained in advance from the source of the materials (Purchaser, Everest or Olympus, as the case may be) or its legal counsel; it being understood that materials provided pursuant to this Agreement ~~or Section 5.5.~~may be redacted (i) to remove references concerning the valuation of Everest and/or Olympus, (ii) as necessary to comply with contractual arrangements and (iii) as necessary to address reasonable privilege concerns. 119 (c) ~~Purchaser~~ Purchaser, Everest and ~~Sellers~~ Olympus shall ~~file~~file or cause to be 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 ~~sixty-five (65) calendar days~~ the earlier of the applicable statutory deadline and 20 Business Days after the date of this ~~Agreement~~ AgreementEffective Date (unless ~~mutually extended by Purchaser and Sellers), notifications under~~ the ~~HSR Act, and Purchaser and Sellers shall file and provide, as promptly as practicable, any other filings and/or notifications~~ applicable notification or ~~information~~ filing is not required to ~~obtain~~ be made until after the Required Regulatory Approvals, including to the extent applicable, 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 RegulatorsClosing). In the event that ~~the parties receive~~ Purchaser, Everest or Olympus receives a request for ~~any~~ additional information or documentary materials after an initial notification pursuant to any ~~such notification~~ applicable Antitrust Law or ~~filing~~in connection with any of the Regulatory Approvals, the ~~parties~~ applicable Party shall ~~respond~~ use its respective reasonable endeavors to certify compliance with such requests, as applicable, as promptly as ~~possible~~practicable and advisable, and counsel for ~~both parties will~~ the Parties shall closely cooperate during the entirety of any such investigatory or review process. (d) ~~Purchaser~~ Each of Purchaser, Everest and ~~Sellers~~ Olympus shall use ~~their respective~~ its reasonable ~~best efforts~~ 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 ~~the HSR Act, the ▇▇▇▇▇▇▇ Act, as amended, the ▇▇▇▇▇▇▇ Act, as amended, the Federal Trade Commission Act, as amended, the Communications Laws,~~ any applicable Antitrust Laws or in connection with 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”)~~Approvals. In connection therewith, if any ~~Proceeding~~ Action, inquiry, audit, notice of violation, summons, subpoena or investigation is instituted (or threatened to be instituted) challenging the Sale as violative of any ~~Regulatory~~ applicable Laws, ~~Purchaser~~ Purchaser, Everest and ~~Sellers~~ Olympus shall jointly (to the extent practicable) use their respective reasonable ~~best efforts~~ endeavors to initiate and/or participate in any ~~Proceedings~~proceedings, whether judicial or administrative, in order ~~to:~~ 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;~~ Sale and/or (ii) take such action as necessary to ~~oppose~~ overturn any regulatory ~~action~~ Action, inquiry, audit, notice of violation, summons, subpoena or investigation by any Governmental Entity to block consummation of the Sale, including by defending any ~~Proceeding~~ such 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 ~~Legal Restraint~~ Order that makes illegal or prohibits the consummation of the Sale resulting from any ~~Proceeding. Notwithstanding the foregoing~~ such Action, inquiry, audit, notice of violation, summons, subpoena 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 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 faithinvestigation. (e) ~~Notwithstanding any other provision~~ In furtherance of ~~this Agreement, but subject in all respects to~~ the ~~last sentence in this Section 5.6(e)~~foregoing, Purchaser shall take all ~~reasonable~~ actions ~~necessary,~~ necessary to avoid or eliminate each and every impediment under any Antitrust Laws and in connection with any of the Regulatory ~~Laws,~~ Approvals 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) 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 Acquired Subsidiaries~~Everest, ~~Purchaser,~~ Olympus and their respective ~~Subsidiaries;~~ Affiliates and (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 (iv) otherwise taking or committing to take actions that after the Closing ~~Date~~ would limit ~~Purchaser~~Everest’s, Olympus’s or ~~its Subsidiaries~~any of their respective Affiliates’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of ~~the Acquired Subsidiaries~~Everest, ~~Purchaser, and~~ Olympus or their respective ~~Subsidiaries, and in~~ Affiliates. In that regard Purchaser shall ~~cause the Acquired Subsidiaries to~~ and, if requested by Purchaser, Everest or Olympus shall (but, ~~without modifying Purchaser~~subject to each Party’s obligations under this Agreement, including ~~the obligations set forth in~~ this Section ~~5.6)~~ 7.6, and 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~~ 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, ~~the ability of Purchaser~~that Purchaser shall not be obligated to take or agree or commit to take, ~~the Acquired Subsidiaries~~and neither Everest nor Olympus shall discuss, propose, agree or ~~their respective Subsidiaries~~ commit to ~~retain~~take, any of such action that is not conditioned on the ~~businesses, product lines or assets of the Acquired Subsidiaries (after giving effect to the Restructuring Transactions), Purchaser, or any of their respective Subsidiaries~~Closing. ~~All such efforts by Purchaser shall be unconditional, and no~~ No actions taken pursuant to this Section ~~5.6(e~~7.6(e) ~~in connection with obtaining consents or approvals under applicable Competition Laws~~ shall be considered for purposes of determining whether a Material Adverse Effect has ~~occurred; provided, however, that the effectiveness of any such action to be taken by Purchaser~~ occurred or may ~~be conditioned upon the Closing~~occur. Notwithstanding the foregoing or any other provision of this Agreement to the contrary~~: (i) the obligations of~~ , in no event shall Purchaser ~~under this Section 5.6~~ be obligated to, and Everest and Olympus shall not ~~include Purchaser committing to (whether or not conditioned upon~~ agree with a Governmental Entity without 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 prior written consent of Purchaser, ~~the Acquired Subsidiaries or the Business~~to (A) divest, ~~taken as a whole (after giving effect to the Closing~~hold separate, 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”)license, or ~~(y) with respect to obtaining any approval~~ otherwise encumber the assets or businesses of ~~the FCC~~ Everest, Olympus 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 their respective Affiliates if such ~~conditions, requirements, actions or other remedies being hereinafter referred to as “Conditions”) to the extent such Conditions~~actions, individually or in the aggregate, would be material to the financial condition, business 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~~Everest and its Subsidiaries, ~~the Acquired Subsidiaries (~~taken as a whole) , or ~~the Business (after giving effect~~ material to the ~~Closing~~financial condition, ~~to the transactions contemplated hereby to occur on~~ business or ~~prior to the Closing~~results of operations of Olympus and its Subsidiaries, ~~and to Purchaser’s Operational Plan) (any such Condition being hereinafter referred to~~ taken as a ~~“Burdensome Condition”); provided that~~whole, without limiting the foregoing in clauses (x) and (y), the parties hereto acknowledge that the type of such actions or Conditions that may 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) divest, hold separate, license, accept any operational modification or restriction with respect to or otherwise encumber 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 assets or businesses of ~~their Affiliates (other than~~ Purchaser ~~and~~ or 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 consents, approvals or waivers pursuant to this Section 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: Deed (WEX Inc.)

Required Actions. (a) Purchaser and ~~Sellers~~ Seller shall, and shall ~~use~~ cause their respective ~~reasonable best efforts to take~~Affiliates to, ~~or cause to be taken,~~ take 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 the most expeditious manner possible the ~~Transactions~~Sale and the other transactions contemplated by this Agreement, ~~including:~~ including (i) the preparation and filing of all forms, ~~registrations~~ registrations, notifications and notices required to be filed to consummate the ~~Sale;~~ 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, declaratory ruling, Order or approval of, or any exemption by, any Governmental Entity (which actions shall include furnishing all information required under the HSR Act or any other applicable Competition Laws or under the FPA, NYPSL or with respect to any other Required ~~Regulatory Approvals;~~ Approval and including the actions set forth on Section 5.3(a) of the Seller Disclosure Schedule) required to be obtained or made by Purchaser or Seller or any of their respective Affiliates in connection with the Sale and the other transactions contemplated by this Agreement, and (iii) the execution and delivery of any additional instruments ~~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 ~~Sellers~~ Seller and Purchaser ~~(1)~~ 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 ~~(2) shall~~ not 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 ~~Required Regulatory Approval; provided~~consent, ~~however~~clearance, ~~that Purchaser shall be permitted to file~~ expiration or termination of a waiting period, authorization, declaratory ruling, Order or approval of, or any ~~additional or updated applications for~~ exemption by, 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 this Agreement (such approval not Governmental Entity necessary to be ~~withheld, conditioned~~ obtained at or ~~delayed,~~ prior to the ~~extent any such approval~~ Closing or would ~~not~~ 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 ~~occurring later than~~ or would reasonably be expected to result in the ~~Outside Date)~~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 ~~Sellers~~ 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 ~~Required Regulatory Approval~~exemptions by, ~~including~~ any Governmental Entity for the Sale and the other transactions contemplated by ~~working cooperatively in connection with any sales, divestitures or dispositions of assets or businesses if and to the extent required to be undertaken pursuant to the provisions of~~ this ~~Section 5.6~~Agreement. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 5.2, to the extent not prohibited by applicable Law, each party shall promptly consult with the other party to this Agreement to provide any necessary information with respect to (and, in the case of correspondence, provide the other party (or ~~its~~ their counsel) copies of) all filings made by such party with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement, the Sale and the other transactions contemplated by this Agreement. Subject to the Confidentiality Agreement and Section 5.2, to the ~~Sale. Each~~ 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 ~~orally~~ of) any ~~material~~ communication from any Governmental Entity regarding the ~~Sale~~Sale or the other transactions contemplated by this Agreement, and permit the other party to review and discuss in advance, and consider in good faith the views of the other party in connection with, any proposed ~~material~~ written or oral communication or submission with or to any such Governmental ~~Entity~~Entity regarding the Sale or the other transactions contemplated by this Agreement. If ~~either~~ 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~~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. ~~To the extent practicable, neither Sellers nor Purchaser~~ Each party shall not participate in any meeting with any Governmental Entity in connection with this Agreement or the ~~Sale (~~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~~ and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate thereat. To Subject to the Confidentiality Agreement and Section 5.2, to the extent ~~permitted~~ not prohibited by applicable Law, each party shall furnish the other party with copies of all ~~material~~ correspondence, ~~filings~~ filings, submissions and ~~material~~ 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~~Sale or the other transactions contemplated by this Agreement, 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~~Entity or other such Person regarding the Sale or the other transactions contemplated by this Agreement. ~~Notwithstanding anything in~~ Purchaser and Seller may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other party under this Agreement as “outside counsel/corporate in-house antitrust counsel only.” Such designated materials provided by Purchaser to Seller or by Seller to Purchaser pursuant to this Section ~~5.6~~ 5.3, and the information contained therein, shall be given only to the ~~contrary~~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), ~~neither~~ officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Purchaser ~~nor Sellers shall~~ or Seller, as the case may be) or its legal counsel; it being understood that materials provided pursuant to this Agreement may be ~~obligated~~ redacted (i) to ~~take~~ remove references concerning the valuation of the Business or ~~agree~~ the Sale Process, (ii) as necessary to ~~commit to take any action that would violate~~ comply with contractual arrangements or applicable Law ~~or their respective covenants under the Confidentiality Agreement or Section 5.5~~and (iii) as necessary to address reasonable privilege concerns. (c) Purchaser and ~~Sellers~~ Seller shall ~~file,~~ 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 ~~sixty-~~five (655) ~~calendar~~ 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 fifteen (15) Business Days after the date of this Agreement, (iii) as promptly as practicable, but in any event no later than thirty (30) days after the date of this ~~Agreement~~ Agreement, a petition seeking (~~unless mutually extended~~ 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 ~~Purchaser~~ 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 ~~Sellers~~(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”), ~~notifications under~~ by Seller, as guarantor, on behalf of PSEG Power New York, Inc., for the ~~HSR Act~~benefit of the New York State Department of Public Service acting as agent for the NYPSC, and ~~Purchaser~~ (2) the termination of the NYPSC Guaranty upon its replacement, and ~~Sellers shall file and provide~~(iv) except as otherwise provided herein, any filings and/or notifications required in respect of any other Required Approvals as promptly as ~~practicable, any other filings and/or notifications or information required to obtain~~ practicable after the Required Regulatory Approvals, including to the extent applicable, 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 date of ~~State Regulators~~this Agreement. In the event that the parties receive a request for ~~any~~ additional information or documentary materials after an initial notification pursuant to the HSR Act or any ~~such notification~~ other applicable Competition Laws, or ~~filing~~a request for additional information from FERC or any other Governmental Entity in connection with any other Required Approvals, the parties shall ~~respond~~ use their respective reasonable best efforts to comply with such requests, as applicable, as promptly as ~~possible~~possible and produce documents, responses to interrogatories, or other information on a rolling basis, and counsel for both parties ~~will~~ shall closely cooperate during the entirety of any such investigatory or review process. (d) Purchaser and ~~Sellers~~ Seller shall, and shall cause their respective Affiliates to, use their respective reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Sale and 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, 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”)applicable Law. In connection therewith, if any ~~Proceeding~~ Action is instituted (or threatened to be instituted) challenging the Sale or the other transactions contemplated by this Agreement as violative of any ~~Regulatory Laws~~applicable Law, Purchaser and ~~Sellers~~ Seller shall jointly (to the extent practicable) use their ~~respective~~ reasonable best efforts to initiate and/or participate in any ~~Proceedings~~proceedings, whether judicial or administrative, in order ~~to:~~ to (i) oppose or defend against any ~~action~~ Action by any Governmental Entity to prevent or enjoin the consummation of the ~~Sale;~~ Sale or the other transactions contemplated by this Agreement and/or (ii) take such action as necessary to ~~oppose~~ overturn any regulatory ~~action~~ Action by any Governmental Entity to block consummation of the ~~Sale~~Sale or the other transactions contemplated by this Agreement, including by defending any ~~Proceeding~~ 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 ~~Legal Restraint~~ Order that makes illegal or prohibits the consummation of the Sale or the other transactions contemplated by this Agreement 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 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 faithAction. (e) Notwithstanding any other provision of this Agreement, ~~but subject in all respects to~~ with the ~~last sentence in this Section 5.6(e)~~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 ~~reasonable~~ actions ~~necessary,~~ necessary to avoid or eliminate each and every impediment under ~~any Regulatory 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:~~ including (i) proposing, negotiating, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, licensing, divestiture or disposition of any businesses, ~~product lines~~ assets or ~~assets~~ properties of the ~~Acquired Subsidiaries~~Transferred Entities, ~~Purchaser,~~ 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 actionAffiliates, and (ivii) otherwise taking or committing to take actions that after the Closing ~~Date~~ would limit Purchaser’s ’s, the Transferred Entities’ or ~~its Subsidiaries~~their respective Affiliates’ freedom of action with respect to, or its or their ability to retain, operate, vote, transfer, receive dividends, or otherwise exercise full ownership rights with respect to any businesses, ~~product lines~~ assets or ~~assets~~ properties of the ~~Acquired Subsidiaries~~Transferred Entities, ~~Purchaser,~~ Purchaser and their respective Subsidiaries, 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 their respective Subsidiaries to retain, any of the businesses, product lines or assets of the Acquired Subsidiaries (after giving effect to the Restructuring Transactions), Purchaser, or any of their respective SubsidiariesAffiliates. All such efforts by Purchaser shall be unconditional, and no actions taken pursuant to this Section ~~5.6(e~~5.3(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; provided, however, that the effectiveness of any such action to be taken by Purchaser~~ occurred or may ~~be conditioned upon the Closing~~occur. Notwithstanding the foregoing or ~~any other provision of this Agreement~~ 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 (~~i) the obligations of~~ other than Purchaser ~~under~~ or its Subsidiaries), be required to (and nothing in this Section ~~5.6~~ 5.3 shall ~~not include~~ be interpreted as requiring Purchaser ~~committing to~~ or any of its Affiliates to) (~~whether or~~ x) take any action that is 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~~ consent to ~~obtaining~~ any ~~approval of~~ divestiture, hold separate order, limitation on conduct or other remedial action impacting any business or Person other than the ~~FCC or any State Regulators required in respect of~~ Transferred Entities. Notwithstanding anything herein to the ~~Transactions contemplated herein~~contrary, ~~taking any actions or accepting any conditions, requirements~~Seller shall not be obligated to take, or ~~other remedies proposed~~agree or commit to take, ~~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 be proposed, or that Purchaser may be requested or required to accept, are illustrated by action (A) that is not conditioned on 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; Closing or (B) that relates to the ~~specific FCC regulatory actions identified~~ Retained Businesses, and 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~~ event shall Seller or any of ~~their~~ its Affiliates ~~(other than Purchaser~~ 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 ~~Subsidiaries), nor any~~ Affiliates shall have no direct or indirect ~~equityholder of Purchaser (~~obligation 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 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~~’s obligations~~ . (f) Purchaser agrees 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~~ security and assurances 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; 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 ~~filing~~ fees and ~~similar~~ payments (including filing fees ~~under the HSR Act~~and legal, economist and other professional fees) to any Governmental Entity in order to obtain any ~~consents~~consent, ~~approvals~~ clearance, expiration or ~~waivers~~ termination of a waiting period, authorization, Order or approval pursuant to this Section ~~5.6~~5.3, other than the fees of and payments (x) to ~~Sellers’~~ Seller’s legal and professional ~~advisors~~advisors and (y) arising out of any Excluded Liability. (hg) 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 Notwithstanding anything to the ~~estimated Closing Date (as reasonably estimated by the parties)~~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 ~~its own expense~~Seller’s option, ~~prepare and delive~~(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 and ~~Sellers~~ Parent shall, and shall cause their respective Subsidiaries to, 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 the most expeditious manner possible the Transactions, including: (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Sale; (ii) taking all actions reasonably necessary to obtain (and cooperating with each other in obtaining) the Required Regulatory Approvals; (iii) the execution and delivery of any additional instruments reasonably necessary to consummate the Sale 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 Sellers and Purchaser (1) shall use 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 ~~fulfill~~ consummate and make effective in the most expeditious manner possible the Sale and the other transactions contemplated by this Agreement, including (i) preparing and filing all ~~conditions precedent~~ filings, forms, registrations, and notifications required to be filed to consummate the Sale and the other transactions contemplated by this Agreement; (ii) using reasonable best efforts to obtain (and cooperate with each other in obtaining) all consents, clearances, expiration or termination of any waiting periods, authorizations, Orders or approvals of, or any exemptions by, any Governmental Entity, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or consummation of the Sale or the other transactions contemplated by this Agreement, and (iv) executing and delivering any additional instruments necessary to consummate the Sale and the other transactions contemplated by this Agreement and ~~(2) shall not take any action after~~ to fully carry out the ~~date~~ purposes of this Agreement that would reasonably be expected to materially delay the obtaining of, or result in not obtaining, any Required Regulatory Approval; provided, however, that Purchaser shall be permitted to file any additional or 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 this Agreement (such approval not to be withheld, conditioned or delayed, to the extent any such approval would not reasonably be expected to result in the Closing occurring later than the Outside Date)Agreement. (b) ~~Prior to the Closing,~~ Purchaser and ~~Sellers~~ Parent shall, and shall each keep the other reasonably apprised of the status of matters relating to the completion of the Sale and work cooperatively in connection with obtaining 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 to be undertaken pursuant to the provisions of this Section 5.6. In that regard, prior to the Closing, each party shall promptly consult with the other party to this Agreement to provide any necessary information with respect to (and, in the case of correspondence, provide the other party (or its counsel) copies of) all filings made by such party with any Governmental Entity or any other information supplied by such party cause their respective Affiliates to, or correspondence with, a Governmental Entity in connection with this Agreement and the Sale. 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 regarding the Sale, and permit the other party to review and discuss in advance, and consider in good faith the views of the other party in connection with, any proposed material written or oral communication with any such Governmental Entity. If 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, 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. To the extent practicable, neither Sellers nor Purchaser shall participate in any meeting with any Governmental Entity 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 gives the other party the opportunity to attend and participate thereat. To the extent permitted by Law, each party shall furnish the other party with copies of all material correspondence, filings and material communications between it and any such 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 obligated to take or agree to commit to take any action that would violate applicable Law or their respective covenants under the Confidentiality Agreement or Section 5.5. (c) Purchaser and Sellers shall file, as promptly as practicable, but in any event no later than ~~sixty-five~~ ten (6510) ~~calendar days~~ Business Days after the date of this ~~Agreement (unless mutually extended by Purchaser and Sellers)~~Agreement, notifications under the HSR Act, and ~~Purchaser and Sellers shall file and provide~~to make or file, as promptly as ~~practicable~~practicable all other filings, forms, registrations and notifications with any ~~other filings and/or notifications or information~~ Governmental Entity required to ~~obtain~~ be filed to consummate the ~~Required Regulatory Approvals, including to~~ Sale and the ~~extent applicable, filing all applications with the FCC and~~ other transactions contemplated by this Agreement under any applicable ~~State Regulators that may be required by~~ Competition Law. Purchaser and Parent shall request early termination of any applicable waiting periods under the ~~Communications Act or similar rules~~Competition Laws and, ~~regulations, policies, instructions and orders of State Regulators. In~~ in the event that ~~the parties~~ Purchaser or Parent receive a request for information or documentary material pursuant to the HSR Act or any ~~additional information after any such notification or filing~~other Competition Law (a “Second Request”), ~~the parties shall respond~~ 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 ~~requests, as applicable,~~ Second Request as promptly as ~~possible, and counsel for both parties will closely cooperate during the entirety of any such investigatory or review process~~practicable. (dc) ~~Purchaser~~ In furtherance of the covenants in this Section 5.3 and Sellers shall use their respective reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Sale under the HSR Act, the ▇▇▇▇▇▇▇ Act, as amended, the ▇▇▇▇▇▇▇ Act, as amended, the Federal Trade Commission Act, as amended, the Communications Laws, or notwithstanding any other ~~United States federal or state or foreign or supranational Laws that are designed or intended to prohibit~~provision of this Agreement, ~~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, i) if any ~~Proceeding~~ 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 ~~Regulatory Laws~~Competition Law, ~~Purchaser and Sellers~~ each of the parties hereto shall ~~jointly (to the extent practicable)~~ use ~~their respective~~ its reasonable best efforts to ~~participate in~~ contest and resist any ~~Proceedings, whether judicial or administrative, in order to: (i) oppose or defend against any action by any Governmental Entity to prevent or enjoin the consummation of the Sale; and/or (ii) take~~ such action as necessary to oppose any regulatory action by any Governmental Entity to block consummation of the Sale, including by defending any Proceeding brought by any Governmental Entity in order to avoid the entry of, or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction, or ~~terminated~~other order, ~~including by appeal if necessary~~whether temporary, ~~any Legal Restraint resulting~~ preliminary or permanent, that results from ~~any Proceeding. Notwithstanding the foregoing~~ such action or ~~any other provision of this Agreement to the contrary~~proceeding and that prohibits, ~~(1) Purchaser shall, on behalf~~ prevents or restricts consummation 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 Sale on or ~~causing the waiting periods or other requirements under such Competition Laws to terminate or expire no later than~~ before 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; Date and (3ii) 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 ~~necessary,~~ as may be necessary to avoid or eliminate each and every impediment under the HSR Act or any ~~Regulatory Laws,~~ 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)~~ including proposing, negotiating, committing to and effecting, by consent decree, hold separate Order, or ~~otherwise,~~ otherwise (A) the sale, divestiture or disposition of or otherwise hold separate (including by establishing a trust or otherwise), any businesses, product ~~lines~~ lines, assets, or ~~assets~~ equity interests of the ~~Acquired Subsidiaries~~Transferred Entities, Purchaser, ~~and~~ or 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 (ivB) otherwise taking or committing to take actions that after the Closing ~~Date~~ would limit Purchaser’s ’s, the Transferred Entities’ or ~~its~~ their respective Subsidiaries’ freedom of action with respect to, or its ~~or their~~ ability to operate and/or retain, any businesses, product ~~lines~~ lines, assets, or ~~assets~~ equity interests of the ~~Acquired Subsidiaries~~Transferred Entities, Purchaser, and their respective Subsidiaries, 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 their respective Subsidiaries to retain, any of the businesses, product lines or assets of the Acquired Subsidiaries (after giving effect to the Restructuring Transactions), Purchaser, or any of their respective Subsidiaries. All such efforts by Purchaser shall be unconditional, and no actions taken pursuant to this Section ~~5.6(e~~5.3(c) ~~in connection with obtaining consents or approvals under applicable Competition Laws~~ nor the impact thereof on the Business shall be considered for purposes of determining whether a Business Material Adverse Effect has ~~occurred; provided, however, that the effectiveness of any such action to be taken by Purchaser~~ occurred or may ~~be conditioned upon the Closing~~occur. Notwithstanding ~~the foregoing or any other provision of this Agreement~~ anything herein 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 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 Parent shall not be obligated to take or agree or commit to take any ~~action:~~ such action (i1) 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 ~~business, operations, assets, liabilities, product lines or Subsidiary not to be transferred~~ other actions pursuant to this Section 5.3, and, to the extent not prohibited by applicable Law, Purchaser and ~~in accordance with~~ Parent shall each keep the ~~terms~~ other apprised on a current basis of the status of matters relating to the completion of the Sale and ~~conditions of~~ the other transactions contemplated by this Agreement, including promptly furnishing the other with copies of notices or other communications received by Purchaser and Parent, as the case may be, or any of their respective Affiliates, from any third party and/or any Governmental Entity with respect to the Sale or the other transactions contemplated by this Agreement. Subject to applicable Law relating to the exchange of information (including the Confidentiality Agreement), Purchaser and Parent shall permit counsel for the other party a reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed notifications or filings and any written communications or submissions to any Governmental Entity. Purchaser and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other party under this Agreement as “outside counsel only.” Such designated materials, 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 to employees, officers or directors of the recipient unless written permission is obtained in advance from the source of the materials (Purchaser or Parent, as the case may be) or its legal counsel in advance of it being shared; or it being understood that materials provided pursuant to this Agreement may be redacted (i) to remove references concerning the valuation of the Business, (ii) ~~that would amend~~ as necessary to comply with contractual arrangements and (iii) as necessary to address reasonable privilege concerns. Purchaser and Parent shall not participate in any ~~material respect the terms of~~ meeting (whether in-person, by telephone, or otherwise) with any Governmental Entity in connection with this Agreement or the Sale, or with any ~~Ancillary~~ 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 ~~that would otherwise adversely affect~~ the ~~economic benefits of~~ Sale, unless it consults with the ~~Transactions accruing~~ other party in advance and, to ~~Sellers~~the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate thereat. (ge) Purchaser agrees to provide such ~~information reasonably available~~ security and assurances 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~~and legal, economist and other professional fees) to any third party or any Governmental Entity ~~in order~~ to obtain any ~~consents~~consent, ~~approvals~~ clearance, expiration or ~~waivers~~ termination of a waiting period, authorization, Order or approval pursuant to this Section ~~5.6~~5.3. Section 5.5 or Section 5.22, other than the fees of and payments to ~~Sellers’~~ Parent’s 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 (Servicemaster Global Holdings Inc)

Required Actions. (a) ~~Purchaser~~ Subject to the terms and 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 the most expeditious manner possible the Transactions, including: (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Sale; (ii) taking all actions reasonably necessary to obtain (and cooperating with each other in obtaining) the Required Regulatory Approvals; (iii) the execution and delivery of any additional instruments reasonably necessary to consummate the Sale and to fully carry out the purposes conditions 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 Sellers and Purchaser (1) shall~~ party hereto will 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 ~~(2) shall not take any action~~ Applicable Law and regulations to consummate the Merger and the other transactions contemplated by this Agreement as soon as practicable after the date hereof, including preparing as promptly as practicable all necessary applications, notices, petitions, filings, ruling requests, and other documents and obtaining as promptly as practicable all the Company Approvals, as appropriate, and all other consents, waivers, licenses, orders, registrations, approvals, permits, rulings, authorizations and clearances necessary or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate the Merger or any of the other transactions contemplated by this Agreement ~~that would reasonably~~ (collectively, the “Required Approvals”). The Company shall take all necessary steps, in consultation with Parent, including the Company’s making the necessary payments and incurring the obligations, fees, costs and expenses required to obtain the relevant consents and approvals referred to on Section 4.01(d)(3) of the Company Disclosure Letter (the “Contract Consents”) at or immediately prior to the Closing in the manner indicated thereon. With regard to Company Costs, only 50% of the first $750,000 of payments, obligations (determined at their fair net present value), fees, costs and expenses incurred or assumed by the Company to obtain the Contract Consents at Closing, including payments required to be ~~expected~~ made by the Company pursuant thereto after the Closing and payments to ~~materially delay~~ settle or finally resolve any third party Claims with respect thereto (all such fees, costs, expenses and payments, the ~~obtaining of~~“Consent Costs”), ~~or result~~ incurred by the Company in ~~not obtaining, any Required Regulatory Approval; provided, however, that Purchaser~~ order to obtain the Contract Consents shall be ~~permitted~~ included as Company Costs and in the Company Actual Expense Amount with 100% of Consent Costs in excess of $750,000 being Company Costs and included in the Company Actual Expense Amount. Notwithstanding the foregoing the Company will not be obligated to ~~file~~ incur in the aggregate more than $1,125,000 of Consent Costs in order to obtain the Contract Consents unless Parent requires such and in connection therewith Parent agrees that, except as provided in Section 8.01(j), with respect to Consent Costs in excess of $1,125,000, none of such Consent Costs in excess of $1,125,000 will be Company Costs such that, by way of example, if the Consent Costs were $1.5 million only $750,000 of such Consent Costs would be Company Costs and included in the Company Actual Expense Amount, calculated as follows: (50% x $750,000) + ($1,125,000 - $750,000). The Company shall not be obligated to make any ~~additional~~ payment or ~~updated applications for~~ incur any ~~Required Regulatory Approval that may be required~~ obligations, fees, costs or expenses payable to a third party (other than attorneys’ fees, and costs of experts and other litigation costs) in connection therewith, except 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 this Agreement (such approval not to be withheld, conditioned or delayed, to the extent any such approval would not reasonably be expected to result in the Closing occurring later than the Outside Date)Closing. (b) ~~Prior to the Closing, Purchaser and Sellers~~ The parties shall each ~~keep the~~ cooperate and consult with each other ~~reasonably apprised of the status of matters relating to the completion of the Sale and work cooperatively~~ in connection with ~~obtaining~~ the actions referenced in Section 6.04(a) to obtain all Required Approvals. In particular, the Company shall (1) furnish as promptly as reasonably practicable to Parent any ~~Required Regulatory Approval~~information concerning the Company and its business, ~~including by working cooperatively~~ properties and personnel as Parent may reasonably request, in connection with any ~~sales, divestitures~~ filing or ~~dispositions of assets or businesses if~~ submission and to the extent required to be undertaken pursuant to the provisions of this Section 5.6. In that regard, prior to the Closing, each party shall promptly consult with the other party to this Agreement to provide any necessary information with respect to (and, in the case of correspondence, provide the other party (or 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 and the Sale. Each party to this Agreement shall promptly inform the~~ any investigation or other ~~party to this Agreement~~inquiry, including any proceeding initiated by a private party, and ~~if in writing, furnish the other party with copies of~~ (~~or, in the case of oral communications, advise the other party orally of~~2) ~~any material communication from any Governmental Entity regarding the Sale, and~~ permit ~~the other party~~ Parent to review ~~and discuss~~ in advance, and consider ~~in good faith the views~~ all of ~~the other party~~ Parent’s reasonable comments in connection with, any proposed ~~material~~ written ~~or oral~~ communication ~~with~~ between it and any ~~such~~ Governmental Entity. ~~If either~~ In addition, each party shall (i) promptly inform the other party of (and supply to ~~this Agreement~~ the other party) any communication (or ~~any representative of~~ other correspondence or memoranda) received by such party ~~receives a request for additional information~~ from, or ~~documentary material from~~ given by such party to, any Governmental Entity ~~with respect to the Sale, then such party will make,~~ and of any material communication received or cause to be made, promptly and after consultation with the other party to this Agreement, an appropriate response in compliance with such request. To the extent practicable, neither Sellers nor Purchaser shall participate in any meeting with any Governmental Entity given in connection with ~~this Agreement~~ any proceeding by or meeting with a private party, in each case regarding any of the ~~Sale~~ transactions contemplated hereby, and (~~or make oral submissions at meetings or in telephone or other conversations~~ii) ~~unless it consults~~ consult with the other party in ~~advance~~ advance, to the extent practicable and ~~gives~~ not prohibited by law, of any meeting or conference with any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent permitted by any applicable Governmental Entity or other Person, give the other party the opportunity to attend and participate ~~thereat~~in such meetings and conferences. To In furtherance and not in limitation of the ~~extent permitted by Law~~foregoing, ~~each party shall furnish the other party with copies of all material correspondence, filings and material communications between it and any such Governmental Entity with respect to this Agreement~~ Parent 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 obligated to take or Company agree ~~to commit to take any action~~ that would violate applicable Law or their respective covenants under the Confidentiality Agreement or Section 5.5. (c) Purchaser and Sellers shall file, as promptly as practicable, but in any event no later than sixty-five (65) calendar days after the date of this Agreement (unless mutually extended by Purchaser and Sellers), notifications under the HSR Act, and Purchaser and Sellers shall file and provide, as promptly as practicable, any other filings and/or notifications or information required to obtain the Required Regulatory Approvals, including to the extent applicable, 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 event that the parties receive a request for any additional information after any such notification or filing, the parties shall respond to such requests, as applicable, as promptly as possible, and counsel for both parties will closely cooperate during the entirety of any such investigatory or review process. (d) Purchaser and Sellers shall use their respective reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the 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 Proceeding is instituted (or threatened to be instituted) challenging the Sale as violative of any Regulatory Laws, Purchaser and Sellers shall jointly (to the extent practicable) use their respective reasonable best efforts to participate in any Proceedings, whether judicial or administrative, in order to: (i) oppose or defend against any action by any Governmental Entity to prevent or enjoin the consummation of the Sale; and/or (ii) take such action as necessary to oppose any regulatory action by any Governmental Entity to block consummation of the Sale, including by defending any Proceeding brought by any Governmental Entity in order to avoid the entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any Legal Restraint resulting from any 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 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 necessary, to avoid or eliminate each and every impediment under any 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, 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 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 (iv) otherwise taking or committing to take actions that after the Closing Date would limit Purchaser’s or its Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Acquired Subsidiaries, Purchaser, and their respective Subsidiaries, 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 their respective Subsidiaries to retain, any of the businesses, product lines or assets of the Acquired Subsidiaries (after giving effect to the Restructuring Transactions), Purchaser, or any of their respective Subsidiaries. All such efforts by Purchaser shall be unconditional, and no actions taken pursuant to this Section 5.6(e) in connection with obtaining consents or approvals under applicable Competition Laws shall be considered for purposes of determining whether a Material Adverse Effect has 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 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 notwithstanding anything to the contrary in this Agreement, ~~Sellers shall not be obligated~~ Parent and the Company shall, to ~~take~~ the maximum extent permitted by Applicable Law, cooperate in all meetings and communications with any Governmental Entity in connection with any Antitrust Laws, including by determining the appropriate timing of any such meeting or ~~agree~~ communication (including (x) the timing of the submission of any filing with, or ~~commit to take any action: (i) that relates~~ response to any ~~business~~request by, ~~operations~~a Governmental Entity, ~~assets, liabilities, product lines or Subsidiary not to be transferred~~ and (y) the timing of any action taken pursuant to ~~and in accordance with~~ Section 6.04(c)) such that the ~~terms and conditions of this Agreement; or (ii) that would amend in any material respect~~ requisite approvals are obtained prior to the ~~terms of this Agreement or any Ancillary Agreement or that would otherwise adversely affect the economic benefits of the Transactions accruing to Sellers~~Termination Date. (gc) ~~Purchaser agrees~~ In furtherance and not in limitation of the covenants of the parties contained in Sections 6.04(a) and 6.04(b), the Company and Parent shall, to ~~provide such information reasonably available as~~ the extent permitted by Applicable Law, use commercially reasonable efforts to ~~its financial capability~~share information, ~~resources~~ take consistent positions and ~~creditworthiness as may be reasonably requested by (i)~~ include one another in all communications to and meetings and discussions with third parties relating to any ~~Governmental Entity which reasonably requests such information~~ Claims arising under the Antitrust Laws in connection with this Agreement and/or the transactions contemplated herein subject to such party not compromising an applicable privilege. Notwithstanding the foregoing, nothing contained in this Agreement shall be construed so as to require Parent or Merger Sub, or any of their respective Subsidiaries or Affiliates, to sell, license, dispose of, or hold separate, or to operate in any specified manner, any assets or businesses of Parent, Merger Sub or the Company (or to require Parent or Merger Sub or any of their respective Subsidiaries or Affiliates to agree to any of the foregoing). The obligations of each party under Section 6.04(a) to use commercially reasonable efforts with respect to antitrust matters shall be limited to compliance with its obligations under this Section 6.04(c). (d) Each party hereto and its respective Board of Directors shall, if any state takeover statute or similar statute becomes applicable to this Agreement, the Merger or any other transactions contemplated hereby, take all reasonable action necessary to ensure that the Merger and the other transactions contemplated by this Agreement may be consummated as promptly as practicable on the terms contemplated hereby and otherwise to minimize the effect of such statute or regulation on this Agreement, the Merger and ~~(ii) any Governmental Entity or~~ the 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 consents, approvals or waivers pursuant to this Section 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: Merger Agreement (Iomed Inc)

Required Actions. (a) ~~Purchaser~~ Subject to the terms and ~~Sellers~~ conditions of this Agreement, each of the parties shall use its reasonable best efforts to consummate and make effective, as soon as reasonably possible, the Transactions, including the Merger. (b) Without limiting Section 6.03(a), Parent and the Parent Board and the Company and the Company Board, as the case may be, shall use their respective reasonable best efforts to ~~take,~~ (x) take all action reasonably appropriate to ensure that no takeover statute or ~~cause~~ similar statute or regulation is or becomes applicable 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 the most expeditious manner possible the Transactions, including: (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Sale; (ii) taking all actions reasonably necessary to obtain (and cooperating with each other in obtaining) the Required Regulatory Approvals; (iii) the execution and delivery of any additional instruments reasonably necessary to consummate the Sale and to fully carry out the purposes of this Agreement, ~~and (iv) not acquiring~~ the Merger or 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 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 other transaction contemplated by this Agreement and (2y) ~~shall not take~~ if any ~~action after the date of this Agreement that would reasonably be expected to materially delay the obtaining of,~~ takeover statute or ~~result in not obtaining, any Required Regulatory Approval; provided, however, that Purchaser shall be permitted to file any additional~~ similar statute or 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 this Agreement (such approval not to be withheld, conditioned or delayed, to the 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, Purchaser and Sellers shall each keep the other reasonably apprised of the status of matters relating to the completion of the Sale and work cooperatively in connection with obtaining 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 to be undertaken pursuant to the provisions of this Section 5.6. In that regard, prior to the Closing, each party shall promptly consult with the other party to this Agreement to provide any necessary information with respect to (and, in the case of correspondence, provide the other party (or 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 and the Sale. Each party to this Agreement shall promptly inform the other party regulation becomes applicable 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 regarding the Sale, and permit the other party to review and discuss in advance, and consider in good faith the views of the other party in connection with, any proposed material written or oral communication with any such Governmental Entity. If either party to this Agreement Merger or any representative of such party receives a request for additional information or documentary material from any Governmental Entity with respect to the Sale, then such party will make, or cause to be made, promptly and after consultation with the other ~~party to~~ transaction contemplated by this Agreement, an take all action reasonably appropriate ~~response in compliance with such request. To~~ to ensure that the ~~extent practicable, neither Sellers nor Purchaser shall participate in any meeting with any Governmental Entity in connection with~~ Transactions may be consummated as promptly as practicable on the terms contemplated by 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 gives the other party the opportunity to attend and participate thereat. To the extent permitted by Law, each party shall furnish the other party with copies of all material correspondence, filings and material communications between it and any such 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 obligated to take or agree to commit to take any action that would violate applicable Law or their respective covenants under the Confidentiality Agreement or Section 5.5Agreement. (c) ~~Purchaser and Sellers~~ Parent shall file, as promptly as practicable, but in any event no later than sixty-five (65) calendar days after the date of this Agreement (unless mutually extended by Purchaser and Sellers), notifications under the HSR Act, and Purchaser and Sellers shall file and provide, as promptly as practicable, any other filings and/or notifications or information required to obtain the Required Regulatory Approvals, including to the extent applicable, 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 event that the parties receive a request for any additional information after any such notification or filing, the parties shall respond to such requests, as applicable, as promptly as possible, and counsel for both parties will closely cooperate during the entirety of any such investigatory or review process. (d) Purchaser and Sellers shall use their respective take reasonable best efforts to ~~resolve such objections, if any, as may be asserted by any Governmental Entity with respect to~~ obtain the ~~Sale under~~ expiration or early termination of the HSR ~~Act~~Act waiting period, 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 including but not limited 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 Proceeding is instituted (or threatened to be instituted) challenging the Sale as violative of any Regulatory Laws, Purchaser and Sellers shall jointly (to the extent practicable) use their respective reasonable best efforts to participate in any Proceedings, whether judicial or administrative, in order to: (i) ~~oppose or defend against any action by any Governmental Entity~~ jointly proposing with the Company to ~~prevent or enjoin the consummation of the Sale; and/or (ii) take such action as necessary to oppose any regulatory action by any Governmental Entity to block consummation of the Sale~~negotiate, including by defending any Proceeding brought by any Governmental Entity in order to avoid the entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any Legal Restraint resulting from any 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 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 necessary, to avoid or eliminate each and every impediment under any 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, committing commit to and ~~effecting~~effect, by consent decree, hold separate ~~Order,~~ order or otherwise, the sale, ~~divestiture~~ divestiture, transfer, license, or disposition of, or prohibition or limitation on the ownership or operation by Parent, the Company or any of their respective Subsidiaries of, any ~~businesses~~portion of the business, ~~product lines~~ properties or assets of Parent, the ~~Acquired Subsidiaries, Purchaser, and~~ Company or any of their respective Subsidiaries; , (ii) ~~conducting the Business after the Closing Date in a specified manner;~~ terminating, modifying, or assigning existing relationships, contracts, or obligations of Parent or its Subsidiaries or Affiliates or those relating to any assets, properties, or businesses to be acquired pursuant to this Agreement, (iii) ~~committing to make capital expenditures~~ changing or ~~other expenditures in the Territory, including, in each case, by agreeing to undertakings required by a Governmental Entity that it~~ modifying any course of conduct regarding future operations of Parent or ~~any of~~ its Subsidiaries ~~will take~~or Affiliates or the assets, properties, or ~~refrain from taking~~businesses to be acquired pursuant to this Agreement, ~~any action, and~~ or (iv) otherwise taking or committing to take ~~actions~~ any other action that ~~after the Closing Date~~ would limit ~~Purchaser~~Parent’s or its Subsidiaries’ or Affiliates’ freedom of action with respect to, or ~~its or~~ their ability to retain, ~~any~~ one or more of their respective operations, divisions, businesses, product ~~lines~~ lines, customers, assets or assets of the Acquired Subsidiaries, Purchaser, and their respective Subsidiaries, 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 separaterights or interests, or ~~otherwise take or commit to take any action that limits its~~ their freedom of action with respect toto the assets, ~~the ability of Purchaser, the Acquired Subsidiaries~~properties, or ~~their respective Subsidiaries~~ businesses to retain, any of the businesses, product lines or assets of the Acquired Subsidiaries (after giving effect to the Restructuring Transactions), Purchaser, or any of their respective Subsidiaries. All such efforts by Purchaser shall be ~~unconditional, and no actions taken~~ acquired pursuant to this ~~Section 5.6(e) in connection with obtaining consents~~ Agreement (collectively, a “Divestiture Action”); provided that Parent or ~~approvals under applicable Competition Laws shall be considered for purposes of determining whether a Material Adverse Effect has occurred; provided, however, that the effectiveness of~~ any Parent Subsidiaries are not obligated to take any Divestiture Action or other action unless such action ~~to be taken by Purchaser may be~~ is expressly conditioned upon and is only effective after 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 Closing of the ~~Closing) (x) with respect to obtaining any of the Required Regulatory Approvals other than those governed by clause (y) below, taking any~~ Merger and such action ~~if such action, individually or together with any other proposed action(s) relating to the approvals governed by this clause (x),~~ would not reasonably be expected to have, individually or in the aggregate, a material adverse effect on the ~~condition (financial or otherwise),~~ business, ~~assets~~ financial condition or ~~result of~~ operations of ~~Purchaser,~~ Parent and its Subsidiaries from and after the ~~Acquired Subsidiaries or the Business~~Effective Time, taken as a ~~whole (~~whole. The Company shall agree to take any Divestiture Action requested by Parent if such actions are only effective after ~~giving effect~~ the Effective Time and conditioned upon the consummation of the Merger. In the event that any Divestiture Action is proposed by or acceptable to a Governmental Entity, Parent shall have the ~~Closing,~~ right to ~~the transactions contemplated hereby to occur on or prior to the Closing, and to~~ determine the manner in which to implement 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~~ requirement of such ~~action being hereinafter referred to as a “Material Action”)~~Governmental Entity; provided, ~~or (y) with respect to obtaining any approval of the FCC or any State Regulators required~~ that 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) no event shall Parent 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 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 Company (or any of ~~such equityholder’s~~ their respective Subsidiaries or other Affiliates~~), nor any portfolio company or investment fund Affiliated with any Guarantor, shall~~ ) be required to take or effect any such action that is not conditioned upon the consummation of the Merger; provided, further, that Parent shall consult with the Company and give consideration to the views of the Company on all matters relating to any possible Divestiture Action. (d) In addition, if any action ~~in connection with~~ or Proceeding is instituted (or threatened) challenging the ~~obligations~~ Merger or any other transaction contemplated by this Agreement as violating any antitrust, competition, foreign investment, trade regulation or similar Law or if any decree, order, judgment, or injunction (whether temporary, preliminary, or permanent) is entered, enforced, or attempted to be entered or enforced by any Governmental Entity that would make the Merger or any other transaction contemplated by this Agreement illegal or otherwise delay or prohibit the consummation of ~~Purchaser under Section 5.6~~the Merger or any other transaction contemplated by this Agreement, ~~including in respect of Purchaser’s obligations to~~ Parent, its Affiliates and Subsidiaries and the Company, its Affiliates and Subsidiaries, shall use reasonable best efforts to ~~obtain~~ (subject the limitations set forth in Section 6.03(c)) contest and defend any ~~clearance required under~~ such ~~Laws for the consummations~~ Claim, cause of action, or Proceeding to avoid entry of, or to have vacated, lifted, reversed, repealed, rescinded, or terminated, any decree, order, judgment, or injunction (whether temporary, preliminary, or permanent) that prohibits, prevents, or restricts consummation of the ~~Transactions,~~ Merger or any other ~~than responding~~ transaction contemplated by this Agreement. Parent shall be entitled to direct any ~~reasonable requests for information from Purchaser~~ such action or ~~Sellers that may be required~~ Proceeding described in ~~connection with any filings with any Governmental Entity pursuant to~~ this Section ~~5.6~~6.03(d); provided, however, that it shall afford the Company a reasonable opportunity to participate therein. (fe) ~~Notwithstanding anything to~~ Without limiting the ~~contrary in this Agreement~~generality of the foregoing, ~~Sellers shall not be obligated to take or agree or commit to take any action~~each of Parent and the Company shall: (i) ~~that relates to any business, operations, assets, liabilities, product lines~~ make or ~~Subsidiary not~~ cause to be ~~transferred pursuant to~~ made, in consultation and ~~in accordance~~ cooperation with the ~~terms~~ other and ~~conditions~~ as promptly as practicable after the date of this Agreement~~; or~~ , an appropriate filing of a Notification and Report Form pursuant to the HSR Act relating to the Merger; (ii) ~~that would amend~~ use its reasonable best efforts to furnish to the other all assistance, cooperation and information required for any such registration, declaration, notice, application or filing and in ~~any material respect~~ order to achieve the ~~terms of this Agreement or any Ancillary Agreement or that would otherwise adversely affect the economic benefits of the Transactions accruing to Sellers.~~effects set forth in Section 6.03(b); (giii) ~~Purchaser agrees~~ give the other reasonable prior notice of any such registration, declaration, notice, application or filing and, to ~~provide such information~~ the extent reasonably ~~available as to its financial capability~~practicable, ~~resources and creditworthiness as may be reasonably requested by (i)~~ of any communication with any Governmental Entity ~~which reasonably requests such information~~ regarding the Merger (including with respect to any of the actions referred to in Section 6.03(c) 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, notice, filing, application or communication; (iv) use its reasonable best efforts to respond as promptly as practicable under the ~~transactions contemplated by this Agreement, and (ii)~~ circumstances to any inquiries received from any Governmental Entity or any other ~~third party whose consent~~ authority enforcing applicable antitrust, competition, foreign investment, trade regulation or ~~approval is sought~~ similar Laws for additional information or documentation in connection with ~~the transactions contemplated hereby. Whether~~ antitrust, competition, foreign investment, trade regulation or ~~not the Sale is consummated, Purchaser shall be responsible for all filing fees and~~ similar ~~payments~~ matters (including ~~filing fees~~ a “second request” under the HSR Act), and not extend any waiting period under the HSR Act or enter into any agreement with such Governmental Entities or other authorities not to consummate any of the Transactions, except with the prior written consent of the other party, which consent shall not be unreasonably withheld, conditioned or delayed; (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 ~~order~~ respect of the Merger (including with respect to ~~obtain~~ any ~~consents~~of the actions referred to in Section 6.03(c) and in this Section 6.03(e)) without the other, ~~approvals~~ (B) to the extent reasonably practicable, give the other reasonable prior notice of any such meeting or ~~waivers pursuant~~ conversation, (C) in the event one party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting or engaging in any such conversation or a communication is initiated by a Governmental Entity without advance notice, keep the other party reasonably apprised with respect thereto, (D) cooperate in the filing of any substantive memoranda, Parent 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 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 ~~Section 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~~ Agreement and the ~~rules~~Merger, ~~regulations, written policies, instructions~~ provided that each party may designate information as “outside counsel only,” 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~~ receiving party agrees to ~~the estimated Closing Date (as reasonably estimated by the parties), (i) Purchaser shall, at~~ instruct its ~~own expense, prepare and delive~~counsel not to disclose such information to its client.

Appears in 1 contract

Sources: Merger Agreement (Penn Virginia Corp)

Required Actions. (a) Seller and Purchaser will, and ~~Sellers shall use~~ will cause their respective Affiliates to, cooperate with each other and 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 the most expeditious manner possible the Transactions, including: (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 shall cause the Company to coordinate, the preparation and ~~filing~~ 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 ~~forms~~meetings with Governmental Entities in connection with the transactions contemplated by this Agreement (including the Required Regulatory Approvals); provided, ~~registrations~~ however, to the fullest extent practicable and ~~notices required~~ 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 ~~be filed to consummate~~ make, including the ~~Sale~~subject - 46 - matter, contents, intended agenda, and other aspects of any of the foregoing; (ii) ~~taking all actions reasonably necessary~~ consult and cooperate with the other Party, and to ~~obtain (and cooperating~~ take into account the comments of the other Party in connection with ~~each other in obtaining)~~ any of the ~~Required Regulatory Approvals~~matters covered by Section ‎5.5(a); (iii) permit representatives of the ~~execution and delivery of~~ other Party to participate to the maximum extent possible in any ~~additional instruments reasonably necessary to consummate the Sale and to fully carry out the purposes of this Agreement~~such communications, ~~and~~ 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 ~~senior notes issued under the Embarq Indenture for purposes~~ asset, property, business or Person (by way of ~~asserting an Event of Default~~ merger, consolidation, share exchange, investment, or other business combination, asset, stock or equity purchase, or otherwise) from any Person (~~as defined~~ other than, in the ~~Embarq Indenture~~case of Purchaser, from Seller or its Affiliates), (ii) ~~thereunder~~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. ~~Additionally~~In furtherance of and without limiting any of Purchaser’s or Seller’s covenants and agreements under this Section ‎5.5, each of ~~Sellers~~ Purchaser and ~~Purchaser (1)~~ 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 fulfill all conditions precedent to this Agreement and (2) shall not 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 Required Regulatory Approval; provided, however, that Purchaser shall be permitted to file any additional or 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 this Agreement (such approval not to be withheld, conditioned or delayed, to the 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, Purchaser and Sellers shall each keep the other reasonably apprised of the status of matters relating to the completion of the Sale and work cooperatively in connection with obtaining any Required Regulatory Approval, including by working cooperatively in connection with any sales, divestitures or dispositions of assets or businesses if steps and to the extent required to be undertaken pursuant to the provisions of this Section 5.6. In that regard, prior to the Closing, each party shall promptly consult with the other party to this Agreement to provide any necessary information with respect to (and, in the case of correspondence, provide the other party (or 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 and the Sale. 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 regarding the Sale, and permit the other party to review and discuss in advance, and consider in good faith the views of the other party in connection with, any proposed material written or oral communication with any such Governmental Entity. If 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, 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. To the extent practicable, neither Sellers nor Purchaser shall participate in any meeting with any Governmental Entity 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 gives the other party the opportunity to attend and participate thereat. To the extent permitted by Law, each party shall furnish the other party with copies of all ~~material correspondence, filings and material communications between it and any such Governmental Entity with respect to this Agreement and the Sale, and furnish the other party with such reasonably~~ undertakings 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 obligated to take or agree to commit to take any action that would violate applicable Law or their respective covenants under the Confidentiality Agreement or Section 5.5. (c) Purchaser and Sellers shall file, as promptly as practicable, but in any event no later than sixty-five (65) calendar days after the date of this Agreement (unless mutually extended by Purchaser and Sellers), notifications under the HSR Act, and Purchaser and Sellers shall file and provide, as promptly as practicable, any other filings and/or notifications or information required to obtain the Required Regulatory Approvals, including to the extent applicable, 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 event that the parties receive a request for any additional information after any such notification or filing, the parties shall respond to such requests, as applicable, as promptly as possible, and counsel for both parties will closely cooperate during the entirety of any such investigatory or review process. (d) Purchaser and Sellers shall use their respective reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the 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 Proceeding is instituted (or threatened to be instituted) challenging the Sale as violative of any Regulatory Laws, Purchaser and Sellers shall jointly (to the extent practicable) use their respective reasonable best efforts to participate in any Proceedings, whether judicial or administrative, in order to: (i) oppose or defend against any action by any Governmental Entity to prevent or enjoin the consummation of the Sale; and/or (ii) take such action as necessary to oppose any regulatory action by any Governmental Entity to block consummation of the Sale, including by defending any Proceeding brought by any Governmental Entity in order to avoid the entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any Legal Restraint resulting from any 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 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 necessary, to avoid or eliminate each and every impediment ~~under~~ asserted by any Governmental Entity in connection with obtaining the Required Regulatory ~~Laws~~Approvals, in each case, so as to enable the Closing to occur as promptly as ~~practicable~~ practicable, including (A) agreeing to conditions imposed by, or taking any action required by, any Governmental Entity, (B) defending through litigation on the merits, including appeals, any Action asserted by any court or other proceeding by any Person, including any Governmental Entity, that seeks to or could prevent or prohibit or impede, interfere with or delay the consummation of the Closing, (C) avoiding or eliminating any Purchaser Burdensome Condition or Seller Burdensome Condition, and ~~in any event no later than~~ proposing alternative conditions upon which the ~~Outside Date)~~Required Regulatory Approvals would be provided, ~~including:~~ (iD) 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 ~~businesses, product lines~~ assets or ~~assets~~ business of Purchaser or its Affiliates or of the ~~Acquired Subsidiaries, Purchaser~~Company, and ~~their respective Subsidiaries;~~ (ii2) ~~conducting the Business after the Closing Date in a specified manner; (iii) committing~~ with respect to ~~make capital expenditures or other expenditures in the Territory~~Seller, ~~including~~any Unregulated Non-Retail Business, in each case, by including entering into customary ancillary agreements relating to any such sale, divestiture, licensing or disposition, and (E) agreeing to ~~undertakings~~ 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 it 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 ~~its Subsidiaries will take, or refrain from taking, any action, and (iv) otherwise taking or committing to take actions that after the Closing Date would limit Purchaser~~Seller’s or its Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Acquired Subsidiaries, Purchaser, and their respective Subsidiaries, 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~~‎5.5. (d) 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 their respective Subsidiaries to retain, any of the businesses, product lines or assets of the Acquired Subsidiaries (after giving effect to the Restructuring Transactions), Purchaser, or any of their respective Subsidiaries. All such efforts by Purchaser shall be unconditional, and no actions taken pursuant to this Section 5.6(e) in connection with obtaining consents or approvals under applicable Competition Laws shall be considered for purposes of determining whether a Material Adverse Effect has 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~~ anything else in this Agreement to the contrary~~: (i) the obligations of~~ , neither 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~~ 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 ~~than those governed by clause (y) below~~investigation, ~~taking~~ consent to, or take any ~~action if such~~ action, ~~individually or together with any other proposed action(s) relating to the approvals governed by this clause (x)~~in each case, 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 Conditionsthat, individually or in the aggregate, would ~~or would~~ reasonably be expected to ~~materially reduce~~ have a material adverse effect on the ~~commercial value of~~business, ~~or result in an impact that is materially adverse to, or a cost that is material to, the~~ assets~~, business~~, results of operations or financial condition of Purchaser and its Affiliates (~~financial or otherwise) of~~ including the ~~Purchaser~~Company), ~~the Acquired Subsidiaries (~~taken as a whole~~) or the Business (~~, after giving effect to the ~~Closing~~Sale; provided, that Purchaser and its Affiliates (including the Company) shall be deemed to be the ~~transactions contemplated hereby to occur on or prior to~~ same size as the ~~Closing, and to Purchaser’s Operational Plan~~Company for purposes of this Section ‎5.5(d) (any such ~~Condition being hereinafter referred to as~~ action or requirement, a “Purchaser Burdensome Condition”); and provided ~~that~~further, ~~without limiting the foregoing in clauses (x) and (y), the parties hereto acknowledge that the type of such actions or Conditions that may be proposed, or that~~ any regulatory mitigation action taken by 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 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 ~~Agreement~~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 assets or business, other than any assets or business of the Unregulated Non-Retail Business, (ii) ~~any Governmental Entity~~ individually or ~~other third party whose consent~~ in the aggregate, would reasonably be expected to have a material adverse effect on the business, assets, results of operations 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 consents, approvals or waivers pursuant to this Section 5.6financial condition of Seller’s remaining electric businesses, other than the ~~fees~~ Unregulated Non-Retail Business, taken as a whole, after giving effect to the Sale; provided, that for the purposes of ~~and payments~~ this clause (ii) such remaining electric businesses shall be deemed to ~~Sellers’ legal and professional advisors.~~ be the same size as the Company; (hiii) To individually or in the ~~extent necessary~~ aggregate, would reasonably be expected to ~~comply with any state Laws and regulations and~~ have a material adverse effect on the ~~rules~~business, ~~regulations~~assets, ~~written policies, instructions and orders~~ results of operations or financial condition of the ~~FCC~~Unregulated Non-Retail Business, taken as a whole; provided, that for the purposes of this clause (iii) the Unregulated Non-Retail Business shall be deemed to be the same size as the Company, or (iv) individually or in the aggregate, would have a material adverse effect on the manner in which the remaining transmission or generation assets of Seller or any of its Affiliates are operated, including ~~those prohibiting~~ a change in control over such operations (any such action or requirement in (i), (ii), (iii) or (iv), a “~~slamming” as~~ Seller Burdensome Condition”); and provided, further, that none of the obligations of Seller or any of its Affiliates set forth in ~~47 C.F.R.~~ or contemplated by the Ancillary Agreements (in, for the avoidance of doubt, the forms attached to this Agreement), the matters set forth in Section ~~64.1120, at least 60 calendar days prior~~ 5.20 or the matters set forth in Section 5.20(a)(ii) of the Seller Disclosure Letter shall be taken into account in the determination of whether there has been a Seller Burdensome Condition. - 48 - (f) Notwithstanding the foregoing or anything else in this Agreement to the ~~estimated Closing Date (as reasonably estimated by the parties)~~contrary, ~~(i)~~ neither Seller nor Purchaser shall be required to, and neither Seller nor Purchaser shall, ~~at its own expense~~in connection with obtaining the Required Regulatory Approvals, ~~prepare and delive~~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.

Appears in 1 contract

Sources: Stock Purchase Agreement

Required Actions. (a) Seller and Purchaser will, and ~~Sellers shall use~~ 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,~~ steps and to do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to consummate and make effective in the most expeditious manner possible the Transactions, including: (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Sale; (ii) taking all actions reasonably necessary to obtain (and cooperating with each other in obtaining) the Required Regulatory Approvals; (iii) the execution and delivery of any additional instruments reasonably necessary to consummate the Sale 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 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 not 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 Required Regulatory Approval; provided, however, that Purchaser shall be permitted to file any additional or 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 this Agreement (such approval not to be withheld, conditioned or delayed, to the 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, Purchaser and Sellers shall each keep the other reasonably apprised of the status of matters relating to the completion of the Sale and work cooperatively in connection with obtaining 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 to be undertaken pursuant to the provisions of this Section 5.6. In that regard, prior to the Closing, each party shall promptly consult with the other party to this Agreement to provide any necessary information with respect to (and, in the case of correspondence, provide the other party (or 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 and the Sale. 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 regarding the Sale, and permit the other party to review and discuss in advance, and consider in good faith the views of the other party in connection with, any proposed material written or oral communication with any such Governmental Entity. If 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, 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. To the extent practicable, neither Sellers nor Purchaser shall participate in any meeting with any Governmental Entity 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 gives the other party the opportunity to attend and participate thereat. To the extent permitted by Law, each party shall furnish the other party with copies of all material correspondence, filings and material communications between it and any such 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 obligated to take or agree to commit to take any action that would violate applicable Law or their respective covenants under the Confidentiality Agreement or Section 5.5. (c) Purchaser and Sellers shall file, as promptly as practicable, but in any event no later than sixty-five (65) calendar days after the date of this Agreement (unless mutually extended by Purchaser and Sellers), notifications under the HSR Act, and Purchaser and Sellers shall file and provide, as promptly as practicable, any other filings and/or notifications or information required to obtain the Required Regulatory Approvals, including to the extent applicable, 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 event that the parties receive a request for any additional information after any such notification or filing, the parties shall respond to such requests, as applicable, as promptly as possible, and counsel for both parties will closely cooperate during the entirety of any such investigatory or review process. (d) Purchaser and Sellers shall use their respective reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity undertakings solely with respect to the ~~Sale under the HSR Act, the ▇▇▇▇▇▇▇ Act, as amended, the ▇▇▇▇▇▇▇ Act, as amended, the Federal Trade Commission Act, as amended, the Communications Laws,~~ Companies 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 Proceeding is instituted (or threatened to be instituted) challenging the Sale as violative of any Regulatory Laws, Purchaser and Sellers shall jointly (to the extent practicable) use their respective reasonable best efforts to participate in any Proceedings, whether judicial or administrative, in order to: (i) oppose or defend against any action by any Governmental Entity to prevent or enjoin the consummation of the Sale; and/or (ii) take such action as necessary to oppose any regulatory action by any Governmental Entity to block consummation of the Sale, including by defending any Proceeding brought by any Governmental Entity in order to avoid the entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any Legal Restraint resulting from any 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 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 necessary, to avoid or eliminate each and every impediment ~~under~~ asserted by any Governmental Entity in connection with obtaining the Required Regulatory ~~Laws~~Approvals, so as to enable the Closing to occur as promptly as ~~practicable (and in any event no later than the Outside Date)~~practicable, including: , solely with respect to the Companies or the Business, (iA) agreeing to conditions imposed by, or taking any action required by, any Governmental Entity, (B) defending through litigation on the merits, including appeals, any Action asserted by any court or other proceeding by any Person, including any Governmental Entity, that seeks to or would prevent or prohibit or impede, interfere with or delay the consummation of the Closing, (C) 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 ~~Acquired Subsidiaries~~Companies or the Business, ~~Purchaser~~including entering into customary ancillary agreements relating to any such sale, divestiture, licensing or disposition, and ~~their respective Subsidiaries;~~ (iiD) ~~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~~ 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 it 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, 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 ~~its Subsidiaries will take, or refrain from taking, any action, and (iv) otherwise taking or committing to take actions that after the Closing Date would limit Purchaser~~Seller’s or its Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Acquired Subsidiaries, Purchaser, and their respective Subsidiaries, 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~~5.5. (d) 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 their respective Subsidiaries to retain, any of the businesses, product lines or assets of the Acquired Subsidiaries (after giving effect to the Restructuring Transactions), Purchaser, or any of their respective Subsidiaries. All such efforts by Purchaser shall be unconditional, and no actions taken pursuant to this Section 5.6(e) in connection with obtaining consents or approvals under applicable Competition Laws shall be considered for purposes of determining whether a Material Adverse Effect has 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~~ anything else in this Agreement to the contrary: (i) ~~the obligations of~~ neither Seller nor Purchaser ~~under this Section 5.6~~ shall ~~not include~~ be required to, and neither Seller nor Purchaser ~~committing to (whether or not conditioned upon the consummation of the Closing) (x)~~ shall, in connection with ~~respect to~~ obtaining ~~any of~~ the Required Regulatory Approvals or setting such filings for hearing, settlement or other ~~than those governed by clause (y) below~~investigation, consent to the taking of any action ~~if such action~~or the imposition of any terms, ~~individually~~ conditions, limitations or ~~together~~ 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 ~~any other proposed action(s) relating~~ obtaining the Required Regulatory Approvals, consent to the ~~approvals governed by this clause (x)~~imposition of any terms, ~~would reasonably be expected to have, individually~~ conditions 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 limitations 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~~ Seller or any ~~State Regulators required in respect~~ of its Affiliates (other than the ~~Transactions contemplated herein, taking any actions or accepting any conditions, requirements, or other remedies proposed, requested, or required by the FCC~~ Companies) or any ~~State Regulators~~ of their respective businesses (~~any such conditions, requirements, actions or~~ other ~~remedies being hereinafter referred to as “Conditions”) to~~ than 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 PlanBusiness) (~~any such Condition being hereinafter referred to as~~ a “Seller Burdensome Condition”); ~~provided that, without limiting the foregoing in clauses (x)~~ and (y)iii) neither Purchaser nor Parent shall, including in connection with obtaining the ~~parties hereto acknowledge that the type of such actions or Conditions that may be proposed~~Required Regulatory Approvals, ~~or that Purchaser may be requested or required to accept, are illustrated by~~ (A) be required to consent to the ~~categories~~ imposition of ~~conditions, requirements, actions~~ any terms conditions or ~~other remedies that were imposed by the FCC (~~limitations on or with respect to ~~approvals required from the FCC)~~Parent, ~~by the State Regulators (with respect to approvals required from the State Regulators)~~ Purchaser 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~~ than, from and ~~its Subsidiaries)~~after the Closing, ~~nor any direct or indirect equityholder of Purchaser (~~the Companies) or any of ~~such equityholder’s Affiliates)~~their respective businesses (other than, ~~nor any portfolio company~~ from and after the Closing, the Business) or ~~investment fund Affiliated with any Guarantor, shall~~ (B) be required to ~~take~~ 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 ~~action in connection with~~ restriction on 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~~ operation 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~~properties or businesses of Parent or its Affiliates (other than, ~~product lines or Subsidiary not to be transferred pursuant to~~ from and ~~in accordance with~~ after the ~~terms and conditions of this Agreement; or~~ Closing, the Business) (~~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.~~ foregoing clause (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 consents, approvals or waivers pursuant to this Section 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 partiesiii), ~~(i)~~ a “Purchaser ~~shall, at its own expense, prepare and delive~~Burdensome Condition”).

Appears in 1 contract

Sources: Equity Interest Purchase Agreement (Gulf Power Co)

Required Actions. (a) Purchaser and ~~Sellers~~ Seller 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 the most expeditious manner possible the ~~Transactions~~Sale on the terms and subject to the conditions set forth in this Agreement, ~~including:~~ including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the 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 the ~~Required Regulatory Approvals;~~ HSR Act or any other Competition Laws) required to be obtained or made by Purchaser or Seller or any of their respective Affiliates in connection with the Sale, and (iii) the execution and delivery of any additional instruments ~~reasonably~~ necessary to consummate the Sale 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 ~~Sellers~~ Seller 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 not 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 ~~Required Regulatory Approval; provided~~consent, ~~however~~clearance, ~~that Purchaser shall be permitted to file~~ expiration or termination of a waiting period, authorization, Order or approval of, or any ~~additional or updated applications for~~ exemption by, 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 this Agreement (such approval not Governmental Entity necessary to be ~~withheld, conditioned~~ obtained at or ~~delayed,~~ prior to the ~~extent any such approval would not reasonably be expected to result in the Closing occurring later than the Outside Date)~~Closing. (b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and ~~Sellers~~ Seller shall each keep the other ~~reasonably~~ apprised of the status of matters relating to the completion of the Sale and work cooperatively in connection with obtaining all required consents, clearances, expirations or terminations of waiting periods, authorizations, Orders or approvals of, or any ~~Required Regulatory Approval~~exemptions by, any Governmental Entity. Purchaser and Seller shall coordinate with respect to the overall strategy relating to Competition Laws, including ~~by working cooperatively in connection~~ with respect to any ~~sales~~filings, ~~divestitures~~ notifications, submissions and communications with or ~~dispositions of assets or businesses if and~~ to any Governmental Entity; provided, however, that Purchaser shall make the final determination as to the ~~extent required to be undertaken pursuant to the provisions~~ appropriate course of ~~this Section 5.6~~action. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 5.2, to the extent not prohibited by applicable Law, each party shall promptly consult with the other party to this Agreement to provide any necessary information with respect to (and, in the case of correspondence, provide the other party (or 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 and the Sale. ~~Each~~ Subject to the Confidentiality Agreement and Section 5.2, to the extent not prohibited by applicable Law, each party to this Agreement shall promptly inform the other party to this Agreement, and if in ~~writing~~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 regarding the Sale, and permit the other party to review and discuss in advance, and consider in good faith the views of the other party in connection with, any proposed ~~material~~ written or (to the extent reasonably practicable) oral communication or submission with or to any such Governmental Entity. If ~~either~~ 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, 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. ~~To the extent practicable, neither Sellers nor Purchaser~~ Neither party shall participate in any meeting with any Governmental Entity in connection with this Agreement or the ~~Sale (~~Sale, or with any other Person in connection with any proceeding or Action by 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~~ and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate thereat. To Subject to the Confidentiality Agreement and Section 5.2, to the extent ~~permitted~~ not prohibited by applicable Law, each party shall furnish the other party with copies of all ~~material~~ correspondence, ~~filings~~ filings, submissions and ~~material~~ 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 ~~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~~Entity or other such Person. ~~Notwithstanding anything in~~ Purchaser and Seller may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other party under this Agreement as “outside counsel/corporate in-house antitrust counsel only.” Such designated materials and any materials provided by Purchaser to Seller or by Seller to Purchaser pursuant to this Section ~~5.6~~ 5.3, and the information contained therein, shall be given only to the ~~contrary~~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), ~~neither~~ officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Purchaser ~~nor Sellers shall~~ or Seller, as the case may be) or its legal counsel; it being understood that materials provided pursuant to this Agreement may be ~~obligated~~ redacted (i) to ~~take or agree~~ remove references concerning the valuation of the Business, (ii) as necessary to ~~commit~~ comply with contractual arrangements and (iii) as necessary to ~~take any action that would violate applicable Law or their respective covenants under the Confidentiality Agreement or Section 5.5~~address reasonable privilege concerns. (c) Purchaser and ~~Sellers~~ Seller shall file, as promptly as practicable, but in any event no later than ~~sixty-five~~ fifteen (6515) ~~calendar days~~ Business Days after the date of this Agreement (unless ~~mutually extended by~~ Purchaser and ~~Sellers~~Seller mutually agree to a later filing date), notifications under the HSR Act, and Purchaser and ~~Sellers~~ Seller shall ~~file and provide~~file, as promptly as practicable, any other filings and/or notifications ~~or information required to obtain the Required Regulatory Approvals, including to the extent applicable, filing all applications with the FCC and any~~ under applicable ~~State Regulators that may be required by the Communications Act or similar rules, regulations, policies, instructions and orders of State Regulators~~Competition Laws. In the event that the parties receive a request for ~~any~~ additional information or documentary materials after an initial notification pursuant to the HSR Act or any ~~such notification or filing~~other Competition Laws, the parties shall ~~respond~~ use their respective best efforts to certify compliance with such requests, as applicable, ~~as promptly as possible~~at the earliest practicable and advisable date and produce documents on a rolling basis, and counsel for both parties will closely cooperate during the entirety of any such investigatory or review process. (d) Purchaser and ~~Sellers~~ Seller shall use their respective ~~reasonable~~ best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the 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 ~~Proceeding~~ Action is instituted (or threatened to be instituted) challenging the Sale as violative of any ~~Regulatory~~ Competition Laws, Purchaser and ~~Sellers~~ Seller shall jointly (to the extent practicable) use their ~~respective reasonable~~ best efforts to initiate and/or participate in any ~~Proceedings~~proceedings, whether judicial or administrative, in order ~~to:~~ to (i) oppose or defend against any ~~action~~ Action by any Governmental Entity to prevent or enjoin the consummation of the ~~Sale;~~ Sale and/or (ii) take such action as necessary to ~~oppose~~ overturn any regulatory ~~action~~ Action by any Governmental Entity to block consummation of the Sale, including by defending any ~~Proceeding~~ 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 ~~Legal Restraint~~ Order that makes illegal or prohibits the consummation of the Sale 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 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 faithAction. (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 ~~necessary,~~ necessary to avoid or eliminate each and every impediment under any ~~Regulatory Laws,~~ 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:~~ including (i) proposing, negotiating, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of the ~~Acquired Subsidiaries~~Transferred Entities, 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 actionAffiliates, and (ivii) otherwise taking or committing to take actions that after the Closing ~~Date~~ would limit Purchaser’s ’s, the Transferred Entities or ~~its Subsidiaries~~their respective Affiliates’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the ~~Acquired Subsidiaries~~Transferred Entities, Purchaser, and their respective ~~Subsidiaries, and in~~ Affiliates. In that regard Purchaser shall ~~cause the Acquired Subsidiaries to~~ and, if requested by Purchaser, Seller shall (but, ~~without modifying~~ subject to Purchaser’s obligations under this Agreement, including ~~the obligations set forth in~~ this Section ~~5.6)~~ 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, ~~the ability of~~ or Purchaser’s, ~~the Acquired Subsidiaries~~Seller’s, or their respective ~~Subsidiaries~~ Affiliates’ ability to retain, any of the businesses, product lines or assets of the ~~Acquired Subsidiaries (after giving effect to the Restructuring Transactions)~~Transferred Entities, Purchaser, or any of their respective ~~Subsidiaries~~Affiliates. All such efforts by Purchaser shall be unconditional, and no actions taken pursuant to this Section ~~5.6(e~~5.3(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; provided, however, that the effectiveness of any such action to be taken by Purchaser~~ occurred or may ~~be conditioned upon the Closing~~occur. Notwithstanding ~~the foregoing or any other provision of this Agreement~~ anything herein to the contrary~~: (i) the obligations of~~ , neither Purchaser ~~under this Section 5.6~~ nor Seller 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 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:~~ 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; 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. (gf) Purchaser agrees to provide such ~~information reasonably available~~ security and assurances 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~~and legal, economist and other professional fees) to any third party or any Governmental Entity in order to obtain any ~~consents~~consent, ~~approvals~~ clearance, expiration or ~~waivers~~ termination of a waiting period, authorization, Order or approval pursuant to this Section ~~5.6~~5.3, other than the fees of and payments to ~~Sellers’~~ Seller’s 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: Stock Purchase Agreement (Abbott Laboratories)

Required Actions. (a) ~~Purchaser~~ Purchaser, Everest, Olympus and 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 the most expeditious manner possible the Transactions, including: (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Sale; (ii) taking all actions reasonably necessary to obtain Trango (and ~~cooperating with each other in obtaining)~~ for the ~~Required Regulatory Approvals; (iii) the execution and delivery of any additional instruments reasonably necessary to consummate the Sale and to fully carry out the purposes~~ purpose of this ~~Agreement~~Section 7.6, ~~and (iv) not acquiring~~ references to Trango, shall to the extent any ~~senior notes issued under~~ other Seller is requested, requisitioned or otherwise required by a Governmental Entity to participate in any of the ~~Embarq Indenture for purposes of asserting an Event of Default (as defined in the Embarq Indenture) thereunder. Additionally~~following, ~~each of Sellers and Purchaser (1~~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 ~~fulfill~~ consummate and make effective in the most expeditious manner possible the Sale, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Sale or otherwise required by any Party or any of its Affiliates under applicable Law in relation to this Agreement or the 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, confirmation of non-objection or approval of, or any exemption by, any Governmental Entity (which actions shall include furnishing all information required under applicable Laws, including Antitrust Laws, and in connection with the Regulatory Approvals) required or advisable to be obtained or made by Purchaser, Everest, Olympus or any Seller or any of their respective Affiliates in connection with this Agreement or the Sale, and (iii) the execution and delivery of any additional instruments necessary to consummate the Sale and to fully carry out the purposes of this Agreement. Additionally, Purchaser, Everest, Olympus and Trango shall use its reasonable 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 Law to fulfil all conditions precedent to this Agreement and (2) shall not 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 Required Regulatory Approval; provided, however, that Purchaser shall be permitted to file any additional or 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 this Agreement (such approval not to be withheld, conditioned or delayed, to the extent any such approval would not reasonably be expected to result in the Closing occurring later than the Outside Date)Agreement. (b) Prior to the Closing, ~~Purchaser~~ to the extent not prohibited by applicable Law, Purchaser, Everest, Olympus and ~~Sellers~~ Trango shall each keep the other ~~reasonably~~ apprised of the status of matters relating to the completion of the Sale and work cooperatively in connection with obtaining all required or advisable consents, clearances, expirations or terminations of waiting periods, authorizations, Orders, confirmations of non-objection or approvals of, or any ~~Required Regulatory Approval~~exemptions by, ~~including by working cooperatively in connection with~~ any ~~sales, divestitures or dispositions of assets or businesses if and to the extent required to be undertaken pursuant to the provisions of this Section 5.6~~Governmental Entity. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 7.5, to the extent not prohibited by applicable Law, each ~~party~~ of Purchaser, Everest, Olympus and Trango shall promptly consult with ~~the~~ each other ~~party to this Agreement~~ to provide any necessary or reasonably requested information with respect to (and, in the case of correspondence, provide ~~the~~ each other ~~party~~ (or ~~its~~ 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 and the Sale. ~~Each party~~ Subject to ~~this~~ the Confidentiality Agreement and Section 7.5, to the extent not prohibited by applicable Law, each 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 regarding the Sale, and 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 ~~material~~ written or oral communication or submission with or to any such Governmental Entity. If ~~either party~~ any 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, 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. ~~To the extent practicable, neither Sellers nor Purchaser~~ No Party shall participate in any meeting with any Governmental Entity in connection with this Agreement or the Sale, or with any other Person in connection with any proceeding or Action, inquiry, audit, notice of violation, summons, subpoena or investigation by a private party relating to any applicable Antitrust Laws in connection with this Agreement or the 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~~ 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. To Subject to the Confidentiality Agreement and Section 7.5, to the extent ~~permitted~~ not prohibited by applicable Law, each ~~party~~ Party shall furnish ~~the other party~~ Purchaser, Everest and Olympus with copies of all ~~material~~ correspondence, ~~filings~~ filings, submissions and ~~material~~ communications between it and any such Governmental Entity or other such Person with respect to this Agreement and the Sale, and furnish ~~the other party~~ Purchaser, Everest and Olympus with such ~~reasonably~~ necessary information and reasonable assistance as ~~the other party~~ 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~~Entity or other such Person. Notwithstanding anything ~~in this Section 5.6~~ to the ~~contrary~~contrary herein, ~~neither~~ Purchaser ~~nor Sellers~~ shall, following good faith consultation with Everest and 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 ~~take~~ make or ~~agree~~ refrain from making any notification or filing to ~~commit to take~~ any ~~action that~~ Governmental Entity in circumstances where they believe (acting reasonably) it would ~~violate~~ be a breach of their obligations under applicable Law to make or ~~their respective covenants~~ 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 advisable and necessary, reasonably designate any competitively sensitive material provided to the other 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, Everest or Olympus pursuant to this Section 7.6, and the ~~Confidentiality~~ information contained therein, shall be given only to the designated legal counsel of the recipient and shall not be disclosed to any other Person unless express permission is obtained in advance from the source of the materials (Purchaser, Everest or Olympus, as the case may be) or its legal counsel; it being understood that materials provided pursuant to this Agreement ~~or Section 5.5~~may be redacted (i) to remove references concerning the valuation of Everest and/or Olympus, (ii) as necessary to comply with contractual arrangements and (iii) as necessary to address reasonable privilege concerns. (c) ~~Purchaser~~ Purchaser, Everest and ~~Sellers~~ Olympus shall ~~file~~file or cause to be 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 ~~sixty-five (65) calendar days~~ the earlier of the applicable statutory deadline and 20 Business Days after the date of this Agreement (unless ~~mutually extended by Purchaser and Sellers), notifications under~~ the ~~HSR Act, and Purchaser and Sellers shall file and provide, as promptly as practicable, any other filings and/or notifications~~ applicable notification or ~~information~~ filing is not required to ~~obtain~~ be made until after the Required Regulatory Approvals, including to the extent applicable, 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 RegulatorsClosing). In the event that ~~the parties receive~~ Purchaser, Everest or Olympus receives a request for ~~any~~ additional information or documentary materials after an initial notification pursuant to any ~~such notification~~ applicable Antitrust Law or ~~filing~~in connection with any of the Regulatory Approvals, the ~~parties~~ applicable Party shall ~~respond~~ use its respective reasonable endeavors to certify compliance with such requests, as applicable, as promptly as ~~possible~~practicable and advisable, and counsel for ~~both parties will~~ the Parties shall closely cooperate during the entirety of any such investigatory or review process. (d) ~~Purchaser~~ Each of Purchaser, Everest and ~~Sellers~~ Olympus shall use ~~their respective~~ its reasonable ~~best efforts~~ 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 ~~the HSR Act, the ▇▇▇▇▇▇▇ Act, as amended, the ▇▇▇▇▇▇▇ Act, as amended, the Federal Trade Commission Act, as amended, the Communications Laws,~~ any applicable Antitrust Laws or in connection with 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”)~~Approvals. In connection therewith, if any ~~Proceeding~~ Action, inquiry, audit, notice of violation, summons, subpoena or investigation is instituted (or threatened to be instituted) challenging the Sale as violative of any ~~Regulatory~~ applicable Laws, ~~Purchaser~~ Purchaser, Everest and ~~Sellers~~ Olympus shall jointly (to the extent practicable) use their respective reasonable ~~best efforts~~ endeavors to initiate and/or participate in any ~~Proceedings~~proceedings, whether judicial or administrative, in order ~~to:~~ 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;~~ Sale and/or (ii) take such action as necessary to ~~oppose~~ overturn any regulatory ~~action~~ Action, inquiry, audit, notice of violation, summons, subpoena or investigation by any Governmental Entity to block consummation of the Sale, including by defending any ~~Proceeding~~ such 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 ~~Legal Restraint~~ Order that makes illegal or prohibits the consummation of the Sale resulting from any ~~Proceeding. Notwithstanding the foregoing~~ such Action, inquiry, audit, notice of violation, summons, subpoena 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 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 faithinvestigation. (e) ~~Notwithstanding any other provision~~ In furtherance of ~~this Agreement, but subject in all respects to~~ the ~~last sentence in this Section 5.6(e)~~foregoing, Purchaser shall take all ~~reasonable~~ actions ~~necessary,~~ necessary to avoid or eliminate each and every impediment under any Antitrust Laws and in connection with any of the Regulatory ~~Laws,~~ Approvals 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) 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 Acquired Subsidiaries~~Everest, ~~Purchaser,~~ Olympus and their respective ~~Subsidiaries;~~ Affiliates and (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 (iv) otherwise taking or committing to take actions that after the Closing ~~Date~~ would limit ~~Purchaser~~Everest’s, Olympus’s or ~~its Subsidiaries~~any of their respective Affiliates’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of ~~the Acquired Subsidiaries~~Everest, ~~Purchaser, and~~ Olympus or their respective ~~Subsidiaries, and in~~ Affiliates. In that regard Purchaser shall ~~cause the Acquired Subsidiaries to~~ and, if requested by Purchaser, Everest or Olympus shall (but, ~~without modifying Purchaser~~subject to each Party’s obligations under this Agreement, including ~~the obligations set forth in~~ this Section ~~5.6)~~ 7.6, and 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~~ 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, ~~the ability of Purchaser~~that Purchaser shall not be obligated to take or agree or commit to take, ~~the Acquired Subsidiaries~~and neither Everest nor Olympus shall discuss, propose, agree or ~~their respective Subsidiaries~~ commit to ~~retain~~take, any of such action that is not conditioned on the ~~businesses, product lines or assets of the Acquired Subsidiaries (after giving effect to the Restructuring Transactions), Purchaser, or any of their respective Subsidiaries~~Closing. ~~All such efforts by Purchaser shall be unconditional, and no~~ No actions taken pursuant to this Section ~~5.6(e~~7.6(e) ~~in connection with obtaining consents or approvals under applicable Competition Laws~~ shall be considered for purposes of determining whether a Material Adverse Effect has ~~occurred; provided, however, that the effectiveness of any such action to be taken by Purchaser~~ occurred or may ~~be conditioned upon the Closing~~occur. Notwithstanding the foregoing or any other provision of this Agreement to the contrary~~: (i) the obligations of~~ , in no event shall Purchaser ~~under this Section 5.6~~ be obligated to, and Everest and Olympus shall not ~~include Purchaser committing to (whether or not conditioned upon~~ agree with a Governmental Entity without 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 prior written consent of Purchaser, ~~the Acquired Subsidiaries or the Business~~to (A) divest, ~~taken as a whole (after giving effect to the Closing~~hold separate, 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”)license, or ~~(y) with respect to obtaining any approval~~ otherwise encumber the assets or businesses of ~~the FCC~~ Everest, Olympus 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 their respective Affiliates if such ~~conditions, requirements, actions or other remedies being hereinafter referred to as “Conditions”) to the extent such Conditions~~actions, individually or in the aggregate, would be material to the financial condition, business 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~~Everest and its Subsidiaries, ~~the Acquired Subsidiaries (~~taken as a whole) , or ~~the Business (after giving effect~~ material to the ~~Closing~~financial condition, ~~to the transactions contemplated hereby to occur on~~ business or ~~prior to the Closing~~results of operations of Olympus and its Subsidiaries, ~~and to Purchaser’s Operational Plan) (any such Condition being hereinafter referred to~~ taken as a ~~“Burdensome Condition”); provided that~~whole, without limiting the foregoing in clauses (x) and (y), the parties hereto acknowledge that the type of such actions or Conditions that may 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) divest, hold separate, license, accept any operational modification or restriction with respect to or otherwise encumber 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 assets or businesses of ~~their Affiliates (other than~~ Purchaser ~~and~~ or 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~~ 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 ~~contrary~~ 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 ~~this Agreement~~any business combination transaction or sale, ~~Sellers shall not be obligated to take~~ whether by merging with or ~~agree~~ into, consolidating with, or ~~commit to~~ 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) ~~that relates to~~ impose any ~~business~~material delay in the obtaining of, ~~operations~~or materially increase the risk of not obtaining, ~~assets~~(A) the expiration, ~~liabilities~~termination or waiver of any applicable waiting period or any consent, ~~product lines~~ approval, permit, ruling, authorization, clearance or ~~Subsidiary not to be transferred~~ other approval pursuant to ~~and in accordance with~~ the ~~terms and conditions~~ Antitrust Laws necessary to consummate the transactions contemplated hereby or (B) any of ~~this Agreement; or~~ the Regulatory Approvals, (ii) ~~that would amend in any material respect~~ materially increase the ~~terms~~ risk 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~~ entering an Order prohibiting the ~~transactions contemplated by this Agreement, and (ii) any Governmental Entity or other third party whose consent or approval is sought in connection with~~ consummation of the transactions contemplated hereby~~. Whether~~ , including the Sale, (iii) materially increase the risk of not being able to remove any such Order on appeal or ~~not~~ otherwise, (iv) materially delay, impair, impede, hinder, adversely affect or prevent 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 consents, approvals or waivers pursuant to this Section 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 consummation of the ~~FCC~~transactions contemplated hereby, including ~~those prohibiting “slamming” as~~ the Sale, or (v) cause any of the conditions set forth in ~~47 C.F.R. Section 64.1120~~Article VIII to fail to be satisfied or materially delay, ~~at least 60 calendar days~~ impair, impede, hinder, adversely affect or prevent the ability of Purchaser and its Affiliates to perform their obligations under this 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 ~~the estimated Closing Date (as reasonably estimated by the parties), (i) Purchaser shall, at its own expense, prepare and delive~~such extension o

Appears in 1 contract

Sources: Share Purchase Agreement (WEX Inc.)

Required Actions. (a) Seller and Purchaser will, and ~~Sellers shall use~~ will cause their respective Affiliates to, cooperate with each other and 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 the most expeditious manner possible the Transactions, including: (i) negotiate, prepare and file as promptly as practicable all necessary applications, notices, petitions, and filings, and execute all agreements and documents, to the extent required by Law or Order in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby (including the Required Regulatory Approvals) and (ii) obtain the consents, approvals, and authorizations of all Governmental Entities to the extent required by Law or Order in connection with the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement (including the Required Regulatory Approvals). Each Party will, and will cause its Affiliates to, consult and cooperate with the other Party as to the appropriate time of all such filings and notifications, furnish to the other Party such necessary information and reasonable assistance in connection with the preparation of such filings, and respond promptly to any requests for additional information made in connection therewith by any Governmental Entity. To the extent permitted under applicable Law, each of Seller and Purchaser will have the right to review in advance all characterizations of the information relating to it or to the transactions contemplated by this Agreement which appear in any filing made by the other Party or any of its Affiliates in connection with the transactions contemplated hereby. In furtherance and not in limitation of the foregoing, each of Seller and Purchaser will make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby with the United States Federal Trade Commission and the Antitrust Division of the United States Department of Justice as promptly as practicable and in any event by June 4, 2018. (b) Purchaser and Seller, acting reasonably and in good faith, will coordinate, and Seller shall cause the Company to coordinate, the preparation and ~~filing~~ 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 ~~forms~~meetings with Governmental Entities in connection with the transactions contemplated by this Agreement (including the Required Regulatory Approvals); provided, ~~registrations~~ however, to the fullest extent practicable and ~~notices required~~ 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 ~~be filed to consummate~~ make, including the ~~Sale~~subject matter, contents, intended agenda and other aspects of any of the foregoing; (ii) ~~taking all actions reasonably necessary~~ consult and cooperate with the other Party, and to ~~obtain (and cooperating~~ take into account the comments of the other Party in connection with ~~each other in obtaining)~~ any of the ~~Required Regulatory Approvals~~matters covered by Section ‎5.5(a); (iii) permit representatives of the ~~execution and delivery of~~ other Party to participate to the maximum extent possible in any ~~additional instruments reasonably necessary to consummate the Sale and to fully carry out the purposes of this Agreement~~such communications, ~~and~~ 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 ~~senior notes issued under the Embarq Indenture for purposes~~ asset, property, business or Person (by way of ~~asserting an Event of Default~~ merger, consolidation, share exchange, investment or other business combination, asset, stock or equity purchase, or otherwise) from any Person (~~as defined~~ other than, in the ~~Embarq Indenture~~case of Purchaser, from Seller or its Affiliates), (ii) ~~thereunder~~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. ~~Additionally~~In furtherance of and without limiting any of Purchaser’s or Seller’s covenants and agreements under this Section ‎5.5, each of ~~Sellers~~ Purchaser and ~~Purchaser (1)~~ 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 fulfill all conditions precedent to this Agreement and (2) shall not 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 Required Regulatory Approval; provided, however, that Purchaser shall be permitted to file any additional or 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 this Agreement (such approval not to be withheld, conditioned or delayed, to the 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, Purchaser and Sellers shall each keep the other reasonably apprised of the status of matters relating to the completion of the Sale and work cooperatively in connection with obtaining any Required Regulatory Approval, including by working cooperatively in connection with any sales, divestitures or dispositions of assets or businesses if steps and to the extent required to be undertaken pursuant to the provisions of this Section 5.6. In that regard, prior to the Closing, each party shall promptly consult with the other party to this Agreement to provide any necessary information with respect to (and, in the case of correspondence, provide the other party (or 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 and the Sale. 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 regarding the Sale, and permit the other party to review and discuss in advance, and consider in good faith the views of the other party in connection with, any proposed material written or oral communication with any such Governmental Entity. If 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, 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. To the extent practicable, neither Sellers nor Purchaser shall participate in any meeting with any Governmental Entity 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 gives the other party the opportunity to attend and participate thereat. To the extent permitted by Law, each party shall furnish the other party with copies of all ~~material correspondence, filings and material communications between it and any such Governmental Entity with respect to this Agreement and the Sale, and furnish the other party with such reasonably~~ undertakings 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 obligated to take or agree to commit to take any action that would violate applicable Law or their respective covenants under the Confidentiality Agreement or Section 5.5. (c) Purchaser and Sellers shall file, as promptly as practicable, but in any event no later than sixty-five (65) calendar days after the date of this Agreement (unless mutually extended by Purchaser and Sellers), notifications under the HSR Act, and Purchaser and Sellers shall file and provide, as promptly as practicable, any other filings and/or notifications or information required to obtain the Required Regulatory Approvals, including to the extent applicable, 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 event that the parties receive a request for any additional information after any such notification or filing, the parties shall respond to such requests, as applicable, as promptly as possible, and counsel for both parties will closely cooperate during the entirety of any such investigatory or review process. (d) Purchaser and Sellers shall use their respective reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the 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 Proceeding is instituted (or threatened to be instituted) challenging the Sale as violative of any Regulatory Laws, Purchaser and Sellers shall jointly (to the extent practicable) use their respective reasonable best efforts to participate in any Proceedings, whether judicial or administrative, in order to: (i) oppose or defend against any action by any Governmental Entity to prevent or enjoin the consummation of the Sale; and/or (ii) take such action as necessary to oppose any regulatory action by any Governmental Entity to block consummation of the Sale, including by defending any Proceeding brought by any Governmental Entity in order to avoid the entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any Legal Restraint resulting from any 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 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 necessary, to avoid or eliminate each and every impediment ~~under~~ asserted by any Governmental Entity in connection with obtaining the Required Regulatory ~~Laws~~Approvals, including avoiding or eliminating any Purchaser Burdensome Condition, 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 to conditions imposed by, or taking any action required by, any Governmental Entity, (B) defending through litigation on the merits, including appeals, any Action asserted by any court or other proceeding by any Person, including any Governmental Entity, that seeks to or could prevent or prohibit or impede, interfere with or delay the consummation of the Closing, (C) avoiding or eliminating any Purchaser Burdensome Condition, and proposing alternative conditions upon which the Required Regulatory Approvals would be provided, (D) in the case of Purchaser, proposing, negotiating, committing to and effecting, by consent decree, hold separate ~~Order,~~ order or otherwise, the sale, ~~divestiture~~ divestiture, licensing or disposition of any ~~businesses, product lines~~ assets or ~~assets~~ business of Purchaser or its Affiliates or of the ~~Acquired Subsidiaries~~Company, ~~Purchaser~~including entering into customary ancillary agreements relating to any such sale, divestiture, licensing or disposition, and ~~their respective Subsidiaries;~~ (iiE) ~~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~~ take any other action as may be required by a Governmental Entity ~~that it or~~ in order to effect each of the following: (1) obtaining all Required Regulatory Approvals as soon as reasonably practicable and in any ~~of its Subsidiaries will take~~event before the Outside Date, (2) avoiding the entry of, or ~~refrain from taking~~having vacated, lifted, dissolved, reversed or overturned any ~~action~~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 (iv3) effecting the expiration or termination of any waiting period, which would otherwise ~~taking~~ have the effect of preventing, prohibiting or ~~committing to take actions that after~~ restricting consummation of the Closing ~~Date would limit Purchaser’s~~ or ~~its Subsidiaries’ freedom of action~~ impeding, interfering with ~~respect to,~~ or its or their ability to retain, any businesses, product lines or assets of the Acquired Subsidiaries, Purchaser, and their respective Subsidiaries, 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 their respective Subsidiaries to retain, any of the businesses, product lines or assets of the Acquired Subsidiaries (after giving effect to the Restructuring Transactions), Purchaser, or any of their respective Subsidiaries. All such efforts by Purchaser shall be unconditional, and no actions taken pursuant to this Section 5.6(e) in connection with obtaining consents or approvals under applicable Competition Laws shall be considered for purposes of determining whether a Material Adverse Effect has occurred; provided, however, that the effectiveness of any such action to be taken by Purchaser may be conditioned upon delaying the Closing. Notwithstanding ~~the foregoing or any other provision of~~ anything in this Agreement to the contrary~~: (i)~~ , the ~~obligations~~ entry into any settlement with any 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 approved by Purchaser ~~under this Section 5.6 shall not include Purchaser committing~~ and, to ~~(whether~~ the extent involving a concession or ~~not conditioned upon the consummation of the Closing) (x) with respect to obtaining~~ commitment made by Seller or any of its Affiliates (excluding the Company), Seller. (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 ~~than those governed by clause (y) below~~investigation, ~~taking~~ consent to or take any action ~~if such action~~in each case, ~~individually or together with any other proposed action(s) relating to the approvals governed by this clause (x),~~ that 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~~ assets, results of operations or financial condition of ~~Purchaser,~~ Purchaser and its Affiliates (including the ~~Acquired Subsidiaries or the Business,~~ Company) taken as a ~~whole (~~whole, after giving effect to the ~~Closing~~Sale; provided, that Purchaser and its Affiliates (including the Company) shall be deemed to be the ~~transactions contemplated hereby to occur on or prior to the Closing, and to the manner in which the Purchaser intends to operate~~ same size as the Business ~~following the Closing as disclosed by Purchaser to Sellers prior to the Execution Date (“Purchaser’s Operational Plan”)~~for purposes of this Section ‎5.5(d) (any such action ~~being hereinafter referred to as~~ or requirement, 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 “Purchaser Burdensome Condition”)~~; provided that~~. For the avoidance of doubt, ~~without limiting~~ none of the exclusions set forth in the definition of “Business 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 ~~clauses~~ this Agreement to the contrary, (xi) neither Seller nor Purchaser shall be required to, and neither Seller nor Purchaser shall, in connection with obtaining the Required Regulatory Approvals, consent to the taking of any action or the imposition of any terms, conditions, limitations or standards of service the effectiveness or consummation of which is not conditional upon the occurrence of the Closing and (y)ii) Seller shall not be required to, and Purchaser shall not, in connection with obtaining the ~~parties hereto acknowledge that~~ Required Regulatory Approvals, consent to the ~~type~~ imposition of ~~such actions~~ any terms, conditions or ~~Conditions that may be proposed,~~ limitations on 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)~~Seller, ~~by the State Regulators (with respect to approvals required from the State Regulators)~~ any of its Affiliates or by any of their respective businesses, other ~~regulatory body (~~than terms, conditions or limitations on or with respect to the ~~Required Regulatory Approvals specified in clause~~ Company (~~x)) in comparable transactions in~~ excluding 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); Elizabethtown Gas 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 Elkton Gas operating divisions of the ~~Transactions, other than responding to any reasonable requests for information from Purchaser~~ Company) or ~~Sellers that may be required in connection with any filings with any Governmental Entity pursuant to this Section 5.6~~the Business. (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 consents, approvals or waivers pursuant to this Section 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: Stock Purchase Agreement (Nextera Energy Inc)

Required Actions. (a) Subject to the terms and conditions of this Agreement, Purchaser and ~~Sellers~~ Parent 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 ~~the most~~ an expeditious manner ~~possible~~ the ~~Transactions~~Sale and the other transactions contemplated by this Agreement, ~~including:~~ including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the ~~Sale;~~ 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 applicable Laws 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 ~~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, subject to the terms and conditions of this Agreement, each of ~~Sellers~~ Parent 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 to not 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 ~~Required Regulatory Approval; provided~~consent, ~~however~~clearance, ~~that Purchaser shall be permitted to file~~ expiration or termination of a waiting period, authorization, Order or approval of, or any ~~additional or updated applications for~~ exemption by, 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 this Agreement (such approval not Governmental Entity necessary to be ~~withheld, conditioned~~ obtained at or ~~delayed,~~ prior to the ~~extent any such approval would not reasonably be expected to result in the Closing occurring later than the Outside Date)~~Closing. (b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and ~~Sellers~~ 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 ~~Required Regulatory Approval~~exemptions by, ~~including by working cooperatively in connection with~~ any ~~sales, divestitures or dispositions of assets or businesses if and to the extent required to be undertaken pursuant to the provisions of this Section 5.6~~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 ~~party~~ of Parent and Purchaser 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 ~~its~~ 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, the Sale and the ~~Sale. 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 regarding the Sale, and permit the other party to review and discuss in advance, and consider in good faith the views of the other party in connection with, any proposed material written or oral communication with any such Governmental Entity. If 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, 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. To the extent practicable, neither Sellers nor Purchaser shall participate in any meeting with any Governmental Entity 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 gives the other party the opportunity to attend and participate thereat. To the extent permitted by Law, each party shall furnish the other party with copies of all material correspondence, filings and material communications between it and any such 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 obligated to take or agree to commit to take any action that would violate applicable Law or their respective covenants under the Confidentiality Agreement or Section 5.5. (c) Purchaser and Sellers shall file, as promptly as practicable, but in any event no later than sixty-five (65) calendar days after the date of this Agreement (unless mutually extended by Purchaser and Sellers), notifications under the HSR Act, and Purchaser and Sellers shall file and provide, as promptly as practicable, any other filings and/or notifications or information required to obtain the Required Regulatory Approvals, including to the extent applicable, 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 event that the parties receive a request for any additional information after any such notification or filing, the parties shall respond to such requests, as applicable, as promptly as possible, and counsel for both parties will closely cooperate during the entirety of any such investigatory or review process. (d) Purchaser and Sellers shall use their respective reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the 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 Proceeding is instituted (or threatened to be instituted) challenging the Sale as violative of any Regulatory Laws, Purchaser and Sellers shall jointly (to the extent practicable) use their respective reasonable best efforts to participate in any Proceedings, whether judicial or administrative, in order to: (i) oppose or defend against any action by any Governmental Entity to prevent or enjoin the consummation of the Sale; and/or (ii) take such action as necessary to oppose any regulatory action by any Governmental Entity to block consummation of the Sale, including by defending any Proceeding brought by any Governmental Entity in order to avoid the entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any Legal Restraint resulting from any 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 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 necessary, to avoid or eliminate each and every impediment under any 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, 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 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 (iv) otherwise taking or committing to take actions that after the Closing Date would limit Purchaser’s or its Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Acquired Subsidiaries, Purchaser, and their respective Subsidiaries, 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 their respective Subsidiaries to retain, any of the businesses, product lines or assets of the Acquired Subsidiaries (after giving effect to the Restructuring Transactions), Purchaser, or any of their respective Subsidiaries. All such efforts by Purchaser shall be unconditional, and no actions taken pursuant to this Section 5.6(e) in connection with obtaining consents or approvals under applicable Competition Laws shall be considered for purposes of determining whether a Material Adverse Effect has 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 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 consents, approvals or waivers pursuant to this Section 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 Subject to the ~~estimated Closing Date (as reasonably estimated by the parties), (i) Purchaser shall, at its own expense, prepare and delive~~Confidentiality Agreement and

Appears in 1 contract

Sources: Stock Purchase Agreement (Ecovyst Inc.)

Required Actions. (a) Seller and Purchaser will, and ~~Sellers shall use~~ will cause their respective ~~reasonable~~ Affiliates to, cooperate with each other and use 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 the most expeditious manner possible the Transactions, including: (i) negotiate, prepare and file as promptly as practicable all necessary applications, notices, petitions, and filings, and execute all agreements and documents, to the ~~preparation~~ extent required by Law or Order in connection with the execution, delivery and ~~filing~~ performance of ~~all forms, registrations~~ this Agreement and ~~notices required to be filed to consummate~~ the ~~Sale;~~ consummation of the transactions contemplated hereby (~~ii) taking all actions reasonably necessary to obtain (and cooperating with each other in obtaining)~~ including the Required Regulatory Approvals; ) and (~~iii~~ii) obtain the ~~execution and delivery of any additional instruments reasonably necessary to consummate the Sale and to fully carry out the purposes of this Agreement~~consents, approvals, and ~~(iv) not acquiring any senior notes issued under the Embarq Indenture for purposes~~ authorizations of ~~asserting an Event of Default (as defined in the Embarq Indenture) thereunder. Additionally, each of 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 not 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 Required Regulatory Approval; provided, however, that Purchaser shall be permitted to file any additional or 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 this Agreement (such approval not to be withheld, conditioned or delayed, to the 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, Purchaser and Sellers shall each keep the other reasonably apprised of the status of matters relating to the completion of the Sale and work cooperatively in connection with obtaining any Required Regulatory Approval, including by working cooperatively in connection with any sales, divestitures or dispositions of assets or businesses if and Governmental Entities to the extent required to be undertaken pursuant to the provisions of this Section 5.6. In that regard, prior to the Closing, each party shall promptly consult with the other party to this Agreement to provide any necessary information with respect to (and, in the case of correspondence, provide the other party (by Law or ~~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~~ Order in connection with the execution, delivery and performance of this Agreement and the ~~Sale~~consummation of the transactions contemplated by this Agreement (including the Required Regulatory Approvals). Each ~~party to this Agreement shall promptly inform~~ Party will, and will cause its Affiliates to, consult and cooperate with the other ~~party~~ Party as to ~~this Agreement~~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 ~~if in writing, furnish the other party with copies of (or, in the case of oral communications, advise the other party orally of)~~ respond as promptly as practicable to any ~~material communication from any Governmental Entity regarding the Sale, and permit the other party to review and discuss in advance, and consider in good faith the views of the other party~~ requests for additional information made in connection ~~with,~~ therewith by any ~~proposed material written or oral communication with any such~~ Governmental Entity. ~~If either party~~ 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 ~~representative~~ of ~~such party receives a request for additional information or documentary material from any Governmental Entity~~ its Affiliates in connection with ~~respect to~~ the ~~Sale~~transactions contemplated hereby. In furtherance and not in limitation of the foregoing, ~~then such party~~ each of Seller and Purchaser will make, or cause to be made, ~~promptly~~ an appropriate filing of a Notification and ~~after consultation~~ Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby with the ~~other party to~~ United States Federal Trade Commission and the Antitrust Division of the United States Department of Justice as promptly as practicable and in any event within ten (10) Business Days of executing this Agreement~~, an appropriate response in compliance with such request~~. ~~To the extent practicable, neither Sellers nor~~ Purchaser shall ~~participate~~ be responsible for any filing fees required under the HSR Act. (b) Purchaser and Seller, acting reasonably and in good faith, will coordinate, and Seller shall cause the Company to coordinate, the preparation and making of any ~~meeting~~ 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 ~~this Agreement or~~ the ~~Sale~~ transactions contemplated hereby, each of Seller and Purchaser shall (~~or make oral submissions at meetings or~~ and will cause its Affiliates to): (i) inform the other Party in ~~telephone~~ advance of any such communication, meeting, or other ~~conversations~~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) ~~unless it consults~~ consult and cooperate with the other ~~party in advance~~ Party, and ~~gives~~ to take into account the comments of the other ~~party~~ Party in connection with any of the ~~opportunity to attend and participate thereat. To the extent permitted~~ matters covered by ~~Law, each party shall furnish~~ Section 5.5(a); (iii) permit Representatives of the other ~~party~~ Party to participate 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 ~~material correspondence, filings and material~~ written communications ~~between it and~~ with any ~~such~~ 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 relating to any ~~such Governmental Entity. Notwithstanding anything~~ of the foregoing; provided further, however, Purchaser shall have the principal responsibility, in this Section 5.6 to the contrary, neither Purchaser nor Sellers shall be obligated to take or agree to commit to take any action that would violate applicable Law or their respective covenants under the Confidentiality Agreement or Section 5.5. (c) Purchaser and Sellers shall file, as promptly as practicable, but in any event no later than sixty-five (65) calendar days after the date of this Agreement (unless mutually extended by Purchaser and Sellers), notifications under the HSR Act, and Purchaser and Sellers shall file and provide, as promptly as practicable, any other filings and/or notifications or information required to obtain the Required Regulatory Approvals, including to the extent applicable, filing all applications consultation with the ~~FCC~~ Company, for determining and implementing the strategy for obtaining any ~~applicable State Regulators~~ necessary clearance, consents, approvals, or waiting period expirations or terminations pursuant to any antitrust, competition or trade regulation Law that may be required by the Communications Act or similar rules, regulations, policies, instructions and orders of State Regulators. In the event that the parties receive a request for any additional information after any such notification or filing, the parties shall respond to such requests, as applicable, as promptly as possible, and counsel for both parties will closely cooperate during the entirety of any such investigatory or review process. (d) Purchaser and Sellers shall use their respective reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the ~~Sale~~ transactions contemplated under this Agreement and shall do so in a manner reasonably designed to obtain any such antitrust-related Required Regulatory Approvals as promptly as reasonably practicable and, in any event prior to the ~~HSR Act~~Outside Date. Materials shared by and among the Purchaser, Seller and Company pursuant to this Section 5.5(b) may be redacted (A) to remove references concerning 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 valuation of the ~~Business~~ Business, (~~together~~ B) as necessary to comply with contractual arrangements, (C) as necessary to comply with legal requirements and (D) as necessary to address reasonable attorney-client or other privilege or confidentiality concerns. Nothing in this Section 5.5(b) will apply to or restrict communications or other actions by a Party with or with respect to any Governmental Entity in connection with its business in the ~~Competition Laws,~~ ordinary course of business. (c) Without limiting the ~~“Regulatory Laws”). In connection therewith, if any Proceeding is instituted (or threatened to be instituted) challenging the Sale as violative of any Regulatory Laws~~foregoing, Purchaser and ~~Sellers~~ Seller shall ~~jointly (to the extent practicable) use~~ not, and shall cause their respective ~~reasonable best efforts to participate in~~ Affiliates not to, take any ~~Proceedings~~action, ~~whether judicial or administrative, in order to:~~ including (i) ~~oppose~~ acquiring any asset, property, business or ~~defend against~~ Person (by way of merger, consolidation, share exchange, investment or other business combination, asset, stock or equity purchase, or otherwise) from any ~~action~~ Person (other than, in the case of Purchaser, from Seller or its Affiliates), (ii) making any filing or (iii) any other action, that, in each case, could reasonably be expected to adversely affect obtaining or making, or the timing of obtaining or making, any consent or approval contemplated by this Section 5.5. In furtherance of and without limiting any of Purchaser’s covenants and agreements under this Section 5.5, Purchaser shall, and shall cause its Affiliates to be taken, any and all steps and to make, or cause to be made, any and all undertakings necessary to avoid or eliminate each and every impediment asserted by any Governmental Entity to prevent or enjoin the consummation of the Sale; and/or (ii) take such action as necessary to oppose any regulatory action by any Governmental Entity to block consummation of the Sale, including by defending any Proceeding brought by any Governmental Entity in order to avoid the entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any Legal Restraint resulting from any 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 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 necessary, to avoid or eliminate each and every impediment under any Regulatory Laws, so as to enable the Closing to occur as promptly as ~~practicable~~ practicable, including (~~and~~ A) agreeing to conditions imposed by, or taking any action required by, any Governmental Entity (B) defending through litigation on the merits, including appeals, any Action asserted by any court or other proceeding by any Person, including any Governmental Entity, that seeks to or could prevent or prohibit or impede, interfere with or delay the consummation of the Closing, (C) in ~~any event no later than~~ the ~~Outside Date)~~case of Purchaser, ~~including: (i)~~ 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~~ assets or ~~assets~~ business of ~~the Acquired Subsidiaries,~~ Purchaser, ~~and their respective Subsidiaries; (ii) conducting~~ its Affiliates or the ~~Business after the Closing Date in a specified manner; (iii) committing~~ Company, including entering into customary ancillary agreements relating to ~~make capital expenditures~~ any such sale, divestiture, licensing 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 actiondisposition, and (ivD) otherwise taking or committing to take actions ~~that~~ that, after the Closing ~~Date~~ Date, would limit Purchaser’s ~~or its Subsidiaries’~~ freedom of action with respect to, or its ~~or their~~ ability to ~~retain~~retain or hold, ~~any businesses~~directly or indirectly, ~~product lines~~ one or assets of the Acquired Subsidiaries, Purchaser, and their respective Subsidiaries, 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 their respective Subsidiaries to retain, any more of the businesses, product lines or assets of the ~~Acquired Subsidiaries~~ Company as may be required by a Governmental Entity or agreeing to any other action in order to effect each of the following: (~~after giving~~ 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 ~~Restructuring Transactions~~contrary, the entry into any settlement with any Governmental Entity or intervenor, or the filing with any Governmental Entity or the publication of any document containing any commitments (including any preliminary offer relating to such settlement, filing or publication) regarding a Required Regulatory Approval of any Party or their Affiliates must be approved by Purchaser and, to the extent involving a concession or commitment made by any member of the Seller Group, (excluding the Company), ~~Purchaser~~Seller. (d) Notwithstanding the foregoing or anything else in this Agreement to 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, consent to the taking of any action or the imposition of any terms, conditions, limitations or standards of service the effectiveness or consummation of which is not conditional upon the occurrence of the Closing and (ii) Seller shall not be required to, and Purchaser shall not, in connection with obtaining the Required Regulatory Approvals, consent to the imposition of any terms, conditions or limitations on or with respect to Seller, any of its Affiliates or any of their respective ~~Subsidiaries. All such efforts by Purchaser shall be unconditional~~businesses, and no actions taken pursuant to this Section 5.6(e) in connection with obtaining consents or approvals under applicable Competition Laws shall be considered for purposes of determining whether a Material Adverse Effect has 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~~terms, ~~taking any action if such action, individually~~ conditions 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 limitations 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 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~~ Company or the ~~telecommunications industry~~ Business that ~~have been consummated since July 1, 2008; or (B)~~ are conditional upon 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 occurrence 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 5.6Closing. (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 consents, approvals or waivers pursuant to this Section 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: Stock Purchase Agreement (Chesapeake Utilities Corp)

Required Actions. (a) Purchaser and ~~Sellers~~ its Affiliates, including, if applicable, its UPE, and Parent 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~~ actions necessary, proper or advisable under any applicable Laws to consummate and make effective in the most expeditious manner possible the ~~Transactions~~Pre-Closing Restructuring, ~~including: (i)~~ the ~~preparation~~ Sale and ~~filing~~ the other transactions contemplated by this Agreement, including taking all actions necessary to obtain any consent, clearance, expiration or termination of ~~all forms~~a waiting period, ~~registrations and notices~~ authorization, Order or approval of, or any exemption by, any Governmental Entity required to be ~~filed to consummate~~ obtained or made by Purchaser (and, if applicable, its UPE) or Parent or any of their respective Subsidiaries in connection with the Sale; (ii) taking all actions reasonably necessary to obtain (and cooperating with each other in obtaining) the Required Regulatory Approvals; (iii) the execution and delivery of any additional instruments reasonably necessary to consummate Pre-Closing Restructuring, the Sale and ~~to fully carry out~~ the ~~purposes of~~ other transactions contemplated by 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 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 not 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 Required Regulatory Approval; provided, however, that Purchaser shall be permitted to file any additional or 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 this Agreement (such approval not to be withheld, conditioned or delayed, to the extent any such approval would not reasonably be expected to result in the Closing occurring later than the Outside Date). (b) ~~Prior~~ Purchaser (and, if applicable, its UPE) and Parent shall file or cause to be filed, any filings (including draft filings) or notifications under applicable Competition and Foreign Investment Laws within the 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 communications with any Governmental Entity relating to Competition and Foreign Investment Laws, and determine and direct the strategy and process by which the parties will obtain all required consents, clearances, expirations or terminations of waiting periods, authorizations, Orders or approvals of, or any exemptions by, any Governmental Entity relating to Competition 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 same to any Governmental Entity. Without limiting the foregoing, the parties agree to the ~~Closing, Purchaser and Sellers shall each keep the other reasonably apprised~~ matters set forth on Section 5.3(c)(i) of the ~~status~~ Purchaser Disclosure Schedule. (ii) Without limiting the generality of matters relating to the completion of the Sale and work cooperatively in connection with obtaining 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 to be undertaken pursuant to the provisions of this Section ~~5.6. In that regard~~5.3(c)(i), prior to the Closing, ~~each party~~ to the extent not prohibited by applicable Law, Parent and Purchaser shall ~~promptly consult~~ (A) work cooperatively with the other party to this Agreement to provide any necessary information with respect to (and, in the case of correspondence, provide the other party (or 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 and the Sale. Each party to this Agreement shall~~ obtaining all required consents, clearances, expirations or terminations of waiting periods, authorizations, Orders or approvals of, or any exemptions by, any Governmental Entity, (B) promptly inform the other ~~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 ~~orally~~ of) any ~~material~~ communication from any Governmental Entity regarding the ~~Sale~~Sale or the other transactions contemplated by this Agreement, ~~and~~ (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 ~~material~~ written or oral communication or submission with or to any such Governmental Entity~~. If 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~~, ~~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. To the extent practicable, neither Sellers nor Purchaser shall~~ (D) not participate in any meeting with any Governmental Entity in connection with this ~~Agreement~~ Agreement, the Sale or the other transactions contemplated by this Agreement, or with any other Person in connection with any proceeding or Action by a private party relating to any Competition and Foreign Investment Laws in connection with this Agreement, the Sale (or the other transactions contemplated by this Agreement or make oral submissions at meetings or in telephone or other conversations) , unless it consults with the other party in advance and gives the other party the opportunity to attend and participate thereat~~. To the extent permitted~~ . (iii) Any disclosures, provisions of information or rights to participate by ~~Law, each~~ one party ~~shall furnish~~ to the other party with copies of all material correspondence, filings and material communications between it and any such 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 under this Section ~~5.6 to the contrary~~5.3 may be made on a counsel-only basis, neither Purchaser nor Sellers shall be obligated to take or agree to commit to take any action that would violate applicable Law or their respective covenants under the Confidentiality Agreement or Section 5.5. (c) Purchaser and Sellers shall file, as promptly as practicable, but in any event no later than sixty-five (65) calendar days after the date of this Agreement (unless mutually extended by Purchaser and Sellers), notifications under the HSR Act, and Purchaser and Sellers shall file and provide, as promptly as practicable, any other filings and/or notifications or information required to obtain the Required Regulatory Approvals, including to the extent ~~applicable~~such party deems it advisable and necessary, ~~filing all applications with~~ and shall not be disclosed by such outside counsel to employees, officers or directors of the ~~FCC and any applicable State Regulators that~~ recipient unless express permission is obtained in advance from the source of the materials (Purchaser or Parent, as the case may be). Such designated disclosures or information may be ~~required by~~ redacted (A) to remove references concerning the ~~Communications Act~~ valuation of the Business and pricing and other competitively sensitive terms in the Contracts of Parent, Purchaser and their respective Affiliates, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or similar rules, regulations, policies, instructions and orders of State Regulators. In the event that the parties receive a request for any additional information after any such notification or filing, the parties shall respond to such requests, as applicable, as promptly as possible, and counsel for both parties will closely cooperate during the entirety of any such investigatory or review processconfidentiality concerns. (d) Purchaser and ~~Sellers~~ its Affiliates and Parent shall use their respective ~~reasonable~~ 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 ~~Sale under the HSR Act~~Pre-Closing Restructuring, the ~~▇▇▇▇▇▇▇ Act, as amended,~~ Sale and the ~~▇▇▇▇▇▇▇ Act, as amended, the Federal Trade Commission Act, as amended, the Communications~~ other transactions contemplated by this Agreement under any Competition and Foreign Investment 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 ~~Proceeding~~ 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 ~~Regulatory~~ Competition and Foreign Investment Laws, ~~Purchaser~~ Purchaser, its Affiliates and ~~Sellers~~ Parent shall ~~jointly (to the extent practicable) use their respective reasonable best efforts to~~ initiate and/or participate in any ~~Proceedings~~proceedings, whether judicial or administrative, in order ~~to:~~ to (i) oppose or defend against any ~~action~~ 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 ~~oppose~~ overturn any regulatory ~~action~~ 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 ~~Proceeding~~ 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 ~~Legal Restraint~~ Order that makes illegal or prohibits the consummation of the Pre-Closing Restructuring, the Closing or the other transactions contemplated by this Agreement resulting from any 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 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 faithAction. (e) ~~Notwithstanding any other provision~~ In furtherance of ~~this Agreement, but subject in all respects to~~ the ~~last sentence~~ undertakings in this Section ~~5.6(e)~~5.3, but except as set forth on Section 5.3(e) of the Purchaser Disclosure Schedule, Purchaser and Parent shall take all ~~reasonable~~ actions ~~necessary,~~ necessary to avoid or eliminate each and every impediment under any ~~Regulatory Laws,~~ 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:~~ including (i) 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 ~~Acquired Subsidiaries~~Transferred Entities, ~~Purchaser, and their respective Subsidiaries;~~ (ii) ~~conducting~~ amending any joint venture or other arrangement of the ~~Business after the Closing Date in a specified manner;~~ Transferred Entities and (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 (iv) otherwise taking or committing to take actions that after the Closing ~~Date~~ would limit Purchaser’s, the Transferred Entities or Purchaser’s ~~or its~~ other Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Acquired Subsidiaries, Purchaser, and their respective Subsidiaries, 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 their respective Subsidiaries to retain, any of the businesses, product lines or assets of the Acquired Subsidiaries (after giving effect to the Restructuring Transactions), Purchaser, or any of their respective SubsidiariesTransferred Entities. ~~All such efforts by Purchaser shall be unconditional, and no~~ No actions taken pursuant to this Section ~~5.6(e~~5.3(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; provided, however, that the effectiveness of any such action to be taken by Purchaser~~ occurred or 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 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 5.6occur. (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 consents, approvals or waivers pursuant to this Section 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: Stock Purchase Agreement (CARRIER GLOBAL Corp)

Required Actions. (a) Seller and Purchaser will, and ~~Sellers shall use~~ 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,~~ steps and to do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to consummate and make effective in the most expeditious manner possible the Transactions, including: (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Sale; (ii) taking all actions reasonably necessary to obtain (and cooperating with each other in obtaining) the Required Regulatory Approvals; (iii) the execution and delivery of any additional instruments reasonably necessary to consummate the Sale 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 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 not 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 Required Regulatory Approval; provided, however, that Purchaser shall be permitted to file any additional or 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 this Agreement (such approval not to be withheld, conditioned or delayed, to the 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, Purchaser and Sellers shall each keep the other reasonably apprised of the status of matters relating to the completion of the Sale and work cooperatively in connection with obtaining 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 to be undertaken pursuant to the provisions of this Section 5.6. In that regard, prior to the Closing, each party shall promptly consult with the other party to this Agreement to provide any necessary information with respect to (and, in the case of correspondence, provide the other party (or 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 and the Sale. 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 regarding the Sale, and permit the other party to review and discuss in advance, and consider in good faith the views of the other party in connection with, any proposed material written or oral communication with any such Governmental Entity. If 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, 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. To the extent practicable, neither Sellers nor Purchaser shall participate in any meeting with any Governmental Entity 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 gives the other party the opportunity to attend and participate thereat. To the extent permitted by Law, each party shall furnish the other party with copies of all material correspondence, filings and material communications between it and any such 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 obligated to take or agree to commit to take any action that would violate applicable Law or their respective covenants under the Confidentiality Agreement or Section 5.5. (c) Purchaser and Sellers shall file, as promptly as practicable, but in any event no later than sixty-five (65) calendar days after the date of this Agreement (unless mutually extended by Purchaser and Sellers), notifications under the HSR Act, and Purchaser and Sellers shall file and provide, as promptly as practicable, any other filings and/or notifications or information required to obtain the Required Regulatory Approvals, including to the extent applicable, 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 event that the parties receive a request for any additional information after any such notification or filing, the parties shall respond to such requests, as applicable, as promptly as possible, and counsel for both parties will closely cooperate during the entirety of any such investigatory or review process. (d) Purchaser and Sellers shall use their respective reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity undertakings solely with respect to the ~~Sale under the HSR Act, the ▇▇▇▇▇▇▇ Act, as amended, the ▇▇▇▇▇▇▇ Act, as amended, the Federal Trade Commission Act, as amended, the Communications Laws,~~ Companies 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 Proceeding is instituted (or threatened to be instituted) challenging the Sale as violative of any Regulatory Laws, Purchaser and Sellers shall jointly (to the extent practicable) use their respective reasonable best efforts to participate in any Proceedings, whether judicial or administrative, in order to: (i) oppose or defend against any action by any Governmental Entity to prevent or enjoin the consummation of the Sale; and/or (ii) take such action as necessary to oppose any regulatory action by any Governmental Entity to block consummation of the Sale, including by defending any Proceeding brought by any Governmental Entity in order to avoid the entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any Legal Restraint resulting from any 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 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 necessary, to avoid or eliminate each and every impediment ~~under~~ asserted by any Governmental Entity in connection with obtaining the Required Regulatory ~~Laws~~Approvals, so as to enable the Closing to occur as promptly as ~~practicable (and in any event no later than the Outside Date)~~practicable, including: , solely with respect to the Companies or the Business, (iA) agreeing to conditions imposed by, or taking any action required by, any Governmental Entity, (B) defending through litigation on the merits, including appeals, any Action asserted by any court or other proceeding by any Person, including any Governmental Entity, that seeks to or would prevent or prohibit or impede, interfere with or - 42 - delay the consummation of the Closing, (C) 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 ~~Acquired Subsidiaries~~Companies or the Business, ~~Purchaser~~including entering into customary ancillary agreements relating to any such sale, divestiture, licensing or disposition, and ~~their respective Subsidiaries;~~ (iiD) ~~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~~ 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 it 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, 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 ~~its Subsidiaries will take, or refrain from taking, any action, and (iv) otherwise taking or committing to take actions that after the Closing Date would limit Purchaser~~Seller’s or its Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Acquired Subsidiaries, Purchaser, and their respective Subsidiaries, 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~~5.5. (d) 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 their respective Subsidiaries to retain, any of the businesses, product lines or assets of the Acquired Subsidiaries (after giving effect to the Restructuring Transactions), Purchaser, or any of their respective Subsidiaries. All such efforts by Purchaser shall be unconditional, and no actions taken pursuant to this Section 5.6(e) in connection with obtaining consents or approvals under applicable Competition Laws shall be considered for purposes of determining whether a Material Adverse Effect has 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~~ anything else in this Agreement to the contrary: (i) ~~the obligations of~~ neither Seller nor Purchaser ~~under this Section 5.6~~ shall ~~not include~~ be required to, and neither Seller nor Purchaser ~~committing to (whether or not conditioned upon the consummation of the Closing) (x)~~ shall, in connection with ~~respect to~~ obtaining ~~any of~~ the Required Regulatory Approvals or setting such filings for hearing, settlement or other ~~than those governed by clause (y) below~~investigation, consent to the taking of any action ~~if such action~~or the imposition of any terms, ~~individually~~ conditions, limitations or ~~together~~ 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 ~~any other proposed action(s) relating~~ obtaining the Required Regulatory Approvals, consent to the ~~approvals governed by this clause (x)~~imposition of any terms, ~~would reasonably be expected to have, individually~~ conditions 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 limitations 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~~ Seller or any ~~State Regulators required in respect~~ of its Affiliates (other than the ~~Transactions contemplated herein, taking any actions or accepting any conditions, requirements, or other remedies proposed, requested, or required by the FCC~~ Companies) or any ~~State Regulators~~ of their respective businesses (~~any such conditions, requirements, actions or~~ other ~~remedies being hereinafter referred to as “Conditions”) to~~ than 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 PlanBusiness) (~~any such Condition being hereinafter referred to as~~ a “Seller Burdensome Condition”); ~~provided that, without limiting the foregoing in clauses (x)~~ and (y)iii) neither Purchaser nor Parent shall, including in connection with obtaining the ~~parties hereto acknowledge that the type of such actions or Conditions that may be proposed~~Required Regulatory Approvals, ~~or that Purchaser may be requested or required to accept, are illustrated by~~ (A) be required to consent to the ~~categories~~ imposition of ~~conditions, requirements, actions~~ any terms conditions or ~~other remedies that were imposed by the FCC (~~limitations on or with respect to ~~approvals required from the FCC)~~Parent, ~~by the State Regulators (with respect to approvals required from the State Regulators)~~ Purchaser 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~~ than, from and ~~its Subsidiaries)~~after the Closing, ~~nor any direct or indirect equityholder of Purchaser (~~the Companies) or any of ~~such equityholder’s Affiliates)~~their respective businesses (other than, ~~nor any portfolio company~~ from and after the Closing, the Business) or ~~investment fund Affiliated with any Guarantor, shall~~ (B) be required to ~~take~~ 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 ~~action in connection with~~ restriction on 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~~ operation 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~~properties or businesses of Parent or its Affiliates (other than, ~~product lines or Subsidiary not to be transferred pursuant to~~ from and ~~in accordance with~~ after the ~~terms and conditions of this Agreement; or~~ Closing, the Business) (~~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.~~ foregoing clause (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 consents, approvals or waivers pursuant to this Section 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 partiesiii), ~~(i)~~ a “Purchaser ~~shall, at its own expense, prepare and delive~~Burdensome Condition”).

Appears in 1 contract

Sources: Equity Interest Purchase Agreement

Required Actions. (a) Purchaser and ~~Sellers~~ Parent shall ~~use their respective~~ exercise reasonable best efforts ~~to take~~in taking, or ~~cause~~ causing to be taken, all actions, and ~~to do~~doing, or ~~cause~~ causing to be done, all things necessary, proper or advisable under any applicable Laws to consummate and make effective in ~~the most~~ an expeditious manner ~~possible~~ the ~~Transactions~~Sale and the other transactions contemplated by this Agreement, ~~including:~~ 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;~~ 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) required to be obtained or made by Purchaser or Parent or any of their respective controlled Affiliates in connection with the ~~Required Regulatory Approvals;~~ Sale and the other transactions contemplated by this 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, ~~and (iv) not acquiring any senior notes issued under~~ including the ~~Embarq Indenture for purposes of asserting an Event of Default (as defined in the Embarq Indenture) thereunder~~Ancillary Agreements. Additionally, each of ~~Sellers~~ Parent 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 not 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 Required Regulatory Approval; provided, however, that Purchaser shall be permitted to file any additional or 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 this Agreement (such approval not to be withheld, conditioned or delayed, to the extent any such approval would not reasonably be expected to result in the Closing occurring later than the Outside Date)Agreement. (b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and ~~Sellers~~ 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 ~~Required Regulatory Approval~~exemptions by, ~~including by working cooperatively~~ in ~~connection with~~ each case, any ~~sales, divestitures or dispositions of assets or businesses~~ Governmental Entity (if ~~and to the extent required to be undertaken pursuant to the provisions of this Section 5.6~~any). In that regard, prior to the Closing, subject to the terms and conditions of each ~~party~~ of the Confidentiality Agreement, the Clean Team Agreement and this Agreement, including Section 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 to this Agreement~~ Party to provide any necessary information with respect to (and, in the case of correspondence, provide the other ~~party~~ Party (or ~~its~~ 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 and this Section 6.3, to the ~~Sale. Each party~~ extent not prohibited by applicable Law, each 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 orally~~ Party of) any ~~material~~ communication from any Governmental Entity or other such Person regarding the ~~Sale~~Sale or the other transactions contemplated by this Agreement, and 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 ~~material~~ written or oral communication or submission with or to any such Governmental ~~Entity~~Entity or other such Person. If ~~either party~~ any 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~~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. To Purchaser, on one hand, and Parent, on the ~~extent practicable~~other hand, ~~neither Sellers nor Purchaser~~ including their respective Representatives, shall not participate in any meeting with any Governmental Entity in connection with this Agreement or the ~~Sale (~~Sale, or ~~make oral submissions at meetings~~ with any other Person in connection with any Action by a private party relating to any Competition Laws in connection with this Agreement or ~~in telephone or other conversations)~~ the Sale, unless it consults with the other ~~party~~ Party in advance ~~and~~ and, to the extent not prohibited by such Governmental Entity, gives the other ~~party~~ Party the opportunity to attend and participate thereat. ~~To the extent permitted by Law~~Purchaser and Parent may, as each ~~party shall furnish~~ deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other ~~party with copies of all material correspondence, filings and material communications between it~~ 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 ~~Governmental Entity with respect~~ 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 arrangements and (iii) as necessary to address reasonable privilege concerns. Notwithstanding the ~~Sale~~foregoing, Purchaser and ~~furnish~~ Parent shall jointly control the ~~other party with such reasonably necessary information~~ strategy and ~~reasonable assistance as the other party may reasonably request~~ timing for obtaining any clearances required or advisable under any Competition Laws or FDI Laws (if any) in connection with ~~its preparation of necessary filings or submissions of information~~ the Sale (including, without limitation, the right to determine whether to engage with any ~~such~~ Governmental ~~Entity. Notwithstanding anything in this Section 5.6 to the contrary~~Entity on a voluntary basis, ~~neither Purchaser nor Sellers shall be obligated to take or agree~~ whether to commit or to ~~take~~ agree with any ~~action that would violate~~ Governmental Entity to stay, toll or extend any applicable ~~Law~~ waiting period under any Competition Laws or ~~their respective covenants under the Confidentiality Agreement or Section 5.5~~FDI Laws). (c) Purchaser and Sellers shall file, as promptly as practicable, but in any event no later than sixty-five (65) calendar days after the date of this Agreement (unless mutually extended by Purchaser and Sellers), notifications under the HSR Act, and Purchaser and Sellers shall file and provide, as promptly as practicable, any other filings and/or notifications or information required to obtain the Required Regulatory Approvals, including to the extent applicable, 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 event that the parties receive a request for any additional information after any such notification or filing, the parties shall respond to such requests, as applicable, as promptly as possible, and counsel for both parties will closely cooperate during the entirety of any such investigatory or review process. (d) Purchaser and Sellers shall use their respective reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the 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 Proceeding is instituted (or threatened to be instituted) challenging the Sale as violative of any Regulatory Laws, Purchaser and Sellers shall jointly (to the extent practicable) use their respective reasonable best efforts to participate in any Proceedings, whether judicial or administrative, in order to: (i) oppose or defend against any action by any Governmental Entity to prevent or enjoin the consummation of the Sale; and/or (ii) take such action as necessary to oppose any regulatory action by any Governmental Entity to block consummation of the Sale, including by defending any Proceeding brought by any Governmental Entity in order to avoid the entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any Legal Restraint resulting from any 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 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 necessary, to avoid or eliminate each and every impediment under any 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, 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 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 (iv) otherwise taking or committing to take actions that after the Closing Date would limit Purchaser’s or its Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Acquired Subsidiaries, Purchaser, and their respective Subsidiaries, 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 their respective Subsidiaries to retain, any of the businesses, product lines or assets of the Acquired Subsidiaries (after giving effect to the Restructuring Transactions), Purchaser, or any of their respective Subsidiaries. All such efforts by Purchaser shall be unconditional, and no actions taken pursuant to this Section 5.6(e) in connection with obtaining consents or approvals under applicable Competition Laws shall be considered for purposes of determining whether a Material Adverse Effect has 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 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~~and legal, economist and other professional fees) to any third party or any Governmental Entity ~~in order~~ to obtain any ~~consents~~consent, ~~approvals~~ clearance, expiration or ~~waivers~~ termination of a waiting period, authorization, Order or approval pursuant to this Section ~~5.6~~6.3 (if any), other than the fees of and payments to ~~Sellers’~~ Parent’s 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: Stock Purchase Agreement (On Semiconductor Corp)

Required Actions. ~~(a) Purchaser~~ Upon the terms and ~~Sellers~~ subject to the conditions set forth in this Agreement, each of Purchaser, Seller and the Company shall use ~~their respective~~ its reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable ~~under any applicable Laws~~ to consummate and make ~~effective~~ effective, in the most expeditious manner ~~possible~~ practicable, the Transactions, including: : (i) obtaining in the ~~preparation~~ most expeditious manner practicable all necessary actions or nonactions, Consents, Governmental Authorizations and ~~filing~~ Orders (including with respect to the HSR Approval and the Required Regulatory Approvals, but subject to Section 6.02(b) and Section 6.02(c), as applicable) from Governmental Entities in connection with the authorization, execution, delivery, performance and consummation of this Agreement, the Ancillary Documents and the Transactions; (ii) vigorously defending any lawsuits or other legal proceedings, whether regulatory, judicial, administrative or other, to which it is a party challenging or affecting this Agreement, the Ancillary Documents or the Transactions (including all ~~forms~~regulatory proceedings necessary or advisable in connection with obtaining the HSR Approval and the Required Regulatory Approvals) or seeking to prohibit or delay the consummation of the Transactions or rescind, ~~registrations and notices required~~ vacate, or otherwise challenge any Orders granted; (iii) seeking to ~~be filed~~ have lifted or rescinded any injunction or restraining order which may adversely affect the ability of the parties to consummate the ~~Sale;~~ Transactions; (iiiv) ~~taking~~ as promptly as practicable, and in any event within 90 days after the date hereof or such later date as Seller and Purchaser may agree, making or causing to be made all ~~actions reasonably~~ necessary notifications, applications and filings (including with respect to ~~obtain (~~the HSR Approval and ~~cooperating~~ the Required Regulatory Approvals), and thereafter make any other required submissions, and pay any fees due in connection therewith, with ~~each other in obtaining)~~ respect to this Agreement, the Ancillary Documents and the Transactions required under or with respect to the HSR Approval and the Required Regulatory Approvals; provided, however, that Seller, the Company and Purchaser shall cooperate with each other in connection with determining whether any action by or in respect of, or filing with, any Governmental Entity is required in connection with the Transactions (~~iii~~including with respect to the HSR Approval and the Required Regulatory Approvals) and seeking any such actions, consents, approvals or waivers or making any such filings; (v) Seller using its reasonable best efforts, including paying reasonable consent fees, if necessary, to obtain the ~~execution~~ amendments contemplated by Section 7.03(c) in such a form as would satisfy the condition contained in Section 7.03(c); and (vi) executing and ~~delivery of~~ delivering any additional instruments ~~reasonably~~ necessary to consummate the ~~Sale~~ Transactions 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 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 not 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 Required Regulatory Approval; provided, however, that Purchaser shall be permitted to file any additional or 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 this Agreement (such approval not to be withheld, conditioned or delayed, to the 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, Purchaser and Sellers shall each keep the other reasonably apprised of the status of matters relating to the completion of the Sale and work cooperatively in connection with obtaining 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 to be undertaken pursuant to the provisions of this Section 5.6. In that regard, prior to the Closing, each party shall promptly consult with the other party to this Agreement to provide any necessary information with respect to (and, in the case of correspondence, provide the other party (or 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 and the Sale. 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 regarding the Sale, and permit the other party to review and discuss in advance, and consider in good faith the views of the other party in connection with, any proposed material written or oral communication with any such Governmental Entity. If 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, 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. To the extent practicable, neither Sellers nor Purchaser shall participate in any meeting with any Governmental Entity 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 gives the other party the opportunity to attend and participate thereat. To the extent permitted by Law, each party shall furnish the other party with copies of all material correspondence, filings and material communications between it and any such 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 obligated to take or agree to commit to take any action that would violate applicable Law or their respective covenants under the Confidentiality Agreement or Section 5.5. (c) Purchaser and Sellers shall file, as promptly as practicable, but in any event no later than sixty-five (65) calendar days after the date of this Agreement (unless mutually extended by Purchaser and Sellers), notifications under the HSR Act, and Purchaser and Sellers shall file and provide, as promptly as practicable, any other filings and/or notifications or information required to obtain the Required Regulatory Approvals, including to the extent applicable, 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 event that the parties receive a request for any additional information after any such notification or filing, the parties shall respond to such requests, as applicable, as promptly as possible, and counsel for both parties will closely cooperate during the entirety of any such investigatory or review process. (d) Purchaser and Sellers shall use their respective reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the 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 Proceeding is instituted (or threatened to be instituted) challenging the Sale as violative of any Regulatory Laws, Purchaser and Sellers shall jointly (to the extent practicable) use their respective reasonable best efforts to participate in any Proceedings, whether judicial or administrative, in order to: (i) oppose or defend against any action by any Governmental Entity to prevent or enjoin the consummation of the Sale; and/or (ii) take such action as necessary to oppose any regulatory action by any Governmental Entity to block consummation of the Sale, including by defending any Proceeding brought by any Governmental Entity in order to avoid the entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any Legal Restraint resulting from any 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 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 necessary, to avoid or eliminate each and every impediment under any 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, 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 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 (iv) otherwise taking or committing to take actions that after the Closing Date would limit Purchaser’s or its Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Acquired Subsidiaries, Purchaser, and their respective Subsidiaries, 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 their respective Subsidiaries to retain, any of the businesses, product lines or assets of the Acquired Subsidiaries (after giving effect to the Restructuring Transactions), Purchaser, or any of their respective Subsidiaries. All such efforts by Purchaser shall be unconditional, and no actions taken pursuant to this Section 5.6(e) in connection with obtaining consents or approvals under applicable Competition Laws shall be considered for purposes of determining whether a Material Adverse Effect has 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 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 consents, approvals or waivers pursuant to this Section 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: Stock Purchase Agreement (Alabama Gas Corp)

Required Actions. (a) Purchaser and ~~Sellers~~ Parent 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 ~~the most~~ an expeditious manner ~~possible~~ the ~~Transactions~~Sale and the other transactions contemplated by this Agreement, ~~including:~~ including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the ~~Sale;~~ 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 ~~Required Regulatory Approvals;~~ 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 ~~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 ~~Sellers~~ Parent 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 ~~Required Regulatory Approval; provided~~consent, ~~however~~clearance, ~~that Purchaser shall be permitted to file~~ expiration or termination of a waiting period, authorization, Order or approval of, or any ~~additional or updated applications for~~ exemption by, 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 this Agreement (such approval not Governmental Entity necessary to be ~~withheld, conditioned~~ obtained at or ~~delayed,~~ prior to the ~~extent any such approval would not reasonably be expected to result in the Closing occurring later than the Outside Date)~~Closing. (b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and ~~Sellers~~ 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 ~~Required Regulatory Approval~~exemptions by, ~~including by working cooperatively in connection with~~ any ~~sales, divestitures or dispositions of assets or businesses if and to the extent required to be undertaken pursuant to the provisions of this Section 5.6~~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 ~~party~~ of Parent and Purchaser 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 ~~its~~ 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 ~~Sale. Each~~ 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 ~~orally~~ of) any material communication from any Governmental Entity or other such Person regarding the ~~Sale~~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 ~~material~~ written or oral communication or submission with or to any such Governmental ~~Entity~~Entity or other such Person. If ~~either~~ 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~~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. To Purchaser, on one hand, and Parent, on the ~~extent practicable~~other hand, ~~neither Sellers nor Purchaser~~ shall not participate in any meeting with any Governmental Entity in connection with this Agreement or the ~~Sale (~~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~~ and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate thereat. ~~To the extent permitted by Law~~Purchaser and Parent may, as each ~~party shall furnish~~ deems in good faith to be advisable and necessary, reasonably designate any competitively sensitive material provided to the other party ~~with copies of all material correspondence, filings and material communications between it~~ 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 ~~Governmental Entity with respect~~ 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 ~~the Sale, and furnish the other party with such reasonably~~ (iii) as necessary ~~information and~~ to address 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 obligated to take or agree to commit to take any action that would violate applicable Law or their respective covenants under the Confidentiality Agreement or Section 5.5privilege concerns. (c) Purchaser and ~~Sellers~~ Parent shall ~~file~~file or cause to be filed, as promptly as practicable, but in any event no later than ~~sixty-~~five (655) ~~calendar days~~ Business Days after the date of this ~~Agreement (unless mutually extended by Purchaser and Sellers)~~Agreement, notifications under the HSR Act, and Purchaser and ~~Sellers~~ Parent shall file ~~and provide~~or cause to be filed, as ~~promptly~~ 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 ~~or information required to obtain the Required Regulatory Approvals~~set forth (or, ~~including to the extent~~ where applicable, ~~filing all applications with~~ drafts thereof) on Section 6.3(c) of 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 event that the parties receive a request for any additional information after any such notification or filingPurchaser Disclosure Schedule (collectively, the ~~parties shall respond to such requests, as applicable, as promptly as possible,~~ “Antitrust and ~~counsel for both parties will closely cooperate during the entirety of any such investigatory or review process~~Foreign Investment Filings”). (d) Purchaser ~~and Sellers~~ shall use ~~their respective reasonable~~ its best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the 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”)Antitrust and Foreign Investment Filings. In connection therewith, if any ~~Proceeding~~ Action is instituted ~~(or threatened to be instituted)~~ challenging the Sale or the other transactions contemplated by this Agreement as violative of any ~~Regulatory~~ applicable Competition Laws, Purchaser ~~and Sellers~~ shall ~~jointly (to the extent practicable)~~ use ~~their respective~~ its reasonable best efforts to initiate and/or participate in any ~~Proceedings~~Actions, whether judicial or administrative, ~~in order to:~~ to (i) oppose or defend against any ~~action~~ Action by any Governmental Entity to prevent or enjoin the consummation of the ~~Sale;~~ Sale or the other transactions contemplated by this Agreement and/or (ii) take such action as necessary to ~~oppose~~ overturn any regulatory ~~action~~ Action by any Governmental Entity to block consummation of the ~~Sale~~Sale or the other transactions contemplated by this Agreement, including by defending any ~~Proceeding~~ 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 ~~Legal Restraint~~ Order that makes illegal or prohibits the consummation of the Sale or the other transactions contemplated by this Agreement 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 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 faithAction. (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 ~~necessary,~~ reasonably necessary to avoid or eliminate each and every impediment under any ~~Regulatory Laws,~~ 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:~~ 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 ~~Acquired Subsidiaries~~Transferred Entities, 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 (ivii) otherwise taking or committing to take actions that after the Closing ~~Date~~ would limit Purchaser’s ’s, the Transferred Entities’ or ~~its~~ their respective Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the ~~Acquired Subsidiaries~~Transferred Entities, Purchaser, and their respective Subsidiaries~~, and in~~ . 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~~ or Purchaser’s Subsidiaries’ ability ~~of Purchaser, the Acquired Subsidiaries, or their respective Subsidiaries~~ to retain, any of the businesses, product lines or assets of the ~~Acquired Subsidiaries (after giving effect to the Restructuring Transactions)~~Transferred Entities, Purchaser, or any of their respective Subsidiaries. ~~All such efforts by Purchaser shall~~ No actions required to be ~~unconditional, and no actions~~ taken pursuant to this Section ~~5.6(e~~6.3(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; provided, however, that the effectiveness of any such action to be taken by Purchaser~~ occurred or 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 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 5.6occur. (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 ~~consents~~consent, ~~approvals~~ clearance, expiration or ~~waivers~~ termination of a waiting period, authorization, Order or approval pursuant to this Section ~~5.6, other than the fees of and payments to Sellers’ legal and professional advisors~~6.3. (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: Stock Purchase Agreement (PQ Group Holdings Inc.)

Required Actions. (a) Purchaser and 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 the most expeditious manner possible the Transactions, including: (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Sale; (ii) taking all actions reasonably necessary to obtain (and cooperating with each other in obtaining) the Required Regulatory Approvals; (iii) the execution and delivery of any additional instruments reasonably necessary to consummate the Sale 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 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 not 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 Required Regulatory Approval; provided, however, that Purchaser shall be permitted to file any additional or 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 this Agreement (such approval not to be withheld, conditioned or delayed, to the 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, Purchaser and Sellers shall each keep the other reasonably apprised of the status of matters relating to the completion of the Sale and work cooperatively in connection with obtaining 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 to be undertaken pursuant to the provisions of this Section 5.6. In that regard, prior to the Closing, each party shall promptly consult with the other party to this Agreement to provide any necessary information with respect to (and, in the case of correspondence, provide the other party (or 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 and the Sale. 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 regarding the Sale, and permit the other party to review and discuss in advance, and consider in good faith the views of the other party in connection with, any proposed material written or oral communication with any such Governmental Entity. If 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, 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. To the extent practicable, neither Sellers nor Purchaser shall participate in any meeting with any Governmental Entity 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 gives the other party the opportunity to attend and participate thereat. To the extent permitted by Law, each party shall furnish the other party with copies of all material correspondence, filings and material communications between it and any such 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 obligated to take or agree to commit to take any action that would violate applicable Law or their respective covenants under the Confidentiality Agreement or Section 5.5. (c) Purchaser and Sellers shall file, as promptly as practicable, but in any event no later than sixty-five (65) calendar days after the date of this Agreement (unless mutually extended by Purchaser and Sellers), notifications under the HSR Act, and Purchaser and Sellers shall file and provide, as promptly as practicable, any other filings and/or notifications or information required to obtain the Required Regulatory Approvals, including to the extent applicable, 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 event that the parties receive a request for any additional information after any such notification or filing, the parties shall respond to such requests, as applicable, as promptly as possible, and counsel for both parties will closely cooperate during the entirety of any such investigatory or review process. (d) Purchaser and Sellers shall use their respective reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the 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 Proceeding is instituted (or threatened to be instituted) challenging the Sale as violative of any Regulatory Laws, Purchaser and Sellers shall jointly (to the extent practicable) use their respective reasonable best efforts to participate in any Proceedings, whether judicial or administrative, in order to: (i) oppose or defend against any action by any Governmental Entity to prevent or enjoin the consummation of the Sale; and/or (ii) take such action as necessary to oppose any regulatory action by any Governmental Entity to block consummation of the Sale, including by defending any Proceeding brought by any Governmental Entity in order to avoid the entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any Legal Restraint resulting from any 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 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 necessary, to avoid or eliminate each and every impediment under any 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, 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 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 (iv) otherwise taking or committing to take actions that after the Closing Date would limit Purchaser’s or its Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Acquired Subsidiaries, Purchaser, and their respective Subsidiaries, 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 their respective Subsidiaries to retain, any of the businesses, product lines or assets of the Acquired Subsidiaries (after giving effect to the Restructuring Transactions), Purchaser, or any of their respective Subsidiaries. All such efforts by Purchaser shall be unconditional, and no actions taken pursuant to this Section 5.6(e) in connection with obtaining consents or approvals under applicable Competition Laws shall be considered for purposes of determining whether a Material Adverse Effect has 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 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 consents, approvals or waivers pursuant to this Section 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 (Lumen Technologies, Inc.)

Required Actions. (a) Purchaser and ~~Sellers~~ Parent 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 the most expeditious manner possible the ~~Transactions~~Transactions and the other transactions contemplated by this Agreement, ~~including:~~ 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 ~~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 applicable Competition Laws) required under any applicable Laws and/or by this Agreement to be obtained or made by Purchaser or Parent or any of their respective Subsidiaries in connection with the ~~Required Regulatory Approvals;~~ Transactions and the other transactions contemplated by this Agreement, and (iii) the execution and delivery of any additional instruments ~~reasonably~~ necessary to consummate the ~~Sale~~ Transactions 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 ~~Sellers~~ Parent 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 not 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 ~~Required Regulatory~~ 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~~; provided~~, however, that Purchaser shall be permitted to file any additional or 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 this Agreement (such approval not to be withheld, conditioned or delayed, to the extent any such approval would not reasonably be expected to result in the Closing occurring later than the Outside Date)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 ~~Sellers~~ 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 ~~Required Regulatory Approval~~exemptions by, ~~including by working cooperatively in connection with~~ any ~~sales, divestitures or dispositions of assets or businesses if and to the extent required to be undertaken pursuant to the provisions of this Section 5.6~~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 5.2, to the extent not prohibited by applicable Law, each ~~party~~ Party shall promptly consult with the other ~~party~~ Party to this Agreement to provide any necessary information with respect to (and, in the case of correspondence, provide the other ~~party~~ Party (or ~~its~~ 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 Transactions, and the other transactions contemplated by this Agreement. Subject to the Confidentiality Agreement and Section 5.2, to the ~~Sale. Each party~~ extent not prohibited by applicable Law, each 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 orally~~ Party of) any ~~material~~ communication from any Governmental Entity regarding the ~~Sale~~Transactions, or the other transactions contemplated by this Agreement, and 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 ~~material~~ written or oral communication or submission with or to any such Governmental Entity. If ~~either party~~ any 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. ~~To the extent practicable, neither Sellers nor Purchaser~~ No Party shall participate in any meeting with any Governmental Entity in connection with this ~~Agreement~~ Agreement, the Transactions, or with any other Person in connection with any proceeding or Action by a private Party relating to any applicable Competition Laws in connection with this 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~~ and, to the extent not prohibited by such Governmental Entity, gives the other ~~party~~ Party the opportunity to attend and participate thereat. To Subject to the Confidentiality Agreement and Section 5.2, to the extent ~~permitted~~ not prohibited by applicable Law, each ~~party~~ Party shall furnish the other ~~party~~ Party with copies of all ~~material~~ correspondence, ~~filings~~ filings, submissions and ~~material~~ 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~~Transactions, or the other transactions contemplated by this Agreement, and furnish the other ~~party~~ Party with such ~~reasonably~~ necessary information and reasonable assistance as the other ~~party~~ Party may reasonably request in connection with its preparation of necessary filings or submissions of information to any such Governmental ~~Entity~~Entity or other such Person. ~~Notwithstanding anything in this Section 5.6~~ Purchaser and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the ~~contrary~~other Party under this Agreement as “outside counsel/corporate in-house counsel only.” Such designated materials, ~~neither Purchaser nor Sellers~~ and the information contained therein, shall be ~~obligated~~ given only to ~~take~~ 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 ~~agree~~ 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 ~~commit~~ this Agreement may be redacted (i) to ~~take~~ remove references concerning the valuation of the Business, (ii) as necessary to comply with contractual 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 ~~action that would violate applicable Law or their respective covenants under the Confidentiality Agreement or Section 5.5~~decisions with respect to such strategy. (c) Purchaser and ~~Sellers~~ Parent shall ~~file,~~ file any filings and/or notifications under applicable Competition Laws as promptly as ~~practicable~~possible. Notwithstanding anything to the contrary in this Agreement, ~~but in~~ no Party shall make any event no later than sixty-five (65) calendar days after the date of this Agreement (unless mutually extended by Purchaser and Sellers), notifications under the HSR Act, and Purchaser and Sellers shall file and provide, as promptly as practicable, any other filings and/or notifications under applicable Competition Laws in any jurisdiction, other than a Required Jurisdiction or ~~information required~~ 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 obtain the Required Regulatory Approvals, including to the extent applicable, 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 Regulatorsagree). In the event that the ~~parties~~ Parties receive any request for information or documentary material from any Governmental Entity, including a request for ~~any~~ additional information ~~after~~ or documentary materials pursuant to any ~~such notification or filing~~applicable Competition Laws, the ~~parties~~ Parties shall ~~respond to~~ comply with such ~~requests, as applicable,~~ requests as promptly as ~~possible~~possible (and in any event within two (2) months after receipt thereof, unless otherwise agreed to by the Parties) and produce documents, responses to interrogatories, witnesses for deposition, or other information on a rolling basis, and counsel for both ~~parties~~ Parties will closely cooperate during the entirety of any such investigatory or review process. (d) Purchaser and ~~Sellers shall use their respective reasonable best efforts to~~ 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 ~~Sale~~ Transactions, and 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, 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 ~~Proceeding~~ Action is instituted (or threatened to be instituted) challenging the ~~Sale~~ Transactions, or the other transactions contemplated by this Agreement as violative of any ~~Regulatory~~ applicable Competition Laws, Purchaser and ~~Sellers~~ Parent shall jointly ~~(to the extent practicable) use their respective reasonable best efforts to~~ initiate and/or participate in any ~~Proceedings~~proceedings, whether judicial or administrative, ~~in order to:~~ to (i) initiate, 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 ~~oppose~~ overturn any regulatory ~~action~~ Action by any Governmental Entity to block consummation of the ~~Sale~~Transactions, 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 ~~Proceeding~~ 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 ~~Legal Restraint~~ Order that makes illegal or prohibits the consummation of the Transactions, or the other transactions contemplated by this Agreement 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 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 faithAction. (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, ~~Purchaser~~ and shall cause its Affiliates to, take all ~~reasonable~~ actions ~~necessary,~~ necessary to avoid or eliminate each and every impediment under any ~~Regulatory Laws,~~ 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, ~~including:~~ if any, in the jurisdiction set forth on Section 5.3(c) of the Parent Disclosure Schedule as promptly as practicable, including (i) proposing, negotiating, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of the ~~Acquired Subsidiaries~~Transferred Entities, 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 (ivii) otherwise taking or committing to take actions that after the Closing ~~Date~~ would limit Purchaser’s ’s, the Transferred Entities or ~~its~~ their respective Subsidiaries’ freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the ~~Acquired Subsidiaries~~Transferred Entities, Purchaser, and their respective ~~Subsidiaries~~Subsidiaries (collectively, ~~and in~~ the “Remedies”). In that regard Purchaser shall ~~cause the Acquired Subsidiaries to~~ and, if requested by Purchaser, Parent shall (but, ~~without modifying~~ subject to Purchaser’s obligations under this Agreement, including ~~the obligations set forth in~~ this Section ~~5.6)~~ 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, ~~the ability of~~ or Purchaser~~, the Acquired Subsidiaries,~~ ’s or Parent’s or their respective ~~Subsidiaries~~ Subsidiaries’ ability to retain, any of the businesses, product lines or assets of the ~~Acquired Subsidiaries (after giving effect to the Restructuring Transactions)~~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). All such efforts by Purchaser shall be unconditional, and no actions taken pursuant to this Section ~~5.6(e~~5.3(e) ~~in connection with obtaining consents or approvals under applicable Competition Laws~~ nor the impact thereof on the Business shall be considered for purposes of determining whether a Business Material Adverse Effect has ~~occurred; provided, however, that the effectiveness of any such action to be taken by Purchaser~~ occurred or may ~~be conditioned upon the Closing~~occur. Notwithstanding ~~the foregoing or any other provision of this Agreement~~ anything herein 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 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 Parent shall not be obligated to take or agree or commit to take any ~~action:~~ such action (iA) 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 pursuant to and in accordance with~~ impacts 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 SellersRetained Businesses. (gf) Purchaser agrees to provide such ~~information reasonably available~~ security and assurances 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~~ Transactions are consummated, Purchaser shall be responsible for all ~~filing~~ fees and ~~similar~~ payments (including filing fees ~~under the HSR Act~~and legal, economist and other professional fees) to any third party or any Governmental Entity ~~in order~~ to obtain any ~~consents~~consent, ~~approvals~~ clearance, expiration or ~~waivers~~ termination of a waiting period, authorization, Order or approval pursuant to this Section ~~5.6~~5.3 or Section 5.5, other than the fees of and payments to ~~Sellers’~~ Parent’s 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: Transaction Agreement (Ebay Inc)

Common use of Required Actions Clause in Contracts