Required Actions. (a) Purchaser and Seller shall use their respective reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to consummate and make effective in an expeditious manner the Sale and the other transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Sale and the other transactions contemplated by this Agreement and (ii) taking all actions reasonably necessary to obtain (and cooperating with each other in obtaining) any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity (“Regulatory Approvals”) (which actions shall include furnishing all information required under any Regulatory Laws) required to be obtained or made by Purchaser or Seller or any of their respective Affiliates in connection with the Sale and the other transactions contemplated by this Agreement or that otherwise become applicable to the transactions contemplated by this Agreement. Additionally, each of Seller and Purchaser shall take, or cause to be taken, all actions, and do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to fulfill all conditions precedent to this Agreement as promptly as practicable and shall not (and each of the Seller and Purchaser shall cause Purchaser Sponsor, its controlled Affiliates and Representatives not to) take any action after the date of this Agreement that would reasonably be expected to (A) materially prevent, delay or impede the obtaining of, or result in not obtaining, any Regulatory Approvals required to be obtained or made by Purchaser or Seller, or any of their respective Affiliates in connection with the Sale and the other transactions contemplated by this Agreement, or (B) otherwise cause any of the conditions set forth in Article IX of this Agreement to fail to be satisfied or prevent, delay or impede the consummation of the Sale or any other transaction contemplated by this Agreement. (b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and Seller shall each keep the other apprised of the status of matters relating to the completion of the Sale and the other transactions contemplated by this Agreement and work cooperatively in connection with obtaining all required Regulatory Approvals. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law, each of Seller and Purchaser shall promptly consult with the other party to provide any necessary information with respect to all filings made by such party with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement, the Sale and the other transactions contemplated by this Agreement. Subject to the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law, each party to this Agreement shall promptly inform the other party to this Agreement, and if in writing, furnish the other party with copies of (or, in the case of oral communications, advise the other party of) any communication from any Governmental Entity or other such Person regarding the Sale or the other transactions contemplated by this Agreement, and permit the other party to review and discuss reasonably in advance, and consider in good faith the views of the other party in connection with, any proposed written or oral communication, correspondence or submission with or to any such Governmental Entity or other such Person. If any party to this Agreement or any Representative of such party receives a request for additional information or documentary material from any Governmental Entity with respect to the Sale or the other transactions contemplated by this Agreement, then such party will make, or cause to be made, promptly and after consultation with the other party to this Agreement, an appropriate response in compliance with such request. Purchaser or its Representatives, on one hand, and Seller or its Representatives, on the other hand, shall not participate in any meeting with any Governmental Entity in connection with this Agreement or the Sale, or with any other Person in connection with any Action by a private party relating to any Regulatory Laws in connection with this Agreement or the Sale, or make oral submissions at meetings or in telephone or other conversations, unless it consults with the other party reasonably in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate thereat. Purchaser and Seller may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other party under this Agreement as “outside counsel only.” Such designated materials and any materials provided by Purchaser to Seller or by Seller to Purchaser pursuant to this Section 6.3, and the information contained therein, shall be given only to the outside legal counsel of the recipient and shall not be disclosed by such outside counsel to employees (other than in-house counsel), officers or directors of the recipient, unless express permission is obtained in advance from the source of the materials (Purchaser or Seller, as the case may be) or its legal counsel; it being understood that materials provided pursuant to this Agreement may be redacted (i) to remove references concerning the valuation of the Business, (ii) as necessary to comply with contractual obligations and (iii) as necessary to protect privileged attorney-client communications or attorney work product. (c) Purchaser and Seller shall file or cause to be filed, as promptly as practicable, but in any event no later than twenty-five (25) Business Days after the date of this Agreement, notifications under the HSR Act, and Purchaser and Seller shall file or cause to be filed, as promptly as practicable, any other filings and/or notifications under applicable Regulatory Laws. (d) Purchaser shall use its 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 any Regulatory Laws. In connection therewith, if any Action is instituted (or threatened to be instituted) challenging the Sale or the other transactions contemplated by this Agreement as violative of any Regulatory Laws, Purchaser shall use its reasonable best efforts to initiate and/or participate in any Actions, whether judicial or administrative, to (i) oppose or defend against any Action by any Governmental Entity to prevent or enjoin the consummation of the Sale or the other transactions contemplated by this Agreement and/or (ii) take such action as necessary to overturn any regulatory Action by any Governmental Entity to block the consummation of the Sale or the other transactions contemplated by this Agreement, including by defending any such Action brought by any Governmental Entity to avoid the entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any Order that makes illegal, or prohibits the consummation of, the Sale or the other transactions contemplated by this Agreement resulting from any such Action. (e) Notwithstanding any other provision of this Agreement, Purchaser shall, and shall cause its controlled Affiliates, to use reasonable best efforts to take all 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, agreeing to, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of the Transferred Entities, and Purchaser, and (ii) otherwise taking or committing to take actions, or agreeing to restrictions, that after the Closing would limit the Transferred Entities’, or Purchaser’s freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred Entities or Purchaser (such actions contemplated in clauses (i) and (ii), “Remedial Actions”); provided, however, and notwithstanding the foregoing or anything to the contrary herein, nothing in this Agreement shall be construed (y) to require Purchaser or its Affiliates (or permit Seller, the Transferred Entities, or any of their respective Affiliates) to offer, propose, take, negotiate, commit to, effect or agree to take any Remedial Action if such action, individually or in the aggregate with all other such actions taken together, would reasonably be expected to have a material adverse effect on the financial condition or results of the operations of the Transferred Entities, taken as a whole (it being understood, for purposes of determining whether such Remedial Action would reasonably be expected to have such a material adverse effect, any proceeds received, or expected to be received, from effecting any Remedial Action shall not be taken into consideration) or (z) to require Purchaser to commit to take or agree to take any such Remedial Actions which would bind Purchaser or its Affiliates in respect of any matter if the Closing does not occur. No actions taken pursuant to this Section 6.3(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occur. (f) Whether or not the Sale is consummated, Purchaser shall be responsible for all filing fees, including filing fees under the HSR Act, due to any Governmental Entity to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section 6.3.

Appears in 1 contract

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

Required Actions. ~~(a) Purchaser and Seller shall use their respective reasonable best efforts~~ Notwithstanding anything to ~~take, or cause to be taken, all actions, and do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to consummate and make effective~~ the contrary set forth in ~~an expeditious manner the Sale and the other transactions contemplated by~~ this Agreement, ~~including (i) the preparation and filing of all forms, registrations and notices required to~~ Parent shall not be ~~filed to consummate the Sale and the other transactions contemplated by~~ obligated under this ~~Agreement and (ii) taking all actions reasonably necessary to obtain (and cooperating~~ Section 5.08 or otherwise with each other in obtaining) any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity (“Regulatory Approvals”) (which actions shall include furnishing all information required under any Regulatory Laws) required to be obtained or made by Purchaser or Seller or any of their respective Affiliates in connection with the Sale and the other transactions contemplated by this Agreement or that otherwise become applicable respect to the transactions contemplated by this Agreement~~. Additionally~~, ~~each~~ to take or refrain from taking or to agree to it, its Affiliates or Subsidiaries or the Company or its Subsidiaries taking or refraining from taking any action (including any amendment, waiver or termination of ~~Seller~~ any agreement, exhibit or schedule, including this Agreement and ~~Purchaser shall take~~the Exhibits and Schedules to this Agreement) or agree to or accept to any limitation, action, restriction, condition or requirement which, individually or together with all other such limitations, actions, restrictions, conditions or requirements, would, or ~~cause~~ would reasonably be expected to, (i) impose any requirement on Parent or any of its Affiliates (including the Company or any of its Subsidiaries), or their respective shareholders or investors to make, or commit to make, other than as contemplated by the Summary Business Plan, any material capital contribution or enter into or issue any capital guarantee or keep well that would require any material contribution of capital or making a similar capital contribution undertaking, or impose, other than as contemplated by the Summary Business Plan, any non-di minimis adverse condition or non-di minimis adverse limitation on the Equity Investors or any of their investment funds, portfolio companies or other Affiliates (with respect to such conditions or limitations, other than Parent, the Company (after Closing) or any of their Subsidiaries), (ii) require any materially adverse deviation from the key terms of, or materially impair the aggregate economic benefits reasonably expected to be ~~taken~~derived by Parent and its Affiliates from the execution of, the Summary Business Plan with respect to the Company and the Company Insurance Subsidiaries or (iii) have a materially adverse effect on the business, results of operations of financial condition of the Company and its Subsidiaries, taken as a whole (any such requirement, individually or together with all ~~actions~~other such requirements, ~~and do~~a “Burdensome Condition”). Without the prior written consent of Parent, ~~or cause to be done, all things necessary, proper or advisable under any applicable Laws to fulfill all conditions precedent to this Agreement as promptly as practicable and~~ the Company shall not (and ~~each of the Seller and Purchaser~~ shall cause ~~Purchaser Sponsor,~~ its ~~controlled Affiliates and Representatives~~ Subsidiaries not to) take any action after the date of this Agreement that would reasonably be expected to (A) materially prevent, delay or impede the obtaining of, or result in not obtaining, any Regulatory Approvals required to be obtained or made by Purchaser or Seller, or any of their respective Affiliates in connection with the Sale and the other transactions contemplated by this Agreement, or (B) otherwise cause any of the conditions set forth in Article IX of this Agreement to fail to be satisfied or prevent, delay or impede the consummation of the Sale or any other transaction contemplated by this Agreement. (b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and Seller shall each keep the other apprised of the status of matters relating to the completion of the Sale and the other transactions contemplated by this Agreement and work cooperatively in connection with obtaining all required Regulatory Approvals. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law, each of Seller and Purchaser shall promptly consult with the other party to provide any necessary information with respect to all filings made by such party with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement, the Sale and the other transactions contemplated by this Agreement. Subject to the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law, each party to this Agreement shall promptly inform the other party to this Agreement, and if in writing, furnish the other party with copies of (or, in the case of oral communications, advise the other party of) any communication from any Governmental Entity or other such Person regarding the Sale or the other transactions contemplated by this Agreement, and permit the other party to review and discuss reasonably in advance, and consider in good faith the views of the other party in connection with, any proposed written or oral communication, correspondence or submission with or to any such Governmental Entity or other such Person. If any party to this Agreement or any Representative of such party receives a request for additional information or documentary material from any Governmental Entity with respect to the Sale or the other transactions contemplated by this Agreement, then such party will make, or cause to be made, promptly and after consultation with the other party to this Agreement, an appropriate response in compliance with such request. Purchaser or its Representatives, on one hand, and Seller or its Representatives, on the other hand, shall not participate in any meeting with any Governmental Entity in connection with this Agreement or the Sale, or with any other Person in connection with any Action by a private party relating to any Regulatory Laws in connection with this Agreement or the Sale, or make oral submissions at meetings or in telephone or other conversations, unless it consults with the other party reasonably in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate thereat. Purchaser and Seller may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other party under this Agreement as “outside counsel only.” Such designated materials and any materials provided by Purchaser to Seller or by Seller to Purchaser pursuant to this Section 6.3, and the information contained therein, shall be given only to the outside legal counsel of the recipient and shall not be disclosed by such outside counsel to employees (other than in-house counsel), officers or directors of the recipient, unless express permission is obtained in advance from the source of the materials (Purchaser or Seller, as the case may be) or its legal counsel; it being understood that materials provided pursuant to this Agreement may be redacted (i) to remove references concerning the valuation of the Business, (ii) as necessary to comply with contractual obligations and (iii) as necessary to protect privileged attorney-client communications or attorney work product. (c) Purchaser and Seller shall file or cause to be filed, as promptly as practicable, but in any event no later than twenty-five (25) Business Days after the date of this Agreement, notifications under the HSR Act, and Purchaser and Seller shall file or cause to be filed, as promptly as practicable, any other filings and/or notifications under applicable Regulatory Laws. (d) Purchaser shall use its 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 any Regulatory Laws. In connection therewith, if any Action is instituted (or threatened to be instituted) challenging the Sale or the other transactions contemplated by this Agreement as violative of any Regulatory Laws, Purchaser shall use its reasonable best efforts to initiate and/or participate in any Actions, whether judicial or administrative, to (i) oppose or defend against any Action by any Governmental Entity to prevent or enjoin the consummation of the Sale or the other transactions contemplated by this Agreement and/or (ii) take such action as necessary to overturn any regulatory Action by any Governmental Entity to block the consummation of the Sale or the other transactions contemplated by this Agreement, including by defending any such Action brought by any Governmental Entity to avoid the entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any Order that makes illegal, or prohibits the consummation of, the Sale or the other transactions contemplated by this Agreement resulting from any such Action. (e) Notwithstanding any other provision of this Agreement, Purchaser shall, and shall cause its controlled Affiliates, to use reasonable best efforts to take all 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, agreeing to, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of the Transferred Entities, and Purchaser, and (ii) otherwise taking or committing to take actions, or agreeing to restrictions, that after the Closing would limit the Transferred Entities’, or Purchaser’s freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred Entities or Purchaser (such actions contemplated in clauses (i) and (ii), “Remedial Actions”); provided, however, and notwithstanding the foregoing or anything to the contrary herein, nothing in this Agreement shall be construed (y) to require Purchaser or its Affiliates (or permit Seller, the Transferred Entities, or any of their respective Affiliates) to offer, propose, take, negotiate, commit to, effect or agree to ~~take~~ the taking or refraining from any ~~Remedial Action if such~~ action or accept any limitation, action, restriction, condition or requirement that, individually or in the ~~aggregate with all other such actions taken together~~aggregate, would reasonably be expected to have a material adverse effect on the financial condition or results of the operations of the Transferred Entities, taken as a whole (it being understood, for purposes of determining whether such Remedial Action would reasonably be expected to have such a material adverse effect, any proceeds receivedwould, or would be reasonably expected ~~to be received~~to, from effecting any Remedial Action shall not be taken into consideration) or (z) to require Purchaser to commit to take or agree to take any such Remedial Actions which would bind Purchaser or its Affiliates result in ~~respect of any matter if the Closing does not occur. No actions taken pursuant to this Section 6.3(e) shall be considered for purposes of determining whether~~ a ~~Business Material Adverse Effect has occurred or may occur~~Burdensome Condition. (f) Whether or not the Sale is consummated, Purchaser shall be responsible for all filing fees, including filing fees under the HSR Act, due to any Governmental Entity to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section 6.3.

Appears in 1 contract

Sources: Merger Agreement (Midwest Holding Inc.)

Required Actions. (a) Purchaser and Seller shall, and shall ~~use~~ cause their respective Affiliates to, use reasonable best efforts to ~~take, or cause to be taken,~~ take all actions, and do, or cause to be done, all things reasonably necessary, proper or advisable under any applicable Laws to consummate and make effective ~~in an expeditious manner the~~ as soon as reasonably practicable each Sale and the other transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, ~~registrations~~ registrations, notifications and notices required to be filed to consummate ~~the~~ such Sale and the other transactions contemplated by this ~~Agreement and~~ 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 (~~“Regulatory Approvals”) (~~which actions shall include furnishing all information required under the HSR Act or any ~~Regulatory Laws~~other applicable Competition Laws or under the FPA or with respect to any other Required Approval) required to be obtained or made by Purchaser or Seller or any of their respective Affiliates in connection with such Sale and the other transactions contemplated by this Agreement, and (iii) the execution and delivery of any additional instruments necessary to consummate such Sale and the other transactions contemplated by this Agreement ~~or that otherwise become applicable~~ and to fully carry out the ~~transactions contemplated by~~ purposes of this Agreement. Additionally, each of Seller and Purchaser shall, and shall cause their respective Affiliates to, take, or cause to be taken, all actions, and do, or cause to be done, all things reasonably necessary, proper or advisable ~~under any applicable Laws~~ to fulfill all conditions ~~precedent to this Agreement as promptly as practicable~~ set forth in Article VII and ~~shall~~ not ~~(and each of the Seller and Purchaser shall cause Purchaser Sponsor, its controlled Affiliates and Representatives not to)~~ take any action after the date of this Agreement that would reasonably be expected to ~~(A)~~ materially ~~prevent,~~ delay ~~or impede~~ the obtaining of, or result in not obtaining, any ~~Regulatory Approvals required~~ 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 ~~made by Purchaser~~ prior to any applicable Closing or ~~Seller~~would reasonably be expected to result in the failure to satisfy, or any ~~of their respective Affiliates~~ delay in ~~connection with the Sale and the other transactions contemplated by this Agreement~~satisfying, ~~or (B) otherwise cause~~ any ~~of the conditions~~ condition set forth in Article IX VII. Without limiting the foregoing, Purchaser shall not, and shall cause its Affiliates not to, acquire or agree to acquire, by merger, consolidation, stock or asset purchase or otherwise, any business or corporation, partnership or other business organization or division thereof, or pursue or engage in any merger, business combination, consolidation, acquisition, sale or similar transaction with any other Person, or agree to, solicit, offer, propose or recommend any of ~~this Agreement~~ the foregoing, to ~~fail~~ the extent it would reasonably be expected to materially delay the obtaining of, or result in not obtaining, any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity necessary to be ~~satisfied~~ obtained at or ~~prevent~~prior to any applicable Closing or would reasonably be expected to result in the failure to satisfy, ~~delay or impede the consummation of the Sale~~ or any ~~other transaction contemplated by this Agreement~~material delay in satisfying, any condition set forth in Article VII. (b) Prior to ~~the~~ each Closing, to the extent not prohibited by applicable Law, Purchaser and Seller shall each keep the other apprised of the status of matters relating to the completion of the ~~Sale~~ Sales and the other transactions contemplated by this Agreement and work cooperatively in connection with obtaining all required ~~Regulatory Approvals~~consents, clearances, expirations or terminations of waiting periods, authorizations, Orders or approvals of, or any exemptions by, any Governmental Entity or other Person. In that regard, prior to ~~the~~ a Closing, subject to the Confidentiality Agreement and Section ~~6.2~~5.2, to the extent not prohibited by applicable Law, each ~~of Seller and Purchaser~~ party shall promptly consult with the other party to this Agreement to provide any necessary information with respect to (and, in the case of correspondence, provide the other party (or their counsel) copies of) all filings made by such party with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement, the applicable Sale and the other transactions contemplated by this Agreement. Subject to the Confidentiality Agreement and Section ~~6.2~~5.2, to the extent not prohibited by applicable Law, each party to this Agreement shall promptly inform the other party to this Agreement, and if in writing, furnish the other party with copies of (or, in the case of oral communications, advise the other party of) any communication from any Governmental Entity ~~or other~~ regarding such ~~Person regarding the~~ Sale or the other transactions contemplated by this Agreement, and permit the other party to review and discuss ~~reasonably~~ in advance, and consider in good faith the views of the other party in connection with, any proposed written or oral ~~communication, correspondence~~ communication or submission with or to any such Governmental ~~Entity or other such Person~~Entity. If any party to this Agreement or any Representative of such party receives a request for additional information or documentary material from any Governmental Entity with respect to ~~the~~ such Sale or the other transactions contemplated by this Agreement, then such party ~~will~~ shall make, or cause to be made, promptly and after consultation with the other party to this Agreement, an appropriate response in compliance with such request. Each of Purchaser ~~or its Representatives, on one hand,~~ and Seller ~~or its Representatives, on the other hand,~~ shall not participate in any meeting with any Governmental Entity in connection with this Agreement or ~~the~~ a Sale, or with any other Person in connection with any Action by a private party relating to the HSR Act or any ~~Regulatory~~ other applicable Competition Laws or the FPA or any other Required Approvals in connection with this Agreement or ~~the~~ a Sale, or make oral submissions at meetings or in telephone or other conversations, unless it consults with ~~the other party reasonably~~ Seller or Purchaser (as applicable) in advance and, to the extent not prohibited by such Governmental Entity, gives ~~the other party~~ Seller or Purchaser (as applicable) the opportunity to attend and participate thereat. Subject to the Confidentiality Agreement and Section 5.2, to the extent not prohibited by applicable Law, each party shall furnish the other party with copies of all correspondence, filings, submissions and communications (and memoranda setting forth the substance thereof) between it and any such Governmental Entity or other such Person with respect to this Agreement and a Sale or the other transactions contemplated by this Agreement, and furnish the other party with such necessary information and reasonable assistance as the other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any such Governmental Entity or other such Person. Purchaser and 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 ~~6.3~~5.3, and the information contained therein, shall be given only to the outside legal counsel and corporate in-house antitrust counsel of the recipient and shall not be disclosed by such outside counsel and corporate in-house antitrust counsel to employees (other than corporate in-house antitrust counsel), officers or directors of the ~~recipient,~~ recipient unless express permission is obtained in advance from the source of the materials (Purchaser or Seller, as the case may be) or its legal counsel; it being understood that materials provided pursuant to this Agreement may be redacted (i) to remove references concerning the valuation of or future plans for the ~~Business~~Business or the Sale Process, (ii) as necessary to comply with contractual ~~obligations~~ arrangements or applicable Law and (iii) as necessary to ~~protect privileged attorney-client communications or attorney work product~~address reasonable privilege concerns. (c) Purchaser and Seller shall file or cause to be ~~filed,~~ filed (i) any required notifications under the HSR Act as promptly as practicable, but in any event no later than ~~twenty-five~~ three (253) Business Days after the date of this Agreement, ~~notifications~~ (ii) an application under Section 203 of the ~~HSR Act, and Purchaser and Seller shall file or cause to be filed,~~ FPA as promptly as practicable, but in any ~~other~~ event no later than five (5) Business Days after the date of this Agreement, and (iii) any filings and/or notifications ~~under~~ required in respect of any other Required Approvals as promptly as practicable, but in any event no later than ten (10) Business Days after the date of this Agreement. In the event that the parties receive a request for additional information or documentary materials after an initial notification pursuant to the HSR Act or any other applicable ~~Regulatory~~ Competition Laws, or a request for additional information from FERC or any other Governmental Entity in connection with any other Required Approvals, the parties shall use their respective reasonable best efforts to comply with such requests, as applicable, as promptly as possible and produce documents, responses to interrogatories, or other information on a rolling basis, and counsel for both parties shall closely cooperate during the entirety of any such investigatory or review process. (d) Purchaser and Seller shall, and shall cause their respective Affiliates to, use ~~its~~ their respective reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to ~~the~~ a Sale and the other transactions contemplated by this Agreement under any ~~Regulatory Laws~~applicable Law. In connection therewith, if any Action is instituted (or threatened to be instituted) challenging ~~the~~ a Sale or the other transactions contemplated by this Agreement as violative of any ~~Regulatory Laws~~applicable Law, Purchaser and Seller shall jointly (to the extent practicable) use ~~its~~ their reasonable best efforts to initiate and/or participate in any ~~Actions~~proceedings, whether judicial or administrative, in order to (i) oppose or defend against any Action by any Governmental Entity to prevent or enjoin the consummation of the Sale or the other transactions contemplated by this Agreement and/or (ii) take such action as necessary to overturn any regulatory Action by any Governmental Entity to block ~~the~~ consummation of ~~the~~ such Sale or the other transactions contemplated by this Agreement, including by defending any such Action brought by any Governmental Entity in order to avoid the entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any Order that makes ~~illegal,~~ illegal or prohibits the consummation ~~of, the~~ of such Sale or the other transactions contemplated by this Agreement resulting from any such Action. (e) Notwithstanding any other provision of this Agreement, Purchaser shall, and shall cause its ~~controlled Affiliates~~Affiliates to, ~~to use reasonable best efforts to~~ take all actions necessary to avoid or eliminate each and every impediment under ~~any Regulatory Laws~~ applicable Law, so as to enable ~~the~~ each Closing to occur as promptly as practicable (and in any event no later than the Outside Date), including (i) proposing, negotiating, ~~agreeing to,~~ committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, licensing, divestiture or disposition of any businesses, ~~product lines~~ assets or ~~assets~~ properties of the Transferred Entities, Purchaser and ~~Purchaser~~their respective Affiliates, and (ii) otherwise taking or committing to take ~~actions, or agreeing to restrictions,~~ actions that after the HSR Closing would limit Purchaser’s, the Transferred Entities’, ’ or ~~Purchaser’s~~ 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 of the Transferred Entities or Purchaser (such actions contemplated in clauses (i) and (ii), “Remedial Actions”); provided, however, and notwithstanding the foregoing or anything to the contrary herein, nothing in this Agreement shall be construed (y) to require Purchaser or its Affiliates (or permit Seller, the Transferred Entities, or any of their respective Affiliates) to offer, propose, take, negotiate, commit to, effect or agree to take any Remedial Action if such action, individually or in the aggregate with all other such actions taken together, would reasonably be expected to have a material adverse effect on the financial condition or results of the operations properties of the Transferred Entities, taken as a whole (it being understood, for purposes of determining whether such Remedial Action would reasonably be expected to have such a material adverse effect, any proceeds received, or expected to be received, from effecting any Remedial Action shall not be taken into consideration) or (z) to require Purchaser ~~to commit to take or agree to take any such Remedial Actions which would bind Purchaser or its Affiliates in respect of any matter if the Closing does not occur~~and their respective Affiliates. No actions taken pursuant to this Section ~~6.3(e~~5.3(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occur, except to the extent caused by Seller’s breach of its covenants hereunder. Notwithstanding anything herein to the contrary, Seller shall not be obligated to take, or agree or commit to take, any action (A) that is not conditioned on the applicable Closing or (B) that relates to the Retained Businesses, and in no event shall Seller or any of its Affiliates be required to be the licensing, selling, divesting, transferring, disposing or encumbering party under any such agreements or transactions described above unless required by the relevant Governmental Entity or applicable Law, and, in any case, Seller and its Affiliates shall have no direct or indirect obligation or Liability in respect of any such agreements or transactions, including any indemnification obligations, for which Seller and its Affiliates are not fully indemnified by Purchaser. (f) Purchaser agrees to provide such security and assurances as to financial capability, resources and creditworthiness as may be reasonably requested by any Governmental Entity whose consent or approval is sought in connection with the transactions contemplated hereby; provided, that Purchaser’s obligations in respect of Seller Guarantees shall be governed by Section 5.9 and not by this Section 5.3(f). Whether or not ~~the~~ a Sale is consummated, Purchaser shall be responsible for all ~~filing fees,~~ fees and payments (including filing fees ~~under the HSR Act~~and legal, ~~due~~ economist and other professional fees) to any Governmental Entity in order to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section ~~6.3~~5.3, other than (i) the fees of and payments to Seller’s and (prior to a Closing applicable to a Transferred Entity) such Transferred Entity’s legal and professional advisors (including accountants, engineers and economists) and (ii) to the extent otherwise constituting Losses arising from any breach of a representation or covenant by Seller hereunder.

Appears in 1 contract

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

Required Actions. (a) ~~Purchaser~~ Upon the terms and ~~Seller shall~~ subject to the conditions set forth in this Agreement, each of the parties hereto agrees to use ~~their respective~~ its commercially reasonable ~~best~~ efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable ~~under any applicable Laws~~ to consummate and make ~~effective~~ effective, in an the most expeditious manner practicable, the ~~Sale and the other transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Sale~~ Acquisition and the other transactions contemplated by this Agreement and (ii) taking all actions reasonably necessary to obtain (and cooperating with each other in obtaining) any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity (“Regulatory Approvals”) (which actions shall include furnishing all information required under any Regulatory Laws) required to be obtained or made by Purchaser or Seller or any of their respective Affiliates in connection with the Sale and the other transactions contemplated by this Agreement or that otherwise become applicable to the transactions contemplated by this Agreement. Additionally, each of Seller and Purchaser shall take, or cause to be taken, all actions, and do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to fulfill all conditions precedent to this Agreement as promptly as practicable and shall not (and each of the Seller and Purchaser shall cause Purchaser Sponsor, its controlled Affiliates and Representatives not to) take any action after the date of this Agreement that would reasonably be expected to (A) materially prevent, delay or impede the obtaining of, or result in not obtaining, any Regulatory Approvals required to be obtained or made by Purchaser or Seller, or any of their respective Affiliates in connection with the Sale and the other transactions contemplated by this Agreement, or (B) otherwise cause any of the conditions set forth in Article IX of this Agreement to fail to be satisfied or prevent, delay or impede the consummation of the Sale or any other transaction contemplated by this AgreementAncillary Agreements. (b) ~~Prior to~~ In connection with and without limiting Section 5.05(a), promptly following the ~~Closing~~execution and delivery by the parties of this Agreement, to the ~~extent not prohibited by applicable Law~~parties shall (i) make all necessary registrations, ~~Purchaser~~ declarations and ~~Seller shall each keep~~ filings with Governmental Entities that are required in connection with the ~~other apprised~~ consummation of the ~~status of matters relating to the completion of the Sale~~ Acquisition and the other transactions contemplated by this Agreement and ~~work cooperatively~~ the Ancillary Agreements and (ii) use their respective commercially reasonable efforts to take all other actions required to be taken in order to obtain all Consents and nonactions required to be obtained from Governmental Entities in connection with ~~obtaining all required Regulatory Approvals. In that regard, prior to~~ the Closing, subject to the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law, each of Seller and Purchaser shall promptly consult with the other party to provide any necessary information with respect to all filings made by such party with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement, the Sale and the other transactions contemplated by this Agreement. Subject to the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law, each party to this Agreement shall promptly inform the other party to this Agreement, and if in writing, furnish the other party with copies of (or, in the case of oral communications, advise the other party of) any communication from any Governmental Entity or other such Person regarding the Sale or the other transactions contemplated by this Agreement, and permit the other party to review and discuss reasonably in advance, and consider in good faith the views consummation of the other party in connection with, any proposed written or oral communication, correspondence or submission with or to any such Governmental Entity or other such Person. If any party to this Agreement or any Representative of such party receives a request for additional information or documentary material from any Governmental Entity with respect to the Sale or the other transactions contemplated by this Agreement, then such party will make, or cause to be made, promptly and after consultation with the other party to this Agreement, an appropriate response in compliance with such request. Purchaser or its Representatives, on one hand, and Seller or its Representatives, on the other hand, shall not participate in any meeting with any Governmental Entity in connection with this Agreement or the Sale, or with any other Person in connection with any Action by a private party relating to any Regulatory Laws in connection with this Agreement or the Sale, or make oral submissions at meetings or in telephone or other conversations, unless it consults with the other party reasonably in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate thereat. Purchaser and Seller may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other party under this Agreement as “outside counsel only.” Such designated materials and any materials provided by Purchaser to Seller or by Seller to Purchaser pursuant to this Section 6.3, and the information contained therein, shall be given only to the outside legal counsel of the recipient and shall not be disclosed by such outside counsel to employees (other than in-house counsel), officers or directors of the recipient, unless express permission is obtained in advance from the source of the materials (Purchaser or Seller, as the case may be) or its legal counsel; it being understood that materials provided pursuant to this Agreement may be redacted (i) to remove references concerning the valuation of the Business, (ii) as necessary to comply with contractual obligations and (iii) as necessary to protect privileged attorney-client communications or attorney work product. (c) Purchaser and Seller shall file or cause to be filed, as promptly as practicable, but in any event no later than twenty-five (25) Business Days after the date of this Agreement, notifications under the HSR Act, and Purchaser and Seller shall file or cause to be filed, as promptly as practicable, any other filings and/or notifications under applicable Regulatory Laws. (d) Purchaser shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Sale Acquisition and the other transactions contemplated by this Agreement ~~under any Regulatory Laws. In connection therewith~~and the Ancillary Agreements and in order to eliminate each other impediment that may be asserted by such Governmental Entities, ~~if any Action is instituted (or threatened~~ in each case with respect to ~~be instituted) challenging~~ the ~~Sale or~~ Acquisition and the other transactions contemplated by this Agreement ~~as violative of any Regulatory Laws~~and the Ancillary Agreements, ~~Purchaser shall use its reasonable best efforts to initiate and/or participate~~ in any Actions, whether judicial or administrative, to (i) oppose or defend against any Action by any Governmental Entity to prevent or enjoin the consummation of the Sale or the other transactions contemplated by this Agreement and/or (ii) take such action as necessary to overturn any regulatory Action by any Governmental Entity to block the consummation of the Sale or the other transactions contemplated by this Agreement, including by defending any such Action brought by any Governmental Entity to avoid the entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any Order that makes illegal, or prohibits the consummation of, the Sale or the other transactions contemplated by this Agreement resulting from any such Action. (e) Notwithstanding any other provision of this Agreement, Purchaser shall, and shall cause its controlled Affiliates, to use reasonable best efforts to take all actions necessary to avoid or eliminate each ~~and every impediment under any Regulatory Laws~~ case so as to enable the Closing to occur as soon as reasonably possible. Notwithstanding anything to the contrary in this Section 5.05, Purchaser shall in no event be required to offer or agree to (A) dispose of, hold separate or limit its operation of any portion of the Business or of its or its subsidiaries’ other businesses, assets or properties, (B) limit its or its subsidiaries’ ability to acquire or hold, or exercise full rights of ownership of, the Acquired Assets or any of its or its subsidiaries’ other businesses, assets or properties, (C) limit its or its subsidiaries’ ability to effectively control the Business or any of its or its subsidiaries’ other businesses, assets or properties. (c) In connection with and without limiting Section 5.05(a) or Section 5.05(b), Seller and Purchaser shall (i) as promptly as practicable, but in no event later than five business days, following the execution and delivery of this Agreement, file or cause to be filed with the Federal Trade Commission and the United States Department of Justice the initial notification and report form under the HSR Act required for the transactions contemplated hereby, (ii) cooperate in responding promptly to any Request for Additional Information and Documentary Material under the HSR Act or other request for further information from any Governmental Authority in respect of such filings and the transactions contemplated by this Agreement, (iii) use their respective commercially reasonable efforts to seek to terminate any waiting periods under the HSR Act as soon as practicable (it being agreed that nothing in this clause (iii) shall require any party to take any action referred to in the last sentence of Section 5.05(b)) and (iv) furnish the other party and the other party’s counsel as promptly as practicable with all such information and reasonable assistance as may be reasonably required in order to effectuate the foregoing actions. Table of Contents (d) In connection with and ~~in any event no later than the Outside Date~~without limiting Section 5.05(a), ~~including (i) proposing~~prior to the Closing and for a period of 12 months thereafter, ~~negotiating~~each party shall, ~~agreeing~~ and shall cause its affiliates to, ~~committing~~ use its commercially reasonable efforts (at its own expense, except as otherwise expressly provided herein) to obtain, and ~~effecting~~to cooperate in obtaining, ~~by consent decree, hold separate Order,~~ all consents from third parties and Governmental Entities necessary or ~~otherwise,~~ appropriate to permit the ~~sale, divestiture or disposition of any businesses, product lines or assets~~ transfer of the ~~Transferred Entities~~Acquired Assets to, and ~~Purchaser, and (ii) otherwise taking or committing to take actions, or agreeing to restrictions, that after~~ the ~~Closing would limit the Transferred Entities’, or Purchaser’s freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets~~ assumption of the ~~Transferred Entities or Purchaser (such actions contemplated in clauses (i) and (ii)~~Assumed Liabilities by, ~~“Remedial Actions”)~~Purchaser; provided, however, ~~and notwithstanding~~ that the ~~foregoing~~ parties shall not be required to pay or commit to pay any amount to (or incur any obligation in favor of) any person from whom any such consent may be required (other than filing or application fees). (e) Notwithstanding anything in this Agreement to the ~~contrary herein~~contrary, nothing in this ~~Agreement~~ Section 5.05 shall be construed (y) to require Purchaser or its Affiliates (or permit Seller, the Transferred Entities, or any of their respective Affiliates) to offer, propose, take, negotiate, commit to, effect or agree to take any Remedial Action if such action, individually or in the aggregate with all other such actions taken together, would reasonably be expected to have a material adverse effect on the financial condition or results of the operations of the Transferred Entities, taken as a whole (it being understood, for purposes of determining whether such Remedial Action would reasonably be expected to have such a material adverse effect, any proceeds received, or expected to be received, from effecting any Remedial Action shall not be taken into consideration) or (z) to require Purchaser to ~~commit~~ (i) consent to ~~take~~ any action or omission by Parent or Seller that would be inconsistent with Section 5.01 absent such consent or (ii) agree to ~~take~~ amend or waive any ~~such Remedial Actions which would bind Purchaser~~ provision of this Agreement or ~~its Affiliates in respect of~~ any matter if the Closing does not occur. No actions taken pursuant to this Section 6.3(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occurAncillary Agreement. (f) ~~Whether~~ Purchaser and Seller shall each keep the other informed in all material respects, and on a reasonably timely basis, of any material communication received by such party from, or ~~not the Sale is consummated~~given by such party or its affiliates to, ~~Purchaser shall be responsible for all filing fees, including filing fees under the HSR Act, due to~~ any Governmental Entity and, to ~~obtain~~ the extent reasonably practicable, to consult with each other in advance of any ~~consent~~meeting or conference with any Governmental Entity regarding the transactions contemplated by this Agreement and the Ancillary Agreements, ~~clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to~~ provided that nothing in this Section ~~6.3~~5.05(f) shall be deemed to require that any party take any action that would result in the waiver of any attorney-client privilege. To the extent reasonably practicable, neither Seller nor Purchaser shall independently participate in a telephone call or meeting with a Governmental Entity regarding the transactions contemplated hereby or any of the matters described in this Section 5.05 without using its commercially reasonable efforts to give the other prior notification of the call or meeting and, unless prohibited by such Governmental Entity or not reasonably practicable, the opportunity to attend and participate.

Appears in 1 contract

Sources: Asset Purchase Agreement (Arch Chemicals Inc)

Required Actions. (a) ~~Purchaser~~ Subject to the terms and ~~Seller~~ conditions specified herein, each of Buyer and ABI shall use ~~their respective~~ reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other party in doing, all things reasonably necessary, proper or advisable ~~under any~~ (subject to applicable ~~Laws~~ Law) to satisfy each condition to the other party’s obligations contained in this Agreement in order to consummate and make effective ~~in an expeditious manner~~ the Sale and the other transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Sale and the other transactions contemplated by this Agreement as promptly as reasonably practicable but in any event by the Long Stop Date; provided that this Agreement shall not in any way modify or expand ABI’s obligations under the ABI Cooperation Agreement, including ABI’s obligations under Section 3 thereof. Without limiting the generality of the foregoing, ABI shall not enter into or otherwise consent to any amendment, modification or waiver of the ABI Cooperation Agreement that would reasonably be expected to be adverse to Buyer or the Acquired Business without the prior written consent of Buyer. (b) Buyer and ABI shall each take (subject (x) in the case of ABI, to the proviso in Section 5.01(a) and (iiy) ~~taking~~ in the case of Buyer, to the proviso in this Section 5.01(b)) all actions ~~reasonably~~ necessary to obtain (all consents, licenses, permits, waivers, approvals, clearances and ~~cooperating with each other in obtaining) any consent, clearance, expiration~~ authorizations or ~~termination of a waiting period, authorization, Order or approval~~ orders of, or ~~any exemption~~ nonactions by, any Governmental ~~Entity~~ Authority (collectively, “~~Regulatory Approvals~~Consents”) that are required to consummate the transactions contemplated by this Agreement as promptly as reasonably practicable but in any event by the Long Stop Date. In furtherance and not in limitation of the foregoing, Buyer and ABI shall each (~~which actions shall include furnishing~~ subject (x) in the case of ABI, to the proviso in Section 5.01(a) and (y) in the case of Buyer, to the proviso in this Section 5.01(b)) (i) provide all necessary notices, reports, registrations, submissions of information, applications and other filings in connection with obtaining any Consents, (ii) prosecute all such filings and Consents with all appropriate diligence, (iii) furnish all information required ~~under any Regulatory Laws) required~~ to be ~~obtained~~ furnished in connection with the Consents of or ~~made by Purchaser or Seller~~ filings with any Governmental Authority, and promptly cooperate with the other party hereto and furnish information in connection with any such requirements imposed upon Buyer, ABI or any of their respective ~~Affiliates~~ Subsidiaries in connection with ~~the Sale~~ this Agreement and the ~~other~~ transactions contemplated hereby, (iv) execute and deliver any additional instruments necessary to consummate the transactions contemplated hereby and to fully carry out the purposes of this Agreement, (v) facilitate obtaining any final order, writ, judgment or decree approving the transactions contemplated by this Agreement in accordance with the terms hereof, (vi) defend any lawsuits or ~~that otherwise become applicable to~~ other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including seeking to have any stay or temporary restraining order entered by ~~this Agreement. Additionally~~any court or other Governmental Authority vacated or reversed so as to enable the parties hereto to consummate and make effective, ~~each of Seller~~ as promptly as practicable, the transactions contemplated hereby in accordance with the terms hereof and ~~Purchaser shall~~ (vii) take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other party hereto in doing, all things necessary, ~~proper~~ in simultaneous coordination, to avoid or ~~advisable under~~ eliminate each and every legal impediment that may be asserted by any ~~applicable Laws~~ Governmental Authority so as to ~~fulfill all conditions precedent~~ enable the parties hereto to consummate and make effective, as promptly as practicable, the transactions contemplated hereby in accordance with the terms hereof, including making any amendments or modifications to this Agreement ~~as promptly as practicable and shall not (and each of~~ to the ~~Seller and Purchaser shall cause Purchaser Sponsor, its controlled Affiliates and Representatives not to) take~~ extent required by any action after the date of this Agreement that would reasonably be expected to (A) materially prevent, delay or impede the obtaining of, or result in not obtaining, any Regulatory Approvals required to be obtained or made by Purchaser or Seller, or any of their respective Affiliates Governmental Authority in connection with obtaining a required Consent; provided that, notwithstanding the ~~Sale and the other transactions contemplated by this Agreement,~~ foregoing or (B) otherwise cause any of the conditions set forth in Article IX of this Agreement to fail to be satisfied or prevent, delay or impede the consummation of the Sale or any other transaction contemplated by this Agreement. (b) Prior anything to the ~~Closing~~contrary contained herein, to the extent ~~not prohibited by applicable Law~~that, ~~Purchaser~~ to obtain the Consent of any Governmental Authority, it is necessary or required to undertake one or more divestitures or other remedies that, individually or in the aggregate, would have a Substantial Adverse Impact on the JV, Buyer shall have the right to consent (or not) in its sole discretion to such divestitures or other remedies. (c) Each of Buyer and ~~Seller shall each keep~~ ▇▇▇ will consult and cooperate with the other ~~apprised of~~ (including in relation to any parallel merger review process resulting from 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 Regulatory Approvals. In that regard, prior to~~ the ~~Closing, subject to the Confidentiality Agreement~~ ABI Transaction) and Section 6.2, to the extent not prohibited by applicable Law, each of Seller and Purchaser shall promptly consult with the other party to provide any necessary information with respect to all filings made by such party with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement, the Sale and the other transactions contemplated by this Agreement. Subject to the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law, each party to this Agreement shall promptly inform the other party to this Agreement, and if in writing, furnish the other party with copies of (~~or, in the case of oral communications, advise the other party of~~i) any communication from any Governmental Entity or other such Person regarding the Sale or the other transactions contemplated by this Agreement, and permit the other party to review and discuss reasonably in advance, and consider in good faith the views of the ~~other~~ other, in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party in connection ~~with~~with proceedings involving any Governmental Authority relating to the Consents, except that materials may be redacted to address reasonable privilege or confidentiality concerns and to prevent the exchange of confidential information prohibited by applicable Law; (ii) promptly advise the other’s counsel of any ~~proposed~~ written or material oral ~~communication, correspondence~~ communication to or submission with or to any such Governmental Entity or other such Person. If any party to this Agreement or any Representative of such party receives a request for additional information or documentary material from any Governmental ~~Entity~~ Authority with respect to the Sale or the other transactions contemplated by this Agreement, then such party will make, or cause to be made, promptly and after consultation with the other party to this Agreement, an appropriate response in compliance with such request. Purchaser or its Representatives, on one hand, and Seller or its Representatives, on the other hand, shall Consents; (iii) not participate in any meeting or discussion with any Governmental ~~Entity~~ Authority in ~~connection~~ respect of any Consent without first consulting with ~~this Agreement or~~ the Sale, or with any other Person in connection with any Action by a private party relating to any Regulatory Laws in connection with this Agreement or the Sale, or make oral submissions at meetings or in telephone or other conversationsother’s counsel and, unless ~~it consults with the other party reasonably in advance and, to the extent not~~ prohibited by such Governmental ~~Entity~~Authority, ~~gives~~ giving the ~~other party~~ other’s counsel the opportunity to ~~attend~~ attend; and ~~participate thereat. Purchaser~~ (iv) promptly furnish the other’s counsel with copies of all correspondence, filings, and ~~Seller may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other~~ written communications between such party ~~under this Agreement as “outside counsel only.” Such designated materials~~ and any materials provided by Purchaser to Seller or by Seller to Purchaser pursuant to this Section 6.3, and the information contained therein, shall be given only to the outside legal counsel of the recipient and shall not be disclosed by such outside counsel to employees (other than in-house counsel), officers or directors of the recipient, unless express permission is obtained in advance from the source of the materials (Purchaser or Seller, as the case may be) or its legal counsel; it being understood that materials provided pursuant to this Agreement may be redacted (i) to remove references concerning the valuation of the Business, (ii) as necessary to comply with contractual obligations and (iii) as necessary to protect privileged attorney-client communications or attorney work product. (c) Purchaser and Seller shall file or cause to be filed, as promptly as practicable, but in any event no later than twenty-five (25) Business Days after the date of this Agreement, notifications under the HSR Act, and Purchaser and Seller shall file or cause to be filed, as promptly as practicable, any other filings and/or notifications under applicable Regulatory Laws. (d) Purchaser shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental ~~Entity~~ Authority with respect to the ~~Sale~~ Consents, except that materials may be redacted to address reasonable privilege or confidentiality concerns and to prevent the exchange of confidential information prohibited by applicable Law. To the extent permitted by applicable Law, Buyer and ABI shall coordinate and cooperate fully with each other in exchanging such information and providing such assistance as the other ~~transactions contemplated by this Agreement under any Regulatory Laws. In~~ party may reasonably request in connection ~~therewith, if any Action is instituted (or threatened to be instituted) challenging~~ with the Sale or the other transactions contemplated by this Agreement as violative of any Regulatory Laws, Purchaser shall use its reasonable best efforts to initiate and/or participate in any Actions, whether judicial or administrative, to (i) oppose or defend against any Action by any Governmental Entity to prevent or enjoin the consummation of the Sale or the other transactions contemplated by this Agreement and/or (ii) take such action as necessary to overturn any regulatory Action by any Governmental Entity to block the consummation of the Sale or the other transactions contemplated by this Agreement, including by defending any such Action brought by any Governmental Entity to avoid the entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any Order that makes illegal, or prohibits the consummation of, the Sale or the other transactions contemplated by this Agreement resulting from any such Actionforegoing. (e) Notwithstanding any other provision of this Agreement, Purchaser shall, and shall cause its controlled Affiliates, to use reasonable best efforts to take all actions 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, agreeing to, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of the Transferred Entities, and Purchaser, and (ii) otherwise taking or committing to take actions, or agreeing to restrictions, that after the Closing would limit the Transferred Entities’, or Purchaser’s freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred Entities or Purchaser (such actions contemplated in clauses (i) and (ii), “Remedial Actions”); provided, however, and notwithstanding the foregoing or anything to the contrary herein, nothing in this Agreement shall be construed (y) to require Purchaser or its Affiliates (or permit Seller, the Transferred Entities, or any of their respective Affiliates) to offer, propose, take, negotiate, commit to, effect or agree to take any Remedial Action if such action, individually or in the aggregate with all other such actions taken together, would reasonably be expected to have a material adverse effect on the financial condition or results of the operations of the Transferred Entities, taken as a whole (it being understood, for purposes of determining whether such Remedial Action would reasonably be expected to have such a material adverse effect, any proceeds received, or expected to be received, from effecting any Remedial Action shall not be taken into consideration) or (z) to require Purchaser to commit to take or agree to take any such Remedial Actions which would bind Purchaser or its Affiliates in respect of any matter if the Closing does not occur. No actions taken pursuant to this Section 6.3(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occur. (f) Whether or not the Sale is consummated, Purchaser shall be responsible for all filing fees, including filing fees under the HSR Act, due to any Governmental Entity to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section 6.3.

Appears in 1 contract

Sources: Purchase Agreement

Required Actions. (a) ~~Purchaser~~ The Company and ~~Seller shall use their respective reasonable best efforts to take~~Parent shall, ~~or cause to be taken~~as promptly as possible, all actions, and do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to consummate and make effective in an expeditious manner the Sale and the other transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Sale and the other transactions contemplated by this Agreement and (ii) taking all actions reasonably necessary to obtain (and cooperating with each other in obtaining) any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity (“Regulatory Approvals”) (which actions shall include furnishing all information required under any Regulatory Laws) required to be obtained or made by Purchaser or Seller or any of their respective Affiliates in connection with the Sale and the other transactions contemplated by this Agreement or that otherwise become applicable to the transactions contemplated by this Agreement. Additionally, each of Seller and Purchaser shall take, or cause to be taken, all actions, and do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to fulfill all conditions precedent to this Agreement as promptly as practicable and shall not (and each of the Seller and Purchaser shall cause Purchaser Sponsor, its controlled Affiliates and Representatives not to) take any action after the date of this Agreement that would reasonably be expected to (A) materially prevent, delay or impede the obtaining of, or result in not obtaining, any Regulatory Approvals required to be obtained or made by Purchaser or Seller, or any of their respective Affiliates in connection with the Sale and the other transactions contemplated by this Agreement, or (B) otherwise cause any of the conditions set forth in Article IX of this Agreement to fail to be satisfied or prevent, delay or impede the consummation of the Sale or any other transaction contemplated by this Agreement. (b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and Seller shall each keep the other apprised of the status of matters relating to the completion of the Sale and the other transactions contemplated by this Agreement and work cooperatively in connection with obtaining all required Regulatory Approvals. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law, each of Seller and Purchaser shall promptly consult with the other party to provide any necessary information with respect to all filings made by such party with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement, the Sale and the other transactions contemplated by this Agreement. Subject to the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law, each party to this Agreement shall promptly inform the other party to this Agreement, and if in writing, furnish the other party with copies of (or, in the case of oral communications, advise the other party of) any communication from any Governmental Entity or other such Person regarding the Sale or the other transactions contemplated by this Agreement, and permit the other party to review and discuss reasonably in advance, and consider in good faith the views of the other party in connection with, any proposed written or oral communication, correspondence or submission with or to any such Governmental Entity or other such Person. If any party to this Agreement or any Representative of such party receives a request for additional information or documentary material from any Governmental Entity with respect to the Sale or the other transactions contemplated by this Agreement, then such party will make, or cause to be made, ~~promptly~~ all filings and ~~after consultation with~~ submissions required under any applicable Law (provided, that neither the ~~other party to this Agreement, an appropriate response in compliance with such request. Purchaser or its Representatives~~Company, on the one hand, ~~and Seller or its Representatives~~nor Parent, on the other hand, shall ~~not participate~~ be in ~~any meeting with any~~ breach of the foregoing covenant if such party’s failure to timely file is a result of the other party’s failure to provide the requisite materials and signatures or otherwise take the requisite steps necessary for such filing), and (ii) to thereafter use commercially reasonable efforts to obtain, or cause to be obtained, all consents, authorizations, orders and approvals from all Governmental ~~Entity~~ Authorities whether federal, state, local, or foreign, which may be required in connection with ~~this Agreement or~~ the ~~Sale, or with any other Person in connection with any Action by a private party relating to any Regulatory Laws in connection with this Agreement or~~ consummation of the Sale, or make oral submissions at meetings or in telephone or other conversations, unless it consults with the other party reasonably in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate thereat. Purchaser and Seller may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other party transactions contemplated under this Agreement ~~as “outside counsel only~~and the other Transaction Documents. The Company and its Subsidiaries and Representatives shall cooperate with Parent and its Affiliates in promptly seeking to obtain all such consents, authorizations, orders and approvals. The parties hereto shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders and approvals.~~” Such designated materials~~ (b) The Company and ~~any materials provided by Purchaser~~ Parent shall use commercially reasonable efforts to ~~Seller or by Seller to Purchaser pursuant to this Section 6.3~~give all notices to, and ~~the information contained therein~~obtain all consents from, ~~shall be given only to the outside legal counsel~~ all third parties that are expressly set forth in Section 5.04 of the recipient and shall not be disclosed by such outside counsel to employees (other than in-house counsel), officers or directors of the recipient, unless express permission is obtained in advance from the source of the materials (Purchaser or Seller, as the case may be) or its legal counsel; it being understood that materials provided pursuant to this Agreement may be redacted (i) to remove references concerning the valuation of the Business, (ii) as necessary to comply with contractual obligations and (iii) as necessary to protect privileged attorney-client communications or attorney work productDisclosure Schedules. (c) ~~Purchaser~~ Without limiting the generality of the parties’ undertakings pursuant to subsections (a) and ~~Seller~~ (b) above, each of the parties hereto shall file or cause to be filed, as promptly as practicable, but in any event no later than twenty-five (25) Business Days after the date of this Agreement, notifications under the HSR Act, and Purchaser and Seller shall file or cause to be filed, as promptly as practicable, any other filings and/or notifications under applicable Regulatory Laws.use commercially reasonable efforts to: (di) ~~Purchaser shall use its reasonable best efforts~~ respond promptly to ~~resolve such objections, if any, as may be asserted~~ any inquiries and furnish any additional information reasonably requested by any Governmental ~~Entity~~ Authority regarding antitrust or other matters with respect to the ~~Sale and the other~~ transactions contemplated by this Agreement ~~under~~ or any ~~Regulatory Laws. In connection therewith, if~~ Transaction Document; (ii) resolve any ~~Action is instituted (or threatened to~~ objections that may be ~~instituted) challenging~~ asserted by the ~~Sale~~ applicable Governmental Authority as promptly as practicable and avoid the imposition of any order or the ~~other~~ taking of any action that would restrain, alter or enjoin the transactions contemplated by this Agreement ~~as violative of~~ or any ~~Regulatory Laws, Purchaser shall use its reasonable best efforts to initiate and/or participate~~ Transaction Document; and (iii) in ~~any Actions, whether judicial or administrative, to (i) oppose or defend against any Action by~~ the event any Governmental ~~Entity to prevent or enjoin~~ Order adversely affecting the ~~consummation~~ ability of the ~~Sale or~~ parties to consummate the ~~other~~ transactions contemplated by this Agreement and/or (ii) take such action as necessary to overturn any regulatory Action by any Governmental Entity to block the consummation of the Sale or the other transactions contemplated by this Agreement, including by defending any such Action brought by any Governmental Entity to avoid the entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any Order that makes illegal, or prohibits the consummation of, the Sale or the other transactions contemplated by this Agreement resulting from any such Action. (e) Notwithstanding any other provision of this Agreement, Purchaser shall, and shall cause its controlled Affiliates, to use reasonable best efforts to take all 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, agreeing to, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of the Transferred Entities, and Purchaser, and (ii) otherwise taking or committing to take actions, or agreeing to restrictions, that after the Closing would limit the Transferred Entities’, or Purchaser’s freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred Entities or Purchaser (such actions contemplated in clauses (i) and (ii), “Remedial Actions”); provided, however, and notwithstanding the foregoing or anything to the contrary herein, nothing in this Agreement shall be construed (y) to require Purchaser or its Affiliates (or permit Seller, the Transferred Entities, or any ~~of their respective Affiliates) to offer~~Transaction Document has been issued, propose, take, negotiate, commit to, effect or agree to take any Remedial Action if such action, individually or in the aggregate with all other such actions taken together, would reasonably be expected to have a material adverse effect on the financial condition or results of the operations of the Transferred Entities, taken as a whole (it being understood, for purposes of determining whether such Remedial Action would reasonably be expected to have such ~~a material adverse effect, any proceeds received,~~ Governmental Order vacated or expected to be received, from effecting any Remedial Action shall not be taken into consideration) or (z) to require Purchaser to commit to take or agree to take any such Remedial Actions which would bind Purchaser or its Affiliates in respect of any matter if the Closing does not occur. No actions taken pursuant to this Section 6.3(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occurlifted. (f) Whether or not the Sale is consummated, Purchaser shall be responsible for all filing fees, including filing fees under the HSR Act, due to any Governmental Entity to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section 6.3.

Appears in 1 contract

Sources: Merger Agreement (OncoCyte Corp)

Required Actions. (a) ~~Purchaser~~ During the period between the date hereof and the earlier to occur of (x) Closing and (y) termination of this Agreement (the “Interim Period”), Purchaser, Seller and Parent shall use ~~their respective~~ reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to consummate and make effective in an expeditious manner the Sale and the other transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Sale and the other transactions contemplated by this Agreement and (ii) taking ~~all~~ such other actions ~~reasonably~~ necessary to obtain (and cooperating with each other in obtaining) any notice, consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity (“Regulatory Approvals”) (which actions shall include furnishing all information required under any Regulatory Laws) required to be obtained or made by Purchaser or Seller or any of their respective Affiliates in connection with the Sale and the other transactions contemplated by this Agreement or ~~that~~ otherwise become applicable to the transactions contemplated by this Agreement. Additionally, each of Seller and Purchaser shall take, or cause to be taken, all actions, and do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to fulfill all conditions precedent to this Agreement as promptly as practicable and shall not (and each of the Seller and Purchaser shall cause Purchaser Sponsor, its controlled Affiliates and Representatives not to) take any action after the date of this Agreement that would reasonably be expected to (A) materially prevent, delay or impede the obtaining of, or result in not obtaining, any Regulatory Approvals required to be obtained or made by Purchaser or Seller, or any of their respective Affiliates in connection with the Sale and the other transactions contemplated by this Agreement, or (B) otherwise cause any of the conditions set forth in Article IX of this Agreement to fail to be satisfied or prevent, delay or impede the consummation of the Sale or any other transaction contemplated by this Agreement. (b) ~~Prior to~~ During the ~~Closing~~Interim Period, to the extent not prohibited by applicable Law, ~~Purchaser~~ Purchaser, Seller and ~~Seller~~ Parent shall each keep the other apprised of the status of matters relating to the completion of the Sale and the other transactions contemplated by this Agreement and work cooperatively in connection with obtaining all required Regulatory Approvals. In that regard, ~~prior to~~ during the ~~Closing~~Interim Period, subject to the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law, each of Seller and Purchaser shall promptly consult with the other party to provide any necessary information with respect to all filings made by such party with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement, the Sale and the other transactions contemplated by this Agreement. Subject to the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law, during the Interim Period, each party to this Agreement shall as promptly as practicable inform the other party to this Agreement, and if in ~~writing~~writing and to the extent reasonably practicable (taking into consideration any timing requirements or filing deadlines), furnish the other party with copies of (or, in the case of oral communications, advise the other party of) any material communication from any Governmental Entity in connection with this Agreement or the Sale, or with any other ~~such~~ Person ~~regarding~~ in connection with any Action by a private party relating to any Regulatory Laws in connection with this Agreement or the Sale or the other transactions contemplated by this Agreement, and permit the other party to review and discuss reasonably in advance, and consider in good faith the views of the other party in connection with, any proposed written or oral communication, correspondence or submission with or to any such Governmental Entity or other such Person. If any party to this Agreement or any Representative of such party receives a request for additional information or documentary material from any Governmental Entity with respect to the Sale or the other transactions contemplated by this Agreement, then such party will make, or cause to be made, promptly and after consultation with the other party to this Agreement, an appropriate response in compliance with such request. Purchaser or its Representatives, on one hand, and Seller or its Representatives, on the other hand, shall not participate in any meeting with any Governmental Entity in connection with this Agreement or the Sale, or with any other Person in connection with any Action by a private party relating to any Regulatory Laws in connection with this Agreement or the Sale, or make oral submissions at meetings or in telephone or other conversations, unless it consults with the other party reasonably in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate thereat. Purchaser and Seller may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other party under this Agreement as “outside counsel only.” Such designated materials and any materials provided by Purchaser to Seller or by Seller to Purchaser pursuant to this Section 6.3, and the information contained therein, shall be given only to the outside legal counsel of the recipient and shall not be disclosed by such outside counsel to employees (other than in-house counsel), officers or directors of the recipient, unless express permission is obtained in advance from the source of the materials (Purchaser or Seller, as the case may be) or its legal counsel; it being understood that materials provided pursuant to this Agreement may be redacted (i) to remove references concerning the valuation of the Business, (ii) as necessary to comply with contractual obligations and (iii) as necessary to protect privileged attorney-client communications or attorney work product. (c) Purchaser and Seller shall file or cause to be filed, as promptly as practicable, but in any event no later than twenty-five (25) Business Days after the date of this Agreement, notifications under the HSR Act, and Purchaser and Seller shall file or cause to be filed, as promptly as practicable, any other filings and/or notifications under applicable Regulatory Laws. (d) Purchaser shall use its 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 any Regulatory Laws. In connection therewith, if any Action is instituted (or threatened to be instituted) challenging the Sale or the other transactions contemplated by this Agreement as violative of any Regulatory Laws, Purchaser shall use its reasonable best efforts to initiate and/or participate in any Actions, whether judicial or administrative, to (i) oppose or defend against any Action by any Governmental Entity to prevent or enjoin the consummation of the Sale or the other transactions contemplated by this Agreement and/or (ii) take such action as necessary to overturn any regulatory Action by any Governmental Entity to block the consummation of the Sale or the other transactions contemplated by this Agreement, including by defending any such Action brought by any Governmental Entity to avoid the entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any Order that makes illegal, or prohibits the consummation of, the Sale or the other transactions contemplated by this Agreement resulting from any such Action. (e) Notwithstanding any other provision of this Agreement, Purchaser shall, and shall cause its controlled Affiliates, to use reasonable best efforts to take all 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, agreeing to, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of the Transferred Entities, and Purchaser, and (ii) otherwise taking or committing to take actions, or agreeing to restrictions, that after the Closing would limit the Transferred Entities’, or Purchaser’s freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred Entities or Purchaser (such actions contemplated in clauses (i) and (ii), “Remedial Actions”); provided, however, and notwithstanding the foregoing or anything to the contrary herein, nothing in this Agreement shall be construed (y) to require Purchaser or its Affiliates (or permit Seller, the Transferred Entities, or any of their respective Affiliates) to offer, propose, take, negotiate, commit to, effect or agree to take any Remedial Action if such action, individually or in the aggregate with all other such actions taken together, would reasonably be expected to have a material adverse effect on the financial condition or results of the operations of the Transferred Entities, taken as a whole (it being understood, for purposes of determining whether such Remedial Action would reasonably be expected to have such a material adverse effect, any proceeds received, or expected to be received, from effecting any Remedial Action shall not be taken into consideration) or (z) to require Purchaser to commit to take or agree to take any such Remedial Actions which would bind Purchaser or its Affiliates in respect of any matter if the Closing does not occur. No actions taken pursuant to this Section 6.3(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occur. (f) Whether or not the Sale is consummated, Purchaser shall be responsible for all filing fees, including filing fees under the HSR Act, due to any Governmental Entity to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section 6.3.55

Appears in 1 contract

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

Required Actions. (a) ~~Purchaser~~ During the period between the date hereof and the earlier to occur of (x) Closing and (y) termination of this Agreement (the “Interim Period”), Purchaser, Seller and Parent shall use ~~their respective~~ reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to consummate and make effective in an expeditious manner the Sale and the other transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Sale and the other transactions contemplated by this Agreement and (ii) taking ~~all~~ such other actions ~~reasonably~~ necessary to obtain (and cooperating with each other in obtaining) any notice, consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity (“Regulatory Approvals”) (which actions shall include furnishing all information required under any Regulatory Laws) required to be obtained or made by Purchaser or Seller or any of their respective Affiliates in connection with the Sale and the other transactions contemplated by this Agreement or ~~that~~ otherwise become applicable to the transactions contemplated by this Agreement. Additionally, each of Seller and Purchaser shall take, or cause to be taken, all actions, and do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to fulfill all conditions precedent to this Agreement as promptly as practicable and shall not (and each of the Seller and Purchaser shall cause Purchaser Sponsor, its controlled Affiliates and Representatives not to) take any action after the date of this Agreement that would reasonably be expected to (A) materially prevent, delay or impede the obtaining of, or result in not obtaining, any Regulatory Approvals required to be obtained or made by Purchaser or Seller, or any of their respective Affiliates in connection with the Sale and the other transactions contemplated by this Agreement, or (B) otherwise cause any of the conditions set forth in Article IX of this Agreement to fail to be satisfied or prevent, delay or impede the consummation of the Sale or any other transaction contemplated by this Agreement. (b) ~~Prior to~~ During the ~~Closing~~Interim Period, to the extent not prohibited by applicable Law, ~~Purchaser~~ Purchaser, Seller and ~~Seller~~ Parent shall each keep the other apprised of the status of matters relating to the completion of the Sale and the other transactions contemplated by this Agreement and work cooperatively in connection with obtaining all required Regulatory Approvals. In that regard, ~~prior to~~ during the ~~Closing~~Interim Period, subject to the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law, each of Seller and Purchaser shall promptly consult with the other party to provide any necessary information with respect to all filings made by such party with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement, the Sale and the other transactions contemplated by this Agreement. Subject to the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law, during the Interim Period, each party to this Agreement shall as promptly as practicable inform the other party to this Agreement, and if in ~~writing~~writing and to the extent reasonably practicable (taking into consideration any timing requirements or filing deadlines), furnish the other party with copies of (or, in the case of oral communications, advise the other party of) any material communication from any Governmental Entity in connection with this Agreement or the Sale, or with any other ~~such~~ Person ~~regarding~~ in connection with any Action by a private party relating to any Regulatory Laws in connection with this Agreement or the Sale or the other transactions contemplated by this Agreement, and permit the other party to review and discuss reasonably in advance, and consider in good faith the views of the other party in connection with, any proposed written or oral communication, correspondence or submission with or to any such Governmental Entity or other such Person. If During the Interim Period, if any party to this Agreement or any Representative of such party receives a request for additional information or documentary material from any Governmental Entity with respect to the Sale or the other transactions contemplated by this Agreement, then such party will make, or cause to be made, as promptly ~~and~~ as reasonably practicable and, if reasonably practicable, after consultation with the other party to this Agreement, an appropriate response in compliance with such request. During the Interim Period, Purchaser or its Representatives, on one hand, and Seller or its Representatives, on the other hand, shall not participate in any meeting (including telephone conversation, video conference, or other discussion) with any Governmental Entity in connection with obtaining any Regulatory Approvals in connection with this Agreement or the Sale, ~~or with any other Person in connection with any Action~~ unless, to the extent not prohibited by ~~a private party relating to any Regulatory Laws in connection with this Agreement or~~ the ~~Sale~~applicable Governmental Entity, ~~or make oral submissions at meetings or in telephone or other conversations, unless~~ it consults with the other party reasonably in advance and, 50 to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate thereat. Purchaser and Seller may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other party under this Agreement as “outside counsel/in-house counsel only.” Such designated materials and any materials provided by Purchaser to Seller or by Seller to Purchaser pursuant to this Section 6.3, and the information contained therein, shall be given only to the outside legal counsel and in-house counsel of the recipient and shall not be disclosed by such outside counsel and in-house counsel to employees (other than in-house counsel), officers or directors of the recipient, unless express permission is obtained in advance from the source of the materials (Purchaser or Seller, as the case may be) or its legal counsel; it being understood that materials provided pursuant to this Agreement may be redacted (i) to remove references concerning the valuation of the Business, (ii) as necessary to comply with contractual obligations and (iii) as necessary to protect privileged attorney-client communications or attorney work product. (c) ~~Purchaser and Seller shall file or cause to be filed~~During the Interim Period, as promptly as practicable, but in any event no later than twenty-five (25) Business Days after the date of this Agreement, notifications under the HSR Act, and Purchaser and Seller shall file or cause to be filed, as promptly as practicable, any other filings and/or notifications under applicable Regulatory Laws. (d) Purchaser shall use its 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 any Regulatory Laws. In connection therewith, if any Action is instituted (or threatened to be instituted) challenging the Sale or the other transactions contemplated by this Agreement as violative of any Regulatory Laws, Purchaser shall use its reasonable best efforts to initiate and/or participate in any Actions, whether judicial or administrative, to (i) oppose or defend against any Action by any Governmental Entity to prevent or enjoin the consummation of the Sale or the other transactions contemplated by this Agreement and/or (ii) take such action as necessary to overturn any regulatory Action by any Governmental Entity to block the consummation of the Sale or the other transactions contemplated by this Agreement, including by defending any such Action brought by any Governmental Entity to avoid the entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any Order that makes illegal, or prohibits the consummation of, the Sale or the other transactions contemplated by this Agreement resulting from any such Action. (e) Notwithstanding any other provision of this Agreement, Purchaser shall, and shall cause its controlled Affiliates, to use reasonable best efforts to take all 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, agreeing to, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of the Transferred Entities, and Purchaser, and (ii) otherwise taking or committing to take actions, or agreeing to restrictions, that after the Closing would limit the Transferred Entities’, or Purchaser’s freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred Entities or Purchaser (such actions contemplated in clauses (i) and (ii), “Remedial Actions”); provided, however, and notwithstanding the foregoing or anything to the contrary herein, nothing in this Agreement shall be construed (y) to require Purchaser or its Affiliates (or permit Seller, the Transferred Entities, or any of their respective Affiliates) to offer, propose, take, negotiate, commit to, effect or agree to take any Remedial Action if such action, individually or in the aggregate with all other such actions taken together, would reasonably be expected to have a material adverse effect on the financial condition or results of the operations of the Transferred Entities, taken as a whole (it being understood, for purposes of determining whether such Remedial Action would reasonably be expected to have such a material adverse effect, any proceeds received, or expected to be received, from effecting any Remedial Action shall not be taken into consideration) or (z) to require Purchaser to commit to take or agree to take any such Remedial Actions which would bind Purchaser or its Affiliates in respect of any matter if the Closing does not occur. No actions taken pursuant to this Section 6.3(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occur. (f) Whether or not the Sale is consummated, Purchaser shall be responsible for all filing fees, including filing fees under the HSR Act, due to any Governmental Entity to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section 6.3.

Appears in 1 contract

Sources: Equity and Asset Purchase Agreement (New Fortress Energy Inc.)

Required Actions. (a) ~~Purchaser~~ Subject to the terms and ~~Seller~~ conditions set forth in this Agreement, Parent, Acquirer and the Company shall, and shall cause their respective Affiliates to, use their respective reasonable best efforts to take, or cause to be taken, all ~~actions,~~ actions and do, or cause to be done, all things reasonably necessary, proper or advisable under any ~~applicable~~ Applicable Laws to consummate and make effective in an the most expeditious manner possible the ~~Sale and the other transactions contemplated by this Agreement~~Transactions, including (i) the preparation and filing of all forms, ~~registrations~~ registrations, notifications and notices required to be filed to consummate the ~~Sale and the other transactions contemplated by this Agreement and~~ Transactions, (ii) taking all actions reasonably necessary to obtain (and cooperating with each other in obtaining) any consent, clearance, expiration or termination of a waiting period, authorization, ~~Order~~ Order, non-objection or approval of, or any exemption by, any Governmental ~~Entity (“Regulatory Approvals”) (which actions shall include furnishing all information~~ Authority required ~~under any Regulatory Laws) required~~ or advisable to be obtained or made by ~~Purchaser~~ Acquirer or ~~Seller~~ the Company or any of their respective Affiliates in connection with the ~~Sale~~ Transactions (including, for the avoidance of doubt, the Required Approvals), and (iii) the ~~other transactions contemplated by this Agreement or that otherwise become applicable~~ execution and delivery of any additional instruments necessary to consummate the ~~transactions contemplated by~~ Transactions and to fully carry out the purposes of this Agreement. ~~Additionally~~Each of Parent and the Company shall, ~~each of Seller~~ and ~~Purchaser~~ shall cause their respective Affiliates to, use their respective reasonable best efforts to take, or cause to be taken, all ~~actions,~~ actions and do, or cause to be done, all things reasonably necessary, proper or advisable ~~under any applicable Laws~~ to fulfill all conditions ~~precedent to this Agreement as promptly as practicable~~ set forth in Article 9. Each of Parent, Acquirer and the Company shall not, and shall ~~not (and each of the Seller and Purchaser shall~~ cause ~~Purchaser Sponsor,~~ its ~~controlled~~ respective Affiliates ~~and Representatives~~ not to) , take any action after the date of this Agreement that would reasonably be expected to ~~(A)~~ materially ~~prevent,~~ delay ~~or impede~~ the obtaining of, or result in not obtaining, any ~~Regulatory Approvals required~~ consent, clearance, expiration or termination of a waiting period, authorization, Order, non-objection or approval of, or any exemption by, any Governmental Authority necessary to be obtained at or ~~made by Purchaser~~ prior to the Closing or ~~Seller~~would reasonably be expected to result in the failure to satisfy, or any ~~of their respective Affiliates~~ material delay in ~~connection with the Sale and the other transactions contemplated by this Agreement~~satisfying, ~~or (B) otherwise cause~~ any ~~of the conditions~~ condition set forth in Article IX 9, including acquiring or agreeing to acquire, by merger, consolidation, stock or asset purchase or otherwise, any business or corporation, partnership or other business organization or division thereof, or pursue or engage in any merger, business combination, consolidation, acquisition, sale or similar transaction with any other Person, or agreeing to, soliciting, offering, proposing or recommending any of ~~this Agreement~~ the foregoing, to ~~fail~~ the extent it would reasonably be expected to materially delay the obtaining of, or result in not obtaining, any consent, clearance, expiration or termination of a waiting period, authorization, Order, non-objection or approval of, or any exemption by, any Governmental Authority necessary to be ~~satisfied~~ obtained at or ~~prevent~~prior to the Closing or would reasonably be expected to result in the failure to satisfy, ~~delay or impede the consummation of the Sale~~ or any ~~other transaction contemplated by this Agreement~~material delay in satisfying, any condition set forth in Article 9. (b) Prior to the Closing, to the extent not prohibited by ~~applicable~~ Applicable Law, ~~Purchaser~~ Acquirer and ~~Seller~~ the Company shall each keep the other apprised of the status of matters relating to the completion of the ~~Sale~~ Transactions, including the expiration or termination of the waiting period applicable to the Transactions under any applicable Antitrust Laws or any applicable Foreign Investment Laws and the receipt of any other ~~transactions contemplated by this Agreement~~ applicable Required Approval and CFIUS Approval, and work cooperatively in connection with obtaining all required ~~Regulatory Approvals~~or advisable consents, clearances, expirations or terminations of waiting periods, authorizations, Orders, non-objections or approvals of, or any exemptions by, any Governmental Authority. In that regard, ~~prior to the Closing, subject to the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law,~~ each of ~~Seller~~ Acquirer and ~~Purchaser~~ the Company shall (i) promptly ~~consult with~~ provide any information and assistance as the other ~~party to provide any necessary information~~ Party may reasonably request with respect to all notices, submissions or filings made by or on behalf of such ~~party~~ Party or any of its Affiliates with any Governmental ~~Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity~~ Authority in connection with this ~~Agreement, the Sale~~ Agreement and the ~~other transactions contemplated by this Agreement. Subject to the Confidentiality Agreement~~ Transactions, and ~~Section 6.2, to the extent not prohibited by applicable Law, each party to this Agreement shall~~ (ii) promptly inform the other ~~party to this Agreement~~Parties, and if in writing, furnish the other ~~party~~ Party with copies of (or, in the case of oral communications, advise the other ~~party~~ Party of) any material communication from or to any Governmental ~~Entity or other such Person~~ Authority regarding the ~~Sale or the other transactions contemplated by this Agreement~~Transactions, and permit the other party to review and discuss ~~reasonably~~ in advance, and consider in good faith the views of the other ~~party~~ Party in connection with, any proposed material written or oral ~~communication, correspondence~~ communication or submission with or to any such Governmental ~~Entity~~ Authority; provided that no Party shall be obligated to provide such information if such Party determines, in its reasonable judgment, that doing so may violate any applicable Law or ~~other such Person~~jeopardize protection of attorney client privileges. If any party to this Agreement or any Representative of such party receives a request for additional information or documentary material from any Governmental Entity with respect to the Sale or the other transactions contemplated by this Agreement, then such party will make, or cause to be made, promptly and after consultation with the other party to this Agreement, an appropriate response in compliance with such request. Purchaser or its Representatives, on one hand, and Seller or its Representatives, on the other hand, No Party shall ~~not~~ participate in any meeting with any Governmental ~~Entity~~ Authority in connection with this Agreement or the ~~Sale~~Transactions, or with any other Person in connection with any ~~Action~~ Proceeding by a private ~~party~~ Party relating to any ~~Regulatory~~ Antitrust Laws, Foreign Investment Laws or Required Approvals in connection with this Agreement or the ~~Sale~~Transactions, or make oral submissions at meetings or in telephone or other conversations, unless it consults with the other ~~party reasonably~~ Party in advance and, to the extent not prohibited by such Governmental ~~Entity~~Authority, gives the other ~~party~~ Party the opportunity to attend and participate thereat. ~~Purchaser~~ Notwithstanding the foregoing, Acquirer and ~~Seller~~ the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive or otherwise commercially confidential material provided to the other ~~party~~ Party under this Agreement as “outside counsel only.” Such designated materials ~~and any materials~~ provided by ~~Purchaser~~ Acquirer to ~~Seller~~ the Company or by ~~Seller~~ the Company to ~~Purchaser~~ Acquirer pursuant to this Section ~~6.3~~8.01, and the information contained therein, shall be given only to the outside legal counsel of the recipient and shall not be disclosed by such outside counsel to ~~employees (other than in-house counsel)~~employees, officers or directors of the ~~recipient,~~ recipient unless express permission is obtained in advance from the source of the materials (~~Purchaser~~ Acquirer or ~~Seller~~the Company, as the case may be~~) or its legal counsel~~); it being understood that materials provided pursuant to this Agreement may be redacted (i) to remove references concerning the valuation of the ~~Business~~Company, (ii) as necessary to comply with ~~contractual obligations and~~ Applicable Law, (iii) as necessary to ~~protect privileged attorney~~address reasonable privilege concerns and (iv) as necessary to remove personal identifiable information. Acquirer and the Company shall jointly develop, determine and cooperate with one another with respect to the strategy, timing and form for obtaining all consents, waiting period expirations or terminations, waivers, non-~~client communications~~ objections or ~~attorney work product~~approvals that may be sought from any Governmental Authority pursuant to this Section 8.01; provided, however, that in the event of any disagreement between the Parties with respect to the matters described in the foregoing clause, the determination of Parent shall prevail. (c) ~~Purchaser~~ Parent, Acquirer and ~~Seller~~ the Company shall file or cause to be filed, (i) any required notifications under the HSR Act as promptly as practicable, but in any event no later than ~~twenty-five~~ twenty (2520) Business Days, after the date of this Agreement and shall supply as promptly as practicable any additional information and documentary materials that may be required or advisable pursuant to the HSR Act and shall use its respective reasonable best efforts to take all other actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act as promptly as practicable (ii) any required notifications in relation to the FCA Approvals and the CBI Approval as promptly as practicable, but in any event no later than twenty (20) Business Days, after the date of this Agreement, (iii) a draft of the CFIUS Notice as promptly as practicable, but in any event no later than thirty (30) Business Days, after the date of this Agreement, and shall file, as promptly as practicable after the resolution of all questions and comments received from CFIUS staff regarding such draft of the CFIUS Notice (or receipt of confirmation that CFIUS staff have no such questions or comments), the CFIUS Notice with CFIUS in accordance with the DPA and shall provide CFIUS with any additional information requested by CFIUS in connection with its review or investigation of the Transactions as promptly as practicable and in any event within the time required by the DPA (including pursuant to any extension permitted by CFIUS staff) and (iv) any other filings and/or notifications required or advisable in respect of any Required Approvals, whether in draft or final form (as required under Applicable Law), as promptly as practicable (but with respect to any filings required under the Competition Act (R.S.C., 1985, c. C-34, as amended) and the Irish Competition Act 2002 (as amended), in no event later than twenty (20) Business Days after the date of this Agreement~~, notifications under the HSR Act~~), and ~~Purchaser and Seller~~ shall ~~file or cause to be filed,~~ supply as promptly as ~~practicable~~practicable any additional information and documentary materials that may be reasonably requested in respect of any Required Approvals and, ~~any~~ subject to the terms and conditions of this Agreement, shall use its respective reasonable best efforts to take all other ~~filings and/or notifications~~ actions necessary to cause the expiration or termination of the applicable waiting periods or to obtain Consents under ~~applicable Regulatory Laws~~such Required Approvals. (d) ~~Purchaser shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by~~ If any ~~Governmental Entity with respect to the Sale and the other transactions contemplated by this Agreement under any Regulatory Laws. In connection therewith, if any Action~~ Proceeding is instituted (or threatened in writing to be instituted) challenging the ~~Sale or the other transactions contemplated by this Agreement~~ Transactions as violative of any ~~Regulatory~~ Applicable Law, including any applicable Antitrust Laws or any applicable Foreign Investment Laws, ~~Purchaser~~ Parent, Acquirer and the Company shall jointly (to the extent practicable) use ~~its reasonable~~ their best efforts to initiate and/or participate in any ~~Actions~~Proceedings, whether judicial or administrative, in order to (i) oppose or defend against any ~~Action~~ Proceeding by any Governmental ~~Entity~~ Authority to prevent or enjoin the consummation of the ~~Sale or the other transactions contemplated by this Agreement~~ Transactions and/or (ii) take such action as necessary to overturn any regulatory ~~Action~~ Proceeding by any Governmental ~~Entity~~ Authority to block ~~the~~ consummation of the ~~Sale or the other transactions contemplated by this Agreement~~Transactions, including by defending any such ~~Action~~ Proceeding brought by any Governmental ~~Entity~~ Authority in order to avoid the entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any Order that makes ~~illegal,~~ illegal or prohibits the consummation ~~of,~~ of the ~~Sale or the other transactions contemplated by this Agreement~~ Transactions resulting from any such ~~Action~~Proceeding. Notwithstanding anything to the contrary in this Agreement, (x) nothing in this Agreement shall require or be construed to require any Party to litigate in any court to seek to vacate or terminate or avoid the entry of any Order under the DPA and (y) in the event of a CFIUS Turndown, no Party shall have any further obligation to seek CFIUS Approval. (e) ~~Notwithstanding any other provision of this Agreement, Purchaser~~ Parent and Acquirer shall, and shall cause its ~~controlled Affiliates~~Affiliates to, to use its reasonable best efforts to take all actions necessary to avoid or eliminate each and every impediment under Applicable Law, including any ~~Regulatory~~ applicable Antitrust Laws or any applicable Foreign Investment Laws, so as to enable the Closing to occur as promptly as ~~practicable (and in any event no later than the Outside Date)~~practicable, including (i) proposing, negotiating~~, agreeing to~~, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, licensing, divestiture or disposition of any businesses, product lines or assets of the ~~Transferred Entities~~Company, Parent and ~~Purchaser~~their respective Affiliates, and (ii) otherwise taking or committing to take ~~actions, or agreeing to restrictions,~~ actions that after the Closing would limit Acquirer’s, the ~~Transferred Entities’,~~ Company’s or ~~Purchaser’s~~ their respective Affiliates’ freedom of action with respect to, or its or their ability to retain, operate, vote, transfer, receive dividends, or otherwise exercise full ownership rights with respect to any businesses, product lines or assets of the ~~Transferred Entities or Purchaser~~ Company, Acquirer and their respective Affiliates (~~such~~ the actions ~~contemplated~~ referred to in clauses (i) and (ii), together with any other behavioral remedy requested or imposed by a Governmental Authority in order to achieve clearance under Applicable Law, including any applicable Antitrust Laws or any applicable Foreign Investment Laws, a “~~Remedial Actions~~Remedy Action”); ~~provided~~provided that, ~~however, and~~ notwithstanding ~~the foregoing or~~ anything to the contrary ~~herein~~in this Agreement, nothing in this ~~Agreement~~ Agreement, including this Section 8.01 and the “reasonable best efforts” standard set forth herein, shall require or be construed ~~(y)~~ to require ~~Purchaser or its Affiliates (or permit Seller, the Transferred Entities,~~ Acquirer or any of ~~their respective Affiliates)~~ its Affiliates to ~~offer,~~ propose~~, take~~, negotiate, commit to, accept or effect any Remedy Action that would result in a Burdensome Condition. Without the prior written consent of Parent or ~~agree to take any Remedial Action if~~ Acquirer (such ~~action, individually~~ consent or in the aggregate with all other such actions taken together, would reasonably be expected to have a material adverse effect on the financial condition or results of the operations of the Transferred Entities, taken as a whole (it being understood, for purposes of determining whether such Remedial Action would reasonably be expected to have such a material adverse effect, any proceeds received, or expected non-consent to be ~~received~~consistent with, ~~from effecting any Remedial Action shall~~ and subject to, the obligations of Parent or Acquirer set forth in Section 8.01), the Company and its Subsidiaries will not ~~be taken into consideration) or (z) to require Purchaser to commit to~~ take or agree to take any Remedy Action in connection with Applicable Laws, including any applicable Antitrust Laws or any applicable Foreign Investment Laws, regardless of whether such ~~Remedial Actions which~~ action would ~~bind Purchaser~~ constitute a Burdensome Condition. In addition, in no event shall the Parties be required to proffer, consent to or ~~its Affiliates in respect~~ agree to or effect any Remedy Action that is not conditioned upon the closing of ~~any matter if~~ the ~~Closing does not occur. No actions taken pursuant to this Section 6.3(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occur~~Transactions. (f) Prior to the First Effective Time, each Party shall, and shall cause its Affiliates to, use its reasonable best efforts to obtain, and to cooperate in obtaining, all material Consents from Persons (other than any Governmental Authority) necessary or appropriate to permit, or otherwise triggered by, the consummation of the Transactions; provided, however, that, with respect to seeking or obtaining any such Consents, the Parties (and their respective Affiliates) shall not be required to undertake any extraordinary measures, including (i) the waiver of any condition to Closing in its favor, (ii) the initiation or prosecution of any Proceedings, (iii) the expenditure of payment of funds in excess of normal and usual administrative and processing fees, if any, or (iv) the giving of any other consideration by the Parties (and their respective Affiliates), including any adjustment to the Merger Consideration. Whether or not the ~~Sale is~~ Transactions are consummated, ~~Purchaser~~ Acquirer shall be responsible for all ~~filing fees, including~~ filing fees under the HSR Act, ~~due~~ the DPA and any other filings and/or notifications required in respect of any Required Approvals. (g) Subject to ~~any Governmental Entity to obtain any consent~~the terms and conditions set forth in this Agreement, ~~clearance, expiration or termination~~ without limiting the generality of ~~a waiting period, authorization, Order or approval~~ the undertakings of the Parties pursuant to this Section ~~6.3~~8.01, the Company agrees to, as soon as practicable after the date hereof, prepare and cause the CMA to be filed with FINRA, and shall provide Acquirer with an opportunity to review and comment upon the CMA (which comments the Company shall consider in good faith) prior to the filing thereof with FINRA. Acquirer will, as promptly as reasonably practicable, supply to the Company all information requested by the Company as is reasonably necessary (i) for the Company to prepare the CMA and satisfy requests for additional information related thereto from FINRA and (ii) in connection with any other transactions involving the Company or its Subsidiaries requiring FINRA approval prior to the Closing.

Appears in 1 contract

Sources: Merger Agreement (Aon PLC)

Required Actions. (a) Purchaser and Seller shall, and shall ~~use~~ cause their respective ~~reasonable best efforts to take~~Affiliates to, ~~or cause to be taken,~~ take all actions, and do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to consummate and make effective in an the most expeditious manner possible the Sale and the other transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, ~~registrations~~ registrations, notifications and notices required to be filed to consummate the Sale and the other transactions contemplated by this ~~Agreement and~~ 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 (~~“Regulatory Approvals”) (~~which actions shall include furnishing all information required under the HSR Act or any ~~Regulatory Laws~~other applicable Competition Laws or with respect to any other required approval) required to be obtained or made by Purchaser or Seller or any of their respective Affiliates in connection with the Sale and the other transactions contemplated by this ~~Agreement or that otherwise become applicable~~ Agreement, and (iii) the execution and delivery of any additional instruments necessary to consummate the Sale and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement. Additionally, each of Seller and Purchaser shall, and shall 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 as promptly as practicable~~ set forth in Article 8 and ~~shall~~ not ~~(and each of the Seller and Purchaser shall cause Purchaser Sponsor, its controlled Affiliates and Representatives not to)~~ take any action after the date of this Agreement that would reasonably be expected to ~~(A) materially prevent,~~ delay ~~or impede~~ the obtaining of, or result in not obtaining, any ~~Regulatory Approvals required~~ 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 ~~made by Purchaser~~ prior to the Closing or ~~Seller~~would reasonably be expected to result in the failure to satisfy, or any ~~of their respective Affiliates~~ delay in ~~connection with the Sale and the other transactions contemplated by this Agreement~~satisfying, ~~or (B) otherwise cause~~ any ~~of the conditions~~ condition set forth in Article IX 8. Without limiting the foregoing, Purchaser shall not, and shall cause its Affiliates not to, acquire or agree to acquire, by merger, consolidation, stock or asset purchase or otherwise, any business or corporation, partnership or other business organization or division thereof, or pursue or engage in any merger, business combination, consolidation, acquisition, sale or similar transaction with any other Person, or agree to, solicit, offer, propose or recommend any of ~~this Agreement~~ the foregoing, to ~~fail~~ the extent it would reasonably be expected to delay the obtaining of, or result in not obtaining, any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity necessary to be ~~satisfied~~ obtained at or ~~prevent~~prior to the Closing or would reasonably be expected to result in the failure to satisfy, ~~delay or impede the consummation of the Sale~~ or any ~~other transaction contemplated by this Agreement~~delay in satisfying, any condition set forth in Article 8. (b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and Seller shall each keep the other apprised of the status of matters relating to the completion of the Sale and the other transactions contemplated by this Agreement and work cooperatively in connection with obtaining all required ~~Regulatory Approvals~~consents, clearances, expirations or terminations of waiting periods, authorizations, Orders or approvals of, or any exemptions by, any Governmental Entity. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section ~~6.2~~5.02, to the extent not prohibited by applicable Law, each ~~of Seller and Purchaser~~ party shall promptly consult with the other party to this Agreement to provide any necessary information with respect to (and, in the case of correspondence, provide the other party (or their counsel) copies of) all filings made by such party with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement, the Sale and the other transactions contemplated by this Agreement. Subject to the Confidentiality Agreement and Section ~~6.2~~5.02, to the extent not prohibited by applicable Law, each party to this Agreement shall promptly inform the other party to this Agreement, and if in writing, furnish the other party with copies of (or, in the case of oral communications, advise the other party of) any communication from any Governmental Entity ~~or other such Person~~ regarding the Sale or the other transactions contemplated by this Agreement, and permit the other party to review and discuss ~~reasonably~~ in advance, and consider in good faith the views of the other party in connection with, any proposed written or oral ~~communication, correspondence~~ communication or submission with or to any such Governmental ~~Entity or other such Person~~Entity. If any party to this Agreement or any Representative of such party receives a request for additional information or documentary material from any Governmental Entity with respect to the Sale or the other transactions contemplated by this Agreement, then such party ~~will~~ shall make, or cause to be made, promptly and after consultation with the other party to this Agreement, an appropriate response in compliance with such request. Purchaser ~~or its Representatives, on one hand, and Seller or its Representatives, on the other hand,~~ shall not participate in any meeting with any Governmental Entity in connection with this Agreement or the Sale, or with any other Person in connection with any Action by a private party relating to the HSR Act or any ~~Regulatory~~ other applicable Competition Laws or any other required approvals in connection with this Agreement or the Sale, or make oral submissions at meetings (whether in person or via video conference) or in telephone or other conversations, unless it consults with ~~the other party reasonably~~ Seller in advance and, to the extent not prohibited by such Governmental Entity, gives ~~the other party~~ Seller the opportunity to attend and participate thereat. Subject to the Confidentiality Agreement and Section 5.02, to the extent not prohibited by applicable Law, each party shall furnish the other party with copies of all correspondence, filings, submissions and communications (and memoranda setting forth the substance thereof) between it and any such Governmental Entity or other such Person with respect to this Agreement and the Sale or the other transactions contemplated by this Agreement, and furnish the other party with such necessary information and reasonable assistance as the other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any such Governmental Entity or other such Person. Purchaser and 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 ~~6.3~~5.03, and the information contained therein, shall be given only to the outside legal counsel and corporate in-house antitrust counsel of the recipient and shall not be disclosed by such outside counsel and corporate in-house antitrust counsel to employees (other than corporate in-house antitrust counsel), officers or directors of the ~~recipient,~~ recipient unless express permission is obtained in advance from the source of the materials (Purchaser or Seller, as the case may be) or its legal counsel; it being understood that materials provided pursuant to this Agreement may be redacted (i) to remove references concerning the valuation of the ~~Business~~Business or the Sale Process, (ii) as necessary to comply with contractual ~~obligations~~ arrangements or applicable Law and (iii) as necessary to ~~protect privileged attorney-client communications or attorney work product~~address reasonable privilege concerns. (c) Purchaser and Seller shall file or cause to be ~~filed~~filed any filings and/or notifications required in respect of any required approvals (other than under the HSR Act, which have been filed prior to the date hereof) as promptly as practicable, ~~but~~ and in the case of the filings and/or notifications described on Schedule 8.01(a), in any event no later than ~~twenty-~~five (255) Business Days after the date of this Agreement~~, notifications under~~ . In the event that the parties receive a request for additional information or documentary materials after a notification pursuant to the HSR ~~Act~~Act or any other applicable Competition Laws, ~~and Purchaser and Seller~~ or a request for additional information from any Governmental Entity in connection with any other required approvals, the parties shall ~~file or cause~~ use their respective best efforts to ~~be filed~~comply with such requests, as applicable, as promptly as ~~practicable~~possible and produce documents, data, responses to interrogatories, or other information on a rolling basis, and counsel for both parties shall closely cooperate during the entirety of any ~~other filings and/or notifications under applicable Regulatory Laws~~such investigatory or review process. (d) Purchaser and Seller shall, and shall cause their respective Affiliates to, use ~~its reasonable~~ their respective 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 any ~~Regulatory Laws~~applicable Law. In connection therewith, if any Action is instituted (or threatened to be instituted) challenging the Sale or the other transactions contemplated by this Agreement as violative of any ~~Regulatory Laws~~applicable Law, Purchaser and Seller shall jointly (to the extent practicable) use ~~its reasonable~~ their best efforts to initiate and/or participate in any ~~Actions~~proceedings, whether judicial or administrative, in order to (i) oppose or defend against any Action by any Governmental Entity to prevent or enjoin the consummation of the Sale or the other transactions contemplated by this Agreement and/or (ii) take such action as necessary to overturn any regulatory Action by any Governmental Entity to block ~~the~~ consummation of the Sale or the other transactions contemplated by this Agreement, including by defending any such Action brought by any Governmental Entity in order to avoid the entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any Order that makes ~~illegal,~~ illegal or prohibits the consummation ~~of,~~ of the Sale or the other transactions contemplated by this Agreement resulting from any such Action. (e) Notwithstanding any other provision of this Agreement, Purchaser shall, and shall cause its ~~controlled Affiliates~~Affiliates to, ~~to use reasonable best efforts to~~ take all actions 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 (i) proposing, negotiating, ~~agreeing to,~~ committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, licensing, divestiture or disposition of any businesses, ~~product lines~~ assets or ~~assets~~ properties of the Transferred Entities, Purchaser and ~~Purchaser~~their respective Affiliates, and (ii) otherwise taking or committing to take ~~actions, or agreeing to restrictions,~~ actions that after the Closing would limit Purchaser’s, the Transferred Entities’, ’ or ~~Purchaser’s~~ 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 of the Transferred Entities or Purchaser (such actions contemplated in clauses (i) and (ii), “Remedial Actions”); provided, however, and notwithstanding the foregoing or anything to the contrary herein, nothing in this Agreement shall be construed (y) to require Purchaser or its Affiliates (or permit Seller, the Transferred Entities, or any of their respective Affiliates) to offer, propose, take, negotiate, commit to, effect or agree to take any Remedial Action if such action, individually or in the aggregate with all other such actions taken together, would reasonably be expected to have a material adverse effect on the financial condition or results of the operations properties of the Transferred Entities, ~~taken as a whole (it being understood~~Purchaser and their respective Affiliates. All such efforts by Purchaser shall be unconditional, for purposes of determining whether such Remedial Action would reasonably be expected to have such a material adverse effect, any proceeds received, or expected to be received, from effecting any Remedial Action shall not be taken into consideration) or (z) to require Purchaser to commit to take or agree to take any such Remedial Actions which would bind Purchaser or its Affiliates in respect of any matter if the Closing does not occur. No and no actions taken pursuant to this Section ~~6.3(e~~5.03(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occur. Notwithstanding anything herein to the contrary, Seller shall not be obligated to take, or agree or commit to take, any action (A) that is not conditioned on the Closing or (B) that relates in any way to the Retained Businesses, and in no event shall Seller or any of its Affiliates be required to be the licensing, selling, divesting, transferring, disposing or encumbering party under any such agreements or transactions described above unless required by the relevant Governmental Entity or applicable Law, and, in any case, Seller and its Affiliates shall have no direct or indirect obligation or Liability in respect of any such agreements or transactions, including any indemnification obligations, for which Seller and its Affiliates are not fully indemnified by Purchaser. (f) Purchaser agrees to provide such security and assurances as to financial capability, resources and creditworthiness as may be reasonably requested by any Governmental Entity or other third-party whose consent or approval is sought in connection with the transactions contemplated hereby. Whether or not the Sale is consummated, Purchaser shall be responsible for all ~~filing fees,~~ fees and payments (including filing fees ~~under the HSR Act~~and legal, ~~due~~ economist and other professional fees) to any third party or any Governmental Entity in order to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section ~~6.3~~5.03, other than the fees of and payments to Seller’s legal and professional advisors.

Appears in 1 contract

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

Required Actions. (a) Purchaser and Seller shall, and shall ~~use~~ cause their respective ~~reasonable best efforts to take~~Affiliates to, ~~or cause to be taken,~~ take all actions, and do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to consummate and make effective in an the most expeditious manner possible the Sale and the other transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, ~~registrations~~ registrations, notifications and notices required to be filed to consummate the Sale and the other transactions contemplated by this ~~Agreement and~~ 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 (~~“Regulatory Approvals”) (~~which actions shall include furnishing all information required under the HSR Act or any ~~Regulatory Laws~~other applicable Competition Laws or under the FPA or with respect to any other Required Approval) required to be obtained or made by Purchaser or Seller or any of their respective Affiliates in connection with the Sale and the other transactions contemplated by this ~~Agreement or that otherwise become applicable~~ Agreement, and (iii) the execution and delivery of any additional instruments necessary to consummate the Sale and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement. Additionally, each of Seller and Purchaser shall, and shall 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 as promptly as practicable~~ set forth in Article VIII and ~~shall~~ not ~~(and each of the Seller and Purchaser shall cause Purchaser Sponsor, its controlled Affiliates and Representatives not to)~~ take any action after the date of this Agreement that would reasonably be expected to ~~(A) materially prevent,~~ delay ~~or impede~~ the obtaining of, or result in not obtaining, any ~~Regulatory Approvals required~~ 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 ~~made by Purchaser~~ prior to the Closing or ~~Seller~~would reasonably be expected to result in the failure to satisfy, or any ~~of their respective Affiliates~~ delay in ~~connection with the Sale and the other transactions contemplated by this Agreement~~satisfying, ~~or (B) otherwise cause~~ any ~~of the conditions~~ condition set forth in Article IX VIII. Without limiting the foregoing, with the exception of ~~this Agreement~~ actions or circumstances under FERC Docket No. EC21-74, Purchaser shall not, and shall cause its Affiliates not to, acquire or agree to ~~fail~~ 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 ~~satisfied~~ obtained at or ~~prevent~~prior to the Closing or would reasonably be expected to result in the failure to satisfy, ~~delay or impede the consummation of the Sale~~ or any ~~other transaction contemplated by this Agreement~~delay in satisfying, any condition set forth in Article VIII. (b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and Seller shall each keep the other apprised of the status of matters relating to the completion of the Sale and the other transactions contemplated by this Agreement and work cooperatively in connection with obtaining all required ~~Regulatory Approvals~~consents, clearances, expirations or terminations of waiting periods, authorizations, Orders or approvals of, or any exemptions by, any Governmental Entity for the Sale and the other transactions contemplated by this Agreement. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section ~~6.2~~5.2, to the extent not prohibited by applicable Law, each ~~of Seller and Purchaser~~ party shall promptly consult with the other party to this Agreement to provide any necessary information with respect to (and, in the case of correspondence, provide the other party (or their counsel) copies of) all filings made by such party with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement, the Sale and the other transactions contemplated by this Agreement. Subject to the Confidentiality Agreement and Section ~~6.2~~5.2, to the extent not prohibited by applicable Law, each party to this Agreement shall promptly inform the other party to this Agreement, and if in writing, furnish the other party with copies of (or, in the case of oral communications, advise the other party of) any communication from any Governmental Entity ~~or other such Person~~ regarding the Sale or the other transactions contemplated by this Agreement, and permit the other party to review and discuss ~~reasonably~~ in advance, and consider in good faith the views of the other party in connection with, any proposed written or oral ~~communication, correspondence~~ communication or submission with or to any such Governmental Entity regarding the Sale or the other ~~such Person~~transactions contemplated by this Agreement. If any party to this Agreement or any Representative of such party receives a request for additional information or documentary material from any Governmental Entity with respect to the Sale or the other transactions contemplated by this Agreement, then such party ~~will~~ shall make, or cause to be made, promptly and after consultation with the other party to this Agreement, an appropriate response in compliance with such request. ~~Purchaser or its Representatives, on one hand, and Seller or its Representatives, on the other hand,~~ Each party shall not participate in any meeting with any Governmental Entity in connection with this Agreement or the Sale, or with any other Person in connection with any Action by a private party relating to the HSR Act or any ~~Regulatory~~ other applicable Competition Laws or the FPA or any other Required Approvals in connection with this Agreement or the Sale, or make oral submissions at meetings or in telephone or other conversations, unless it consults with the other party ~~reasonably~~ in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate thereat. Subject to the Confidentiality Agreement and Section 5.2, to the extent not prohibited by applicable Law, each party shall furnish the other party with copies of all correspondence, filings, submissions and communications (and memoranda setting forth the substance thereof) between it and any such Governmental Entity or other such Person with respect to this Agreement and the Sale or the other transactions contemplated by this Agreement, and furnish the other party with such necessary information and reasonable assistance as the other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any such Governmental Entity or other such Person regarding the Sale or the other transactions contemplated by this Agreement. Purchaser and Seller may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other party under this Agreement as “outside counsel/corporate in-house antitrust counsel only.” Such designated ~~materials and any~~ materials provided by Purchaser to Seller or by Seller to Purchaser pursuant to this Section ~~6.3~~5.3, and the information contained therein, shall be given only to the outside legal counsel and corporate in-house antitrust counsel of the recipient and shall not be disclosed by such outside counsel and corporate in-house antitrust counsel to employees (other than corporate in-house antitrust counsel), officers or directors of the ~~recipient,~~ recipient unless express permission is obtained in advance from the source of the materials (Purchaser or Seller, as the case may be) or its legal counsel; it being understood that materials provided pursuant to this Agreement may be redacted (i) to remove references concerning the valuation of the ~~Business~~Business or the Sale Process, (ii) as necessary to comply with contractual ~~obligations~~ arrangements or applicable Law and (iii) as necessary to ~~protect privileged attorney-client communications or attorney work product~~address reasonable privilege concerns. (c) Purchaser and Seller shall file or cause to be ~~filed,~~ filed (i) any required notifications under the HSR Act as promptly as practicable, but in any event no later than ~~twenty-~~five (255) Business Days after the date of this Agreement, ~~notifications~~ (ii) an application under Section 203 of the ~~HSR Act~~FPA as promptly as practicable, but in any event no later than fifteen (15) Business Days after the date of this Agreement, and ~~Purchaser and~~ (iii) except as otherwise provided herein, any filings and/or notifications required in respect of any other Required Approvals as promptly as practicable after the date of this Agreement. Seller shall file or cause to be ~~filed~~filed any required filings with FERC to modify or re-approve the existing rate schedule for compensation for Reactive Supply and Voltage Control from Generation Sources Service (and shall use reasonable efforts, in good faith coordination with Purchaser pursuant to this Section 5.3(c), to make such filing no later than November 8, 2021, and in any event shall make such filing no later than November 15, 2021) (the “Reactive Update”). Within fifteen (15) days after the date of this Agreement, and every fifteen (15) days thereafter, Seller shall meet with Purchaser and its advisors and consultants to provide an update on the status of the preparation of the Reactive Update. During such meeting, Seller shall provide Purchaser and its advisors and consultants with copies of any existing drafts of the Reactive Update and any existing draft work papers associated with the Reactive Update. Seller shall include and incorporate, to the maximum extent possible, any edits and comments to such drafts provided by Purchaser or its advisors and consultants. Seller shall include Purchaser and its advisors and consultants in any communications with FERC regarding the Reactive Update and shall invite Purchaser and its advisors and consultants to any meeting with FERC regarding the Reactive Update. In the event that the parties receive a request for additional information or documentary materials after an initial notification pursuant to the HSR Act or any other applicable Competition Laws, or a request for additional information from FERC or any other Governmental Entity in connection with any other Required Approvals, the parties shall use their respective reasonable best efforts to comply with such requests, as applicable, as promptly as ~~practicable~~possible and produce documents, responses to interrogatories, or other information on a rolling basis, and counsel for both parties shall closely cooperate during the entirety of any ~~other filings and/or notifications under applicable Regulatory Laws~~such investigatory or review process. (d) Purchaser and Seller shall, and shall cause their respective Affiliates to, use ~~its~~ their respective reasonable best efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the Sale and the other transactions contemplated by this Agreement under any ~~Regulatory Laws~~applicable Law. In connection therewith, if any Action is instituted (or threatened to be instituted) challenging the Sale or the other transactions contemplated by this Agreement as violative of any ~~Regulatory Laws~~applicable Law, Purchaser and Seller shall jointly (to the extent practicable) use ~~its~~ their reasonable best efforts to initiate and/or participate in any ~~Actions~~proceedings, whether judicial or administrative, in order to (i) oppose or defend against any Action by any Governmental Entity to prevent or enjoin the consummation of the Sale or the other transactions contemplated by this Agreement and/or (ii) take such action as necessary to overturn any regulatory Action by any Governmental Entity to block ~~the~~ consummation of the Sale or the other transactions contemplated by this Agreement, including by defending any such Action brought by any Governmental Entity in order to avoid the entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any Order that makes ~~illegal,~~ illegal or prohibits the consummation ~~of,~~ of the Sale or the other transactions contemplated by this Agreement resulting from any such Action. (e) Notwithstanding any other provision of this Agreement, with the exception of actions or circumstances under FERC Docket No. EC21-74, Purchaser shall, and shall cause its ~~controlled Affiliates~~Affiliates to, ~~to use reasonable best efforts to~~ take all actions 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 (i) proposing, negotiating, ~~agreeing to,~~ committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, licensing, divestiture or disposition of any businesses, ~~product lines~~ assets or ~~assets~~ properties of the Transferred Entities, Purchaser and ~~Purchaser~~their respective Affiliates, and (ii) otherwise taking or committing to take ~~actions, or agreeing to restrictions,~~ actions that after the Closing would limit Purchaser’s, the Transferred Entities’, ’ or ~~Purchaser’s~~ 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 of the Transferred Entities or Purchaser (such actions contemplated in clauses (i) and (ii), “Remedial Actions”); provided, however, and notwithstanding the foregoing or anything to the contrary herein, nothing in this Agreement shall be construed (y) to require Purchaser or its Affiliates (or permit Seller, the Transferred Entities, or any of their respective Affiliates) to offer, propose, take, negotiate, commit to, effect or agree to take any Remedial Action if such action, individually or in the aggregate with all other such actions taken together, would reasonably be expected to have a material adverse effect on the financial condition or results of the operations properties of the Transferred Entities, ~~taken as a whole (it being understood~~Purchaser and their respective Affiliates. All such efforts by Purchaser shall be unconditional, for purposes of determining whether such Remedial Action would reasonably be expected to have such a material adverse effect, any proceeds received, or expected to be received, from effecting any Remedial Action shall not be taken into consideration) or (z) to require Purchaser to commit to take or agree to take any such Remedial Actions which would bind Purchaser or its Affiliates in respect of any matter if the Closing does not occur. No and no actions taken pursuant to this Section ~~6.3(e~~5.3(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occur. Notwithstanding the foregoing or anything herein to the contrary, in no event shall Purchaser or any of its Affiliates, including any portfolio company in which a fund advised by ArcLight Capital Partners, LLC is invested (other than Purchaser or its Subsidiaries), be required to (and nothing in this Section 5.3 shall be interpreted as requiring Purchaser or any of its Affiliates to) (x) take any action that is not conditioned upon the Closing or (y) consent to any divestiture, hold separate order, limitation on conduct or other remedial action impacting any business or Person other than the Transferred Entities. Notwithstanding anything herein to the contrary, Seller shall not be obligated to take, or agree or commit to take, any action (A) that is not conditioned on the Closing or (B) that relates to the Retained Businesses, and in no event shall Seller or any of its Affiliates be required to be the licensing, selling, divesting, transferring, disposing or encumbering party under any such agreements or transactions described above unless required by the relevant Governmental Entity or applicable Law, and, in any case, Seller and its Affiliates shall have no direct or indirect obligation or Liability in respect of any such agreements or transactions, including any indemnification obligations, for which Seller and its Affiliates are not fully indemnified by Purchaser. (f) Purchaser agrees to use reasonable best efforts to provide such security and assurances as to financial capability, resources and creditworthiness as may be reasonably requested by any Governmental Entity or other third party whose consent or approval is sought in connection with the transactions contemplated hereby; provided that the Purchaser’s obligations in respect of Seller Guarantees shall be governed by Section 5.9 and not by this Section 5.3(f); provided, further, that Purchaser shall have no obligation under this Section 5.3(f) in connection with an Excluded Liability. Whether or not the Sale is consummated, Purchaser shall be responsible for all ~~filing fees,~~ fees and payments (including filing fees ~~under the HSR Act~~and legal, ~~due~~ economist and other professional fees) to any Governmental Entity in order to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section ~~6.3~~5.3, other than the fees of and payments (x) to Seller’s legal and professional advisors and (y) arising out of any Excluded Liability. (g) Notwithstanding anything to the contrary herein, if (i) any State Regulatory Condition is not satisfied by the Outside Date or (ii) a Substantial Detriment has been imposed by a Governmental Entity in connection with any State Regulatory Condition, then Seller and Purchaser shall, at Seller’s option, (x) (A) exclude from the transactions contemplated by this Agreement each Transferred Entity and/or Facility, as applicable, that has caused such Substantial Detriment

Appears in 1 contract

Sources: Equity Purchase Agreement (Pseg Power LLC)

Required Actions. (a) Subject to any different standard expressly set forth herein with respect to any covenant or agreement of the parties hereto, Purchaser and Seller shall, and shall ~~use~~ cause their respective Subsidiaries to, use reasonable best efforts to take, or cause to be taken, all actions, and do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to consummate and make effective in an expeditious manner the ~~Sale and the other~~ transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the ~~Sale and the other~~ transactions contemplated by this Agreement and (ii) taking all actions ~~reasonably~~ necessary to obtain (and cooperating with each other in obtaining) any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity (“Regulatory Approvals”) (which actions shall include furnishing all information required under any Regulatory Laws) required to be obtained or made by Purchaser or Seller or any of their respective Affiliates in connection with the ~~Sale and the other~~ transactions contemplated by this Agreement or ~~that~~ otherwise become applicable to the transactions contemplated by this Agreement. Additionally, each of Seller and Purchaser shall take, or cause to be taken, all actions, and do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to fulfill all conditions precedent to this Agreement ~~as promptly as practicable~~ and shall not (and shall cause each of ~~the Seller and Purchaser shall cause Purchaser Sponsor, its controlled~~ their respective Affiliates and Representatives not to) take any action after the date of this Agreement that would reasonably be expected to (A) ~~materially~~ prevent, materially delay or impede the obtaining of, or result in not obtaining, any Regulatory Approvals required to be obtained or made by Purchaser or ~~Seller,~~ Seller or any of their respective Affiliates in connection with the ~~Sale and the other~~ transactions contemplated by this Agreement, or (B) otherwise cause any of the conditions set forth in Article IX of this Agreement to fail to be satisfied or prevent, materially delay or impede the consummation of the ~~Sale or any other transaction~~ transactions contemplated by this Agreement. (b) Prior to the Closing, to the extent not prohibited by applicable Law, Purchaser and Seller shall each keep the other apprised of the status of matters relating to the completion of the ~~Sale and the other~~ transactions contemplated by this Agreement and work cooperatively in connection with obtaining all required Regulatory Approvals. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section ~~6.2~~6.4, to the extent not prohibited by applicable Law, each of Seller and Purchaser shall promptly consult with the other party to provide any necessary information with respect to all filings made by such party with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement, the ~~Sale and the other~~ transactions contemplated by this Agreement. Subject to the Confidentiality Agreement and Section ~~6.2~~6.4, to the extent not prohibited by applicable Law, each party to this Agreement shall promptly inform the other party to this Agreement, and if in writing, furnish the other party with copies of (or, in the case of oral communications, advise the other party of) any substantive communication from any Governmental Entity or other such Person regarding the ~~Sale or the other~~ transactions contemplated by this Agreement, and permit the other party to review and discuss reasonably in advance, and consider in good faith the views of the other party in connection with, any proposed written or oral communication, correspondence or submission with or to any such Governmental Entity or other such Person. If any party to this Agreement or any Representative of such party receives a request for additional information or documentary material from any Governmental Entity with respect to the ~~Sale or the other~~ transactions contemplated by this Agreement, then such party will make, or cause to be made, promptly and after consultation with the other party to this Agreement, an appropriate response in compliance with such request. Purchaser or its Representatives, on one hand, and Seller or its Representatives, on the other hand, shall not participate in any substantive meeting with any Governmental Entity in connection with this Agreement or the ~~Sale~~transactions contemplated hereby, or with any other Person in connection with any Action by a private party relating to any Regulatory Laws in connection with this Agreement or the ~~Sale~~transactions contemplated hereby, or make oral submissions at meetings or in telephone or other conversations, unless it consults with the other party reasonably in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate thereat. Purchaser and Seller may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other party under this Agreement as “outside counsel/in-house counsel only.” Such designated materials and any materials provided by Purchaser to Seller or by Seller to Purchaser pursuant to this Section ~~6.3~~6.5, and the information contained therein, shall be given only to the outside legal counsel and in-house counsel of the recipient and shall not be disclosed by such outside counsel and in-house counsel to employees (other than in-house counsel), officers or directors of the recipient, unless express permission is obtained in advance from the source of the materials (Purchaser or Seller, as the case may be) or its legal counsel; it being understood that materials provided pursuant to this Agreement may be redacted (i) to remove references concerning the valuation of the Business, (ii) as necessary to comply with contractual obligations and (iii) as necessary to protect privileged attorney-client communications or attorney work product. (c) Purchaser and Seller shall file or cause to be filed, as promptly as practicable, but in any event no later than ~~twenty-five~~ ten (2510) Business Days after the date of this Agreement, notifications under the HSR Act, and Purchaser and Seller shall file or cause to be filed, as promptly as practicable, any other filings and/or notifications under applicable Regulatory Laws. (d) Purchaser shall use its 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 any Regulatory Laws~~. In connection therewith~~; provided, ~~if any Action is instituted (or threatened to be instituted) challenging the Sale or the other transactions contemplated by~~ however, notwithstanding anything in this Agreement ~~as violative~~ to the contrary it is expressly understood and agreed that neither Purchaser nor any of its Subsidiaries or Affiliates shall be under any ~~Regulatory Laws~~obligation to: (a) litigate or contest any administrative or judicial action or proceeding or any decree, ~~Purchaser shall use its reasonable best efforts to initiate and/or participate in any Actions~~judgment, injunction or other order, whether ~~judicial~~ temporary, preliminary or ~~administrative~~permanent, or (b) make proposals, execute or carry out agreements or submit to orders providing for (i) oppose or defend against any Action by any Governmental Entity to prevent or enjoin the consummation of the Sale or the other transactions contemplated by this Agreement and/or (ii) take such action as necessary to overturn any regulatory Action by any Governmental Entity to block the consummation of the Sale or the other transactions contemplated by this Agreement, including by defending any such Action brought by any Governmental Entity to avoid the entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any Order that makes illegal, or prohibits the consummation of, the Sale or the other transactions contemplated by this Agreement resulting from any such Action. (e) Notwithstanding any other provision of this Agreement, Purchaser shall, and shall cause its controlled Affiliates, to use reasonable best efforts to take all 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, agreeing to, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture or other disposition or holding separate (through the establishment of a trust or otherwise) of any ~~businesses, product lines~~ assets or categories of assets of ~~the Transferred Entities, and~~ Purchaser, ~~and~~ any of its Affiliates or the Company, or the holding separate of shares of capital stock of the Company, (ii) ~~otherwise taking~~ the imposition of any limitation on the ability of Purchaser or ~~committing~~ any of its Affiliates to ~~take actions~~freely conduct their business or own such assets or to acquire, hold or exercise full rights of ownership of shares of capital stock of the Company, or ~~agreeing~~ (iii) any modification or waiver of the terms and conditions of this Agreement, (c) otherwise agree to ~~restrictions, that after the Closing would limit the Transferred Entities’,~~ any course of conduct (or ~~Purchaser’s freedom of action~~ refrain from taking any action) with respect to, any assets, rights, product lines, businesses, properties, divisions or ~~its or their ability to retain~~operations, or, in each case, any ~~businesses~~interests therein, ~~product lines~~ of Purchaser or ~~assets of~~ such Affiliates, or the ~~Transferred Entities or Purchaser (such actions contemplated in clauses (i) and (ii), “Remedial Actions”); provided, however~~Business, and ~~notwithstanding~~ further that the ~~foregoing~~ Company or ~~anything~~ Seller shall in no event agree or commit to ~~the contrary herein, nothing in this Agreement shall be construed (y) to require Purchaser or its Affiliates~~ (or ~~permit Seller,~~ cause any of its Subsidiaries (including the Transferred Entities, ) to agree or commit to) to any of ~~their respective Affiliates) to offer, propose, take, negotiate, commit to, effect or agree to take any Remedial Action if such action, individually or~~ the actions described in the ~~aggregate with all other such actions taken together, would reasonably be expected to have a material adverse effect on~~ foregoing without the ~~financial condition or results~~ prior written consent of the operations of the Transferred Entities, taken as a whole (it being understood, for purposes of determining whether such Remedial Action would reasonably be expected to have such a material adverse effect, any proceeds received, or expected to be received, from effecting any Remedial Action shall not be taken into consideration) or (z) to require Purchaser to commit to take or agree to take any such Remedial Actions which would bind Purchaser or its Affiliates in respect of any matter if the Closing does not occur. No actions taken pursuant to this Section 6.3(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occurPurchaser. (fe) Whether or not the Sale is consummated and, if the Sale is consummated, whether before, at or after the Closing, Purchaser shall be responsible for all ~~filing fees,~~ fees and payments (including filing fees ~~under the HSR Act~~and legal, ~~due~~ economist and other professional fees) to any third party or any Governmental Entity to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section ~~6.3~~6.5, other than the fees of and payments to Seller’s legal and professional advisors.

Appears in 1 contract

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

Required Actions. (a) ~~Purchaser~~ Upon the terms and ~~Seller shall~~ subject to the conditions set forth in this Agreement and the Transaction Documents, each of the parties hereto agrees to use ~~their respective~~ its commercially reasonable ~~best~~ efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable ~~under any applicable Laws~~ to consummate and make ~~effective~~ effective, in an the most expeditious manner practicable, the ~~Sale and the other transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Sale~~ Acquisition and the other transactions contemplated by this Agreement and (ii) taking all actions reasonably necessary to obtain (and cooperating with each other in obtaining) any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity (“Regulatory Approvals”) (which actions shall include furnishing all information required under any Regulatory Laws) required to be obtained or made by Purchaser or Seller or any of their respective Affiliates in connection with the Sale and the other transactions contemplated by this Agreement or that otherwise become applicable to the transactions contemplated by this Agreement. Additionally, each of Seller and Purchaser shall take, or cause to be taken, all actions, and do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to fulfill all conditions precedent to this Agreement as promptly as practicable and shall not (and each of the Seller and Purchaser shall cause Purchaser Sponsor, its controlled Affiliates and Representatives not to) take any action after the date of this Agreement that would reasonably be expected to (A) materially prevent, delay or impede the obtaining of, or result in not obtaining, any Regulatory Approvals required to be obtained or made by Purchaser or Seller, or any of their respective Affiliates in connection with the Sale and the other transactions contemplated by this Agreement, or (B) otherwise cause any of the conditions set forth in Article IX of this Agreement to fail to be satisfied or prevent, delay or impede the consummation of the Sale or any other transaction contemplated by this AgreementTransaction Documents. (b) ~~Prior to~~ In connection with and without limiting Section 5.06(a), promptly following the ~~Closing~~execution and delivery by the parties of this Agreement, to the ~~extent~~ parties shall (i) make all necessary registrations, declarations and filings with Governmental Entities that are required (including the filing of a Notification and Report Form under the HSR Act as soon as practicable but in any event not ~~prohibited by applicable Law, Purchaser and Seller shall each keep~~ later than 10 Business Days following the ~~other apprised~~ date hereof) in connection with the consummation of the ~~status of matters relating to the completion of the Sale~~ Acquisition and the other transactions contemplated by this Agreement and ~~work cooperatively~~ the Transaction Documents and (ii) take all other actions required to be taken in order to obtain all Consents and nonactions required to be obtained from Governmental Entities or private parties in connection with ~~obtaining all required Regulatory Approvals. In that regard, prior to~~ the ~~Closing, subject to~~ consummation of the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law, each of Seller and Purchaser shall promptly consult with the other party to provide any necessary information with respect to all filings made by such party with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement, the Sale Acquisition and the other transactions contemplated by this ~~Agreement. Subject~~ Agreement and the Transaction Documents and in order to eliminate each other impediment that may be asserted or obtained by such Governmental Entities or private parties, in each case with respect to the ~~Confidentiality Agreement~~ Acquisition and Section 6.2, to the extent not prohibited by applicable Law, each party to this Agreement shall promptly inform the other party to this Agreement, and if in writing, furnish the other party with copies of (or, in the case of oral communications, advise the other party of) any communication from any Governmental Entity or other such Person regarding the Sale or the other transactions contemplated by this Agreement and the Transaction Documents, in each case so as to enable the Closing to occur as soon as reasonably possible. Notwithstanding anything to the contrary in this Section 5.06, neither Jupiter Parent nor any of its affiliates shall be required to offer or agree to (A) dispose of, hold separate or limit its operation of any portion of the Business or of its other businesses, assets or properties, (B) limit its ability to acquire or hold, or exercise full rights of ownership of, the Acquired Assets or any of its other businesses, assets or properties or (C) limit its ability to effectively control the Business or any of its other businesses, assets or properties; provided that nothing in this Section 5.06(b) shall limit the obligations of Jupiter Parent or any of its affiliates following the Closing under clause 8.2 of the Shareholders’ Agreement. (c) Lucky Parent and each Seller shall (i) take all action necessary to ensure that no state takeover statute or similar statute or regulation is or becomes applicable to this Agreement, any of the Transaction Documents or any of the transactions contemplated by this Agreement or the Transaction Documents and (ii) if any state takeover statute or similar statute becomes applicable to this Agreement, any of the Transaction Documents or any of the transactions contemplated by this Agreement or the Transaction Documents, take all action necessary to ensure that the transactions contemplated by this Agreement and the Transaction Documents may be consummated as promptly as practicable on the terms contemplated by this Agreement and the Transaction Documents and otherwise to minimize the effect of such statute or regulation on this Agreement, any of the Transaction Documents and the transactions contemplated hereby and thereby. (d) In connection with and without limiting Section 5.06(a), prior to the Closing and, to the extent Jupiter Parent and the Company waive Section 6.02(c), for a period of 12 months thereafter, each party shall, and shall cause its affiliates to, use its commercially reasonable efforts (at its own expense) to obtain, and to cooperate in obtaining, all consents from third parties and Governmental Entities necessary or appropriate to permit the ~~other party to review and discuss reasonably in advance~~transfer of the Acquired Assets to, and ~~consider in good faith~~ the ~~views~~ assumption of the Assumed Liabilities by, the Company; provided, however, that the parties shall not be required to pay or commit to pay any amount to (or incur any obligation in favor of) any person from whom any such consent may be required (other ~~party~~ than filing or application fees). (e) Promptly, but in ~~connection with~~any event not more than two Business Days following the execution and delivery by the parties of this Agreement, ~~any proposed~~ (i) the Company, Elan Pharma International Limited and Lucky Collaboration Subsidiary shall provide to Wyeth the written notice contemplated by Section 13.7.1 of the Collaboration Agreement, in the forms attached hereto as Exhibits H-1 and H-2, as applicable, and (ii) the Company and Lucky Collaboration Subsidiary shall provide to Wyeth the written confirmation contemplated by Section 13.7.3 of the Collaboration Agreement, in the forms attached hereto as Exhibits I-1 and I-2, as applicable. (f) Notwithstanding anything in this Agreement to the contrary, nothing in this Section 5.06 shall require Jupiter Parent or ~~oral communication, correspondence or submission with or~~ the Company to (i) consent to any action or omission by Lucky Parent or any Seller that would be inconsistent with Section 5.01 absent such ~~Governmental Entity~~ consent or ~~other such Person. If~~ (ii) agree to amend or waive any ~~party to~~ provision of this Agreement or any ~~Representative of such party receives a request for additional information or documentary material from any Governmental Entity with respect~~ Transaction Document. Notwithstanding anything in this Agreement to the ~~Sale~~ contrary, nothing in this Section 5.06 shall require Lucky Parent or any Seller to (i) consent to any action or omission by Jupiter Parent or the ~~other transactions contemplated~~ Company that would be inconsistent with Section 5.02 absent such consent or (ii) agree to amend or waive any provision of this Agreement or any Transaction Document. (g) To the extent permitted by ~~this~~ Applicable Law and the Collaboration Agreement, ~~then such party will make~~each of the parties hereto shall use its commercially reasonable efforts to (i) cooperate in all respects with each other in connection with any required action under Section 5.06(b), including any filing or cause to be made, promptly and after consultation with the other party to this Agreement, an appropriate response in compliance with such request. Purchaser or its Representatives, on one hand, and Seller or its Representatives, on the other hand, shall not participate in any meeting submission with any Governmental Entity in connection with the Acquisition or any of the other transactions contemplated by this Agreement and the Transaction Documents (including, to the extent permitted by Applicable Law, providing copies of all such documents to the other parties prior to making such filing or submission and considering all reasonable comments of the ~~Sale, or with any~~ other ~~Person~~ parties suggested in connection therewith) and in connection with any ~~Action~~ suit, action, proceeding, investigation or other inquiry by a or before any Governmental Entity or private party relating to the Acquisition or any ~~Regulatory Laws~~ of the other transactions contemplated by this Agreement and the Transaction Documents, and (ii) keep the other parties informed in all material respects and on a reasonably timely basis of any material communication (including meetings, telephonic conferences, presentations and written correspondence) received by such party from, or given by such party to, any Governmental Entity or private party relating to the Acquisition or any of the other transactions contemplated by this Agreement and the Transaction Documents. Lucky Parent and the Sellers agree not to participate in any scheduled meeting or substantive discussion, either in person or by telephone, with any Governmental Entity in connection with ~~this Agreement or~~ the ~~Sale, or make oral submissions at meetings or in telephone or other conversations,~~ proposed transactions unless ~~it consults~~ they consult with Jupiter Parent and the ~~other party reasonably~~ Company in advance and, to the extent not prohibited by such Governmental Entity, gives Jupiter Parent and the ~~other party~~ Company the opportunity to attend and ~~participate thereat~~participate. Purchaser and Seller may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other party under this Agreement as “outside counsel only.” Such designated materials and any materials provided by Purchaser to Seller or by Seller to Purchaser pursuant to this Section 6.3, and the information contained therein, shall be given only to the outside legal counsel Each of the ~~recipient and shall~~ parties hereto agrees not ~~be disclosed by such outside counsel~~ to ~~employees (other than in-house counsel), officers~~ extend or directors of the recipient, unless express permission is obtained in advance from the source of the materials (Purchaser or Seller, as the case may be) or its legal counsel; it being understood that materials provided pursuant to this Agreement may be redacted (i) to remove references concerning the valuation of the Business, (ii) as necessary to comply with contractual obligations and (iii) as necessary to protect privileged attorney-client communications or attorney work product. (c) Purchaser and Seller shall file or cause to be filed, as promptly as practicable, but in restart any ~~event no later than twenty-five (25) Business Days after the date of this Agreement, notifications~~ waiting period under the HSR ~~Act, and Purchaser and Seller shall file~~ Act or ~~cause to be filed, as promptly as practicable,~~ any other ~~filings and/or notifications under applicable Regulatory Laws. (d) Purchaser shall use its reasonable best efforts to resolve such objections, if any, as may be asserted by~~ Antitrust Laws or enter into any agreement with a Governmental Entity ~~with respect~~ not to consummate the Sale and the other transactions contemplated by this Agreement under any Regulatory Laws. In connection therewith, if any Action is instituted (or threatened to be instituted) challenging the Sale or the other transactions contemplated by this Agreement as violative of any Regulatory Laws, Purchaser shall use its reasonable best efforts to initiate and/or participate in any Actions, whether judicial or administrative, to (i) oppose or defend against any Action by any Governmental Entity to prevent or enjoin the consummation of the Sale or the other transactions contemplated by this Agreement and/or (ii) take such action as necessary to overturn any regulatory Action by any Governmental Entity to block the consummation of the Sale or the other transactions contemplated by this Agreement, ~~including by defending any such Action brought by any Governmental Entity to avoid~~ except with the ~~entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any Order that makes illegal, or prohibits the consummation of, the Sale or~~ prior written consent of the other ~~transactions contemplated by this Agreement resulting from any such Action~~party, which consent shall not be unreasonably withheld or delayed. (eh) ~~Notwithstanding any~~ Prior to the Closing, each of the parties hereto agrees to negotiate in good faith with the other ~~provision of this Agreement, Purchaser shall, and shall cause its controlled Affiliates,~~ parties hereto in order to use reasonable best efforts to take all 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, agreeing to, committing to and effecting, by consent decree, hold separate Orderenter into, or ~~otherwise~~have a subsidiary enter into, a lease agreement, containing fair market terms and conditions, relating to the facilities set forth on Schedule 5.06(h) of the Seller Disclosure Letter (such facilities, the sale, divestiture or disposition of any businesses, product lines or assets of the Transferred Entities, and Purchaser, and (ii) otherwise taking or committing to take actions, or agreeing to restrictions, that after the Closing would limit the Transferred Entities’, or Purchaser’s freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred Entities or Purchaser (such actions contemplated in clauses (i) and (ii), “~~Remedial Actions~~Leased Facilities”); provided, however, and notwithstanding the foregoing or anything to the contrary herein, nothing in this Agreement shall be construed (y) to require Purchaser or its Affiliates (or permit Seller, the Transferred Entities, or any of their respective Affiliates) to offer, propose, take, negotiate, commit to, effect or agree to take any Remedial Action if such action, individually or in the aggregate with all other such actions taken together, would reasonably be expected to have a material adverse effect on the financial condition or results of the operations of the Transferred Entities, taken as a whole (it being understood, for purposes of determining whether such Remedial Action would reasonably be expected to have such a material adverse effect, any proceeds received, or expected to be received, from effecting any Remedial Action shall not be taken into consideration) or (z) to require Purchaser to commit to take or agree to take any such Remedial Actions which would bind Purchaser or its Affiliates in respect of any matter if the Closing does not occur. No actions taken pursuant to this Section 6.3(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occur. (f) Whether or not the Sale is consummated, Purchaser shall be responsible for all filing fees, including filing fees under the HSR Act, due to any Governmental Entity to obtain any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section 6.3.

Appears in 1 contract

Sources: Asset Purchase Agreement (Elan Corp PLC)

Required Actions. (a) ~~Purchaser~~ Purchaser, New CommerceOne and ~~Seller~~ Parent shall, and shall cause their Affiliates to, use ~~their respective~~ reasonable best efforts to ~~take, or cause to be taken,~~ take all actions, and do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to cause all conditions set forth in Article IX to be satisfied and to consummate and make effective in an the most expeditious manner possible the ~~Sale~~ Sale, the Mergers and the other transactions contemplated by this Agreement, including (i) the preparation and filing of all forms, ~~registrations~~ registrations, notifications and notices required to be filed to consummate the Sale and the other transactions contemplated by this ~~Agreement and~~ 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 ~~(“Regulatory Approvals”) (which actions shall include furnishing all information required under any Regulatory Laws)~~ required to be obtained or made by ~~Purchaser~~ Purchaser, New CommerceOne or ~~Seller~~ Parent or any of their respective Affiliates in connection with the ~~Sale~~ Sale, the Mergers and the other transactions contemplated by this Agreement ~~or that otherwise become applicable~~ and (iii) the execution and delivery of any additional instruments necessary to consummate the Sale, the Mergers and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement. ~~Additionally~~Neither Purchaser, ~~each of Seller and Purchaser shall take, or cause to be taken, all actions~~New CommerceOne nor Parent shall, and ~~do, or cause to be done, all things necessary, proper or advisable under any applicable Laws to fulfill all conditions precedent to this Agreement as promptly as practicable and shall not (and~~ each ~~of the Seller and Purchaser~~ shall cause ~~Purchaser Sponsor,~~ its ~~controlled~~ Affiliates ~~and Representatives~~ not to) , take any action after the date of this Agreement that would reasonably be expected to ~~(A) materially prevent,~~ delay ~~or impede~~ the obtaining of, or result in not obtaining, any ~~Regulatory Approvals required~~ 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 ~~made by Purchaser~~ prior to the Closing or ~~Seller~~would reasonably be expected to result in the failure to satisfy, or any ~~of their respective Affiliates~~ delay in ~~connection with the Sale and the other transactions contemplated by this Agreement~~satisfying, ~~or (B) otherwise cause~~ any ~~of the conditions~~ condition set forth in Article IX IX, including acquiring or agreeing to acquire, by merger, consolidation, stock or asset purchase or otherwise, any business or corporation, partnership or other business organization or division thereof, or pursue or engage in any merger, business combination, consolidation, acquisition, sale or similar transaction with any other Person, or agreeing to, soliciting, offering, proposing or recommending any of ~~this Agreement~~ the foregoing, to ~~fail~~ the extent it would reasonably be expected to delay the obtaining of, or result in not obtaining, any consent, clearance, expiration or termination of a waiting period, authorization, Order or approval of, or any exemption by, any Governmental Entity necessary to be ~~satisfied~~ obtained at or ~~prevent~~prior to the Closing or would reasonably be expected to result in the failure to satisfy, or any delay in satisfying, any condition set forth in Article IX. For avoidance of doubt, any action taken by New CommerceOne or ~~impede~~ Parent or their respective Affiliates pursuant to and consistent with the ~~consummation~~ terms of the ~~Sale or any other transaction contemplated by this Agreement~~Merger Agreement shall not be deemed a breach of the foregoing. (b) Prior to the Closing, to the extent not prohibited by applicable Law, ~~Purchaser~~ Purchaser, New CommerceOne and ~~Seller~~ Parent shall each keep the other apprised of the status of matters relating to the completion of the Sale and the other transactions contemplated by this Agreement, including the expiration or termination of the waiting period applicable to the Sale and the other transactions contemplated by this Agreement under the HSR Act or any other applicable Competition Laws, and work cooperatively in connection with obtaining all required ~~Regulatory Approvals. In that regard~~consents, ~~prior to the Closing~~clearances, ~~subject to the Confidentiality Agreement and Section 6.2~~expirations or terminations of waiting periods, ~~to the extent not prohibited by applicable Law~~authorizations, ~~each of Seller and Purchaser shall promptly consult with the other party to provide~~ Orders or approvals of, or any ~~necessary information with respect to all filings made by such party with~~ exemptions by, any Governmental Entity ~~or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement,~~ relating to the completion of the Sale and the other transactions contemplated by this Agreement. ~~Subject to the Confidentiality Agreement and Section 6.2, to the extent not prohibited by applicable Law~~In that regard, each party shall (i) promptly provide any information and assistance as the other party may reasonably request with respect to all notices, submissions or filings made by or on behalf of such party or any of its Affiliates with any Governmental Entity in connection with this ~~Agreement shall~~ Agreement, the Sale, the Mergers and the other transactions contemplated by this Agreement, and (ii) promptly inform the other party to this Agreement, ~~and~~ and, if in writing, furnish the other party with copies of (or, in the case of oral communications, advise the other party of) any communication from or to any Governmental Entity ~~or other such Person~~ regarding the Sale or the other transactions contemplated by this Agreement, and permit the other party to review and discuss ~~reasonably~~ in advance, and consider in good faith the views of the other party in connection with, any proposed written or oral ~~communication, correspondence~~ communication or submission with or to any such Governmental ~~Entity or other such Person~~Entity. If any party to this Agreement or any Representative of such party receives a request for additional information or documentary material from any Governmental Entity with respect to the Sale or the other transactions contemplated by this AgreementNeither Purchaser, then such party will make, or cause to be made, promptly and after consultation with the other party to this Agreement, an appropriate response in compliance with such request. Purchaser or its Representatives, on one hand, and Seller or its Representatives, on the other hand, New CommerceOne nor Parent shall ~~not~~ participate in any meeting with any Governmental Entity in connection with this Agreement or the Sale, or with any other Person in connection with any proceeding or Action by a private party relating to the HSR Act or any ~~Regulatory~~ other applicable Competition Laws in connection with this Agreement or the Sale, or make oral submissions at meetings or in telephone or other conversations, unless it consults with the other party ~~reasonably~~ in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate thereat. ~~Purchaser~~ Notwithstanding the foregoing, Purchaser, New CommerceOne and ~~Seller~~ 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 any materials~~ provided by Purchaser to ~~Seller~~ Parent or New CommerceOne, New CommerceOne to Purchaser or Parent or by ~~Seller~~ Parent to Purchaser or New CommerceOne pursuant to this Section 6.3, and the information contained therein, shall be given only to the outside legal counsel of the recipient and shall not be disclosed by such outside counsel to ~~employees (other than in-house counsel)~~employees, officers or directors of the ~~recipient,~~ recipient unless express permission is obtained in advance from the source of the materials (~~Purchaser~~ Purchaser, New CommerceOne or ~~Seller~~Parent, as the case may be~~) or its legal counsel~~); it being understood that materials provided pursuant to this Agreement may be redacted (i) to remove references concerning the valuation of the ~~Business~~Business or the Sale Process, (ii) as necessary to comply with contractual ~~obligations~~ arrangements or applicable Law and (iii) as necessary to ~~protect privileged attorney-client communications or attorney work product~~address reasonable privilege concerns. (c) ~~Purchaser~~ Purchaser, New CommerceOne and ~~Seller~~ Parent shall file or cause to be filed, any required notifications under the HSR Act as promptly as practicable, but in any event no later than ~~twenty-five (25) Business Days~~ thirty days after the date of this Agreement, ~~notifications~~ and will supply as promptly as practicable any additional information and documentary materials that may be required or advisable and to take all other actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR ~~Act, and Purchaser and Seller shall file or cause to be filed,~~ Act as promptly as practicable~~, any other filings and/or notifications under applicable Regulatory Laws~~. (d) ~~Purchaser~~ Purchaser, New CommerceOne and Parent shall, and shall cause their Affiliates to, use ~~its~~ their respective reasonable best efforts (including agreeing to amendments to this Agreement or any Ancillary Agreement) to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the ~~Sale~~ Sale, the Mergers and the other transactions contemplated by this Agreement under any ~~Regulatory~~ applicable Law, including the HSR Act and any other applicable Competition Laws. In connection therewith, if any Action is instituted (or threatened to be instituted) challenging this Agreement, the Sale or the other transactions contemplated by this Agreement as violative of any ~~Regulatory~~ applicable Law, including the HSR Act or any other applicable Competition Laws, ~~Purchaser~~ Purchaser, New CommerceOne and Parent shall jointly (to the extent practicable) use ~~its~~ their reasonable best efforts to initiate ~~and/or~~ and participate in any ~~Actions~~proceedings, whether judicial or administrative, in order to (i) oppose or defend against any Action by any Governmental Entity ~~to prevent~~ that would prevent, delay or enjoin the consummation of the Sale or the other transactions contemplated by this Agreement ~~and/or~~ and (ii) take such action as necessary to overturn any regulatory Action by any Governmental Entity the effect of which would be to block ~~the~~ consummation of the Sale or the other transactions contemplated by this Agreement, including by defending any such Action brought by any Governmental Entity in order to avoid the entry of, or to have vacated, overturned or terminated, including by appeal if necessary, any Order that makes ~~illegal,~~ illegal or prohibits the consummation ~~of,~~ of the Sale or the other transactions contemplated by this Agreement resulting from any such Action. Notwithstanding the foregoing, nothing contained in this Section 6.3(d) shall be deemed to require (1) Parent or New CommerceOne or any of their respective Affiliates to take, and neither Parent nor New CommerceOne or any of their respective Affiliates shall be permitted (without the written consent of the other) to take, any action, or commit to take any action, that (A) would reasonably be expected to have a material adverse effect on New CommerceOne and its Subsidiaries, taken as a whole, after giving effect to the Mergers, the Conversion, the Distribution, the Sale and other transactions contemplated by this Agreement and the Merger Agreement, or (B) is not conditioned on the Closing or (2) Purchaser or any of its Affiliates to take any action, or commit to take any action, that (A) would reasonably be expected to have a Business Material Adverse Effect after giving effect to the Sale and other transactions contemplated by this Agreement, or (B) is not conditioned on the Closing. (e) ~~Notwithstanding~~ Purchaser agrees to provide such security and assurances as to financial capability, resources and creditworthiness as may be reasonably requested by any Governmental Entity or other ~~provision of this Agreement, Purchaser shall, and shall~~ third party so as to cause ~~its controlled Affiliates,~~ the conditions in Article IX to ~~use reasonable best efforts to take all actions necessary to avoid or eliminate each and every impediment under any Regulatory Laws~~ be satisfied so as to enable the Closing to occur as promptly as practicable (and in any event no later than the Outside Date), including (i) proposing, negotiating, agreeing to, committing to and effecting, by consent decree, hold separate Order, or otherwise, the sale, divestiture or disposition of any businesses, product lines or assets of the Transferred Entities, and Purchaser, and (ii) otherwise taking or committing to take actions, or agreeing to restrictions, that after the Closing would limit the Transferred Entities’, or Purchaser’s freedom of action with respect to, or its or their ability to retain, any businesses, product lines or assets of the Transferred Entities or Purchaser (such actions contemplated in clauses (i) and (ii), “Remedial Actions”); provided, however, and notwithstanding the foregoing or anything to the contrary herein, nothing in this Agreement shall be construed (y) to require Purchaser or its Affiliates (or permit Seller, the Transferred Entities, or any of their respective Affiliates) to offer, propose, take, negotiate, commit to, effect or agree to take any Remedial Action if such action, individually or in the aggregate with all other such actions taken together, would reasonably be expected to have a material adverse effect on the financial condition or results of the operations of the Transferred Entities, taken as a whole (it being understood, for purposes of determining whether such Remedial Action would reasonably be expected to have such a material adverse effect, any proceeds received, or expected to be received, from effecting any Remedial Action shall not be taken into consideration) or (z) to require Purchaser to commit to take or agree to take any such Remedial Actions which would bind Purchaser or its Affiliates in respect of any matter if the Closing does not occurpracticable. ~~No actions taken pursuant to this Section 6.3(e) shall be considered for purposes of determining whether a Business Material Adverse Effect has occurred or may occur. (f)~~ Whether or not the Sale is consummated, Purchaser shall be responsible for all ~~filing fees,~~ fees and payments (including filing fees ~~under the HSR Act~~and legal, ~~due~~ economist and other professional fees) to any third party or any Governmental Entity in order to obtain any consent, finding of suitability, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Section 6.3, other than the fees of and payments to Parent’s legal and professional advisors.

Appears in 1 contract

Sources: Separation Agreement (Green Dot Corp)

Common use of Required Actions Clause in Contracts