Satisfaction of the Conditions. 4.1 Unless and until this Agreement is validly terminated in accordance with Clause 16 (and without prejudice to the additional covenants and agreements set forth herein), each party shall to the extent required of it, in accordance with the terms and conditions herein, (i) use its reasonable endeavours to achieve satisfaction of the Conditions as promptly as practicable and to implement the Merger and each stage thereof in accordance with the Timetable and (ii) not take or permit to be taken, and procure that none of their Representatives take or permit to be taken, any action that could reasonably be expected to adversely affect the satisfaction of any Condition. 4.2 With respect to the Antitrust Clearances that are required for the satisfaction of the Conditions, it is agreed that: (a) without prejudice to the other provisions of this Clause 4.2, the parties shall use their reasonable endeavours to procure that the Antitrust Condition is fulfilled before the Longstop Date (and shall agree to extend the Longstop Date by a period of not less than 180 days if the Antitrust Clearances have not been received by 31 December 2015); (b) the parties shall cooperate with each other in order to allow the party or parties under an obligation to notify to make the necessary filings, and to ensure that all information necessary or desirable for the making of (or responding to any requests for further information and other enquiries) any filings (including draft versions) is supplied accurately, promptly, diligently and to the best of each party’s ability or knowledge and is not intentionally misleading or incomplete; and (c) the party or parties under an obligation to notify shall: (i) unless otherwise agreed between them, commence any pre-notification processes, as applicable, in respect of the filings required to satisfy the Antitrust Condition as soon as reasonably practicable following the date of this Agreement; (ii) where a filing of only one party is required or made, notify the other party’s external counsel sufficiently in advance of any notification, submission, response or other communication (excluding communications of an administrative nature) which it proposes to make or submit to any Relevant Antitrust Authority and at the same time provide the other party’s external counsel with copies thereof and any supporting documentation or information reasonably requested by the other party’s external counsel; (iii) where a filing of only one party is required or made, subject to Clause 4.2(c)(ii), on reasonable request, provide the other party with information and documents relating to its business, as well as reasonable access to its management and employees, both to the extent reasonably necessary or desirable to facilitate the parties’ ability to satisfy the Antitrust Condition, provided that such information and documents are not materially misleading or incomplete as far as the party is aware; (iv) where a filing of only one party is required or made, provide the other party with a reasonable opportunity to provide comments on drafts of any filings or other material documentation or material oral representations prior to their submission to the Relevant Antitrust Authority and reasonably reflect such comments in any filing or other material documentation or material oral representations to the Relevant Antitrust Authority (it being acknowledged that certain such drafts and/or documents may be shared on a confidential outside counsel to outside counsel basis only); (v) where a filing of only one party is required or made, submit no filings or other material documentation or material oral representations to a Relevant Antitrust Authority in relation to a filing made jointly by Telecity and Interxion without reasonably reflecting the views of the other party; (vi) where a filing of only one party is required or made, without prejudice to the provisions of this Agreement, in particular Clause 4.4(d), not withdraw a filing made to a Relevant Antitrust Authority; (vii) where a filing of only one party is required or made, give the other party and its advisers reasonable notice of and reasonable opportunity to participate, where appropriate, in all meetings, and material communications and material conferences with a Relevant Antitrust Authority to the extent not prohibited by applicable Laws; (viii) where a filing of only one party is required or made, respond as soon as reasonably practicable to all inquiries received from a Relevant Antitrust Authority for additional information or documentation and supplement such filings as reasonably requested by a Relevant Antitrust Authority, and to keep the other party informed of material contact with the Relevant Antitrust Authority and, to the extent not prohibited by applicable Laws, provide the other party with copies of all material relevant documentation in relation thereto (to the extent such information relates to the party’s Group); and (ix) notify the other party forthwith after receipt of each such Antitrust Clearance required to satisfy the Antitrust Condition and provide such information as the other party may reasonably require in respect of the satisfaction of such Condition, PROVIDED THAT nothing in this Clause 4.2 shall require either party to provide the other with any confidential information or business secrets other than in accordance with the Clean Team Agreement. 4.3 Each party undertakes to the other party to cooperate in good faith using its reasonable endeavours in relation to obtaining any and all Clearances and satisfying any and all obligations in connection with the Merger and, in particular (to the extent that such steps have not already been taken prior to the date hereof and to the extent permissible under applicable Laws): (a) to make, within any relevant time limit, all such filings with any appropriate Governmental Authorities, jointly or separately, as are necessary or desirable for the purposes of obtaining such Clearances; (b) to provide, in agreement with the other party, drafts of any written communications or other such information and assistance as may be reasonably requested by a Governmental Authority or by a party making a filing to a Governmental Authority in connection with such Clearances, and to make such amendments and provide such supporting documentation as the other party reasonably requires; and (c) to notify promptly the other party of, and provide copies of, any material communications with a Governmental Authority in connection with the obtaining of such Clearances, save in respect of any information the disclosure of which would, in the reasonable opinion of the party concerned, adversely affect its legitimate business interests. 4.4 Each party undertakes to: (a) keep the other informed promptly of developments which are material or potentially material to the obtaining of the Clearances which would materially affect the implementation of the Merger; (b) promptly notify the other in writing of satisfaction of a Condition other than the Antitrust Condition and to keep the other informed of any material development of which it becomes aware that may lead to the breach or non-fulfilment of a Condition other than the Antitrust Condition; (c) immediately give written notice to the other of a breach or non-fulfilment of a Condition other than the Antitrust Condition, or of any event which will, or is reasonably likely to, prevent a Condition other than the Antitrust Condition being satisfied; and (d) where the party is entitled to waive the relevant Condition, upon receipt of a notice given under sub-clause (c), give written notice to the other party before 8.00 a.m. on the Longstop Date as to whether or not it waives the Condition resulting from the occurrence of that event, specifying the Condition in question. 4.5 Except to the extent otherwise agreed between the parties in writing, Telecity and Interxion shall not be required to agree to, and shall not agree to, any material conditions, restrictions, or divestments required by a Relevant Antitrust Authority in order to obtain or as a condition to obtaining the Antitrust Clearances which shall, in aggregate: (i) materially impair the benefits or advantages the parties expect to receive from the Merger or (ii) materially impair the ability of the parties to implement the business plan or business strategy of the post-Merger group. 4.6 If: (a) there is a breach or non-fulfilment of a Condition, other than the Antitrust Condition, which is not waived in accordance with this Agreement by the time or date specified in this Agreement for the satisfaction of such Condition; (b) there is an act, failure to act or occurrence which will prevent a Condition, other than the Antitrust Condition, being satisfied by the time or date specified in this Agreement for the satisfaction of such Condition (and the breach or non-fulfilment which would otherwise occur has not already been waived in accordance with this Agreement); or (c) the Merger has not been implemented by the Longstop Date, then the parties shall discuss whether: (i) the Offer may proceed by way of alternative means or methods; or (ii) to extend the Longstop Date, it being acknowledged that any such decision shall require the agreement of both parties.
Appears in 1 contract
Satisfaction of the Conditions. 4.1 Unless and until this Agreement is validly terminated in accordance with Clause 16 (and without prejudice to 5.1 In respect of the additional covenants and agreements set forth herein), each party Conditions:
5.1.1 the Purchaser shall to the extent required of it, in accordance with the terms and conditions herein, (i) use its all reasonable endeavours to achieve satisfaction of the Conditions as promptly as practicable and Shareholder Approval Condition, the FCA Admission Condition, the LSE Admission Condition, the Creditor Consent Condition; and
5.1.2 subject to implement clause 5.2, each party shall use all reasonable endeavours to achieve satisfaction of each Antitrust Condition, the Merger Circular Condition, the Whitewash Condition and each stage thereof Regulatory Condition, in each case as soon as possible after the Announcement Date and in any event not later than 17.00 on the Longstop Date.
5.2 If any decision by or consent decree with a Regulatory Authority in respect of an Antitrust Condition or Regulatory Condition is made subject to certain conditions, undertakings, orders or commitments, each of the parties shall take, or cause to be taken, all necessary or advisable steps (and, if required to fulfil any condition, undertaking, order or commitment imposed or requested by a Regulatory Authority in respect of an Antitrust Condition or Regulatory Condition, taking or committing to take any action (including providing behavioural commitments and effecting any sale, disposal, transfer, licensing, disposition or hold separate (through the establishment of a trust or otherwise)) with respect to any business, asset, right, licence (including the Interests), property, operation or agreement of the Group, to obtain as soon as reasonably practicable (and in any event, so as to enable Completion to occur on or before the Longstop Date) the approval required to satisfy each Antitrust Condition or Regulatory Condition, provided that neither the Company nor the Purchaser shall be obliged to take any steps to the extent they would have a material adverse effect on the business of (as applicable) the Group as a whole or the Purchaser Group as a whole.
5.3 Without prejudice to clause 5.1, the Purchaser shall:
5.3.1 provide the Proposed Purchaser Directors with all such information as they may reasonably require in order to satisfy their legal and regulatory obligations (including taking responsibility for the Purchaser Circular in accordance with the Timetable Prospectus Regulation Rules) in connection with the Purchaser Circular or its preparation;
5.3.2 to the extent reasonably practicable, consult with the Harbour/Chrysaor Parties as to the form and content of the Purchaser Circular, any Purchaser Supplementary Circular, the Purchaser Practice Statement Letter and the Purchaser Explanatory Statement, provided that the final form of the Purchaser Circular, any Purchaser Supplementary Circular, the Purchaser Practice Statement Letter and the Purchaser Explanatory Statement shall be subject to the prior written approval of the Harbour/Chrysaor Parties (ii) such approval not take or permit to be takenunreasonably conditioned, and procure that none of their Representatives take withheld or permit to be taken, any action that could reasonably be expected to adversely affect the satisfaction of any Condition.delayed);
4.2 With respect to the Antitrust Clearances that are required for the satisfaction of the Conditions, it is agreed that:
(a) without prejudice to the other provisions of this Clause 4.2, the parties shall 5.3.3 use their all reasonable endeavours to procure that the Antitrust Condition is fulfilled before Purchaser Directors accept responsibility for the Longstop Date (Purchaser Circular in accordance with the Prospectus Regulation Rules, the Listing Rules and shall agree to extend the Longstop Date by a period of not less than 180 days if the Antitrust Clearances have not been received by 31 December 2015)Code;
(b) 5.3.4 procure that the parties Purchaser Circular shall cooperate incorporate the Purchaser Directors Recommendation and that such recommendation is not withdrawn, modified or qualified;
5.3.5 procure that the terms of the Purchaser Circular will convene the Purchaser General Meeting for a date which is no later than the date falling 30 clear days after the date on which the Purchaser Circular is despatched to the Purchaser Shareholders or such other date as the Purchaser and the Company may agree in writing;
5.3.6 subject to the Harbour/Chrysaor Parties complying with each other in order to allow the party or parties their obligations under an obligation to notify to make the necessary filingsclause 5.6.1 and providing any approvals required under clause 5.3.2, and to ensure that all information necessary or desirable the Proposed Purchaser Directors taking responsibility for the making of (or responding Purchaser Circular in accordance with the Prospectus Regulation Rules, prepare and finalise the Purchaser Circular and use all reasonable endeavours to any requests for further information and other enquiries) any filings (including draft versions) is supplied accurately, promptly, diligently and to obtain the best of each party’s ability or knowledge and is not intentionally misleading or incomplete; and
(c) the party or parties under an obligation to notify shall:
(i) unless otherwise agreed between them, commence any pre-notification processes, as applicable, in respect approval of the filings required to satisfy Purchaser Circular from the Antitrust Condition FCA as soon as reasonably practicable following practicable, provided that (for the date avoidance of doubt) the Purchaser shall not be in breach of this Agreement;
(ii) where a filing of only one party is required or made, notify the other party’s external counsel sufficiently in advance of any notification, submission, response or other communication (excluding communications of an administrative nature) which it proposes to make or submit to any Relevant Antitrust Authority and at the same time provide the other party’s external counsel with copies thereof and any supporting documentation or information reasonably requested by the other party’s external counsel;
(iii) where a filing of only one party is required or made, subject to Clause 4.2(c)(ii), on reasonable request, provide the other party with information and documents relating to its business, as well as reasonable access to its management and employees, both clause 5.3.6 to the extent reasonably necessary that delay is caused by the Harbour/Chrysaor Parties and/or the Proposed Purchaser Directors, a Chrysaor Working Capital Shortfall or desirable to facilitate the parties’ ability to satisfy the Antitrust Condition, provided that such information and documents are not materially misleading or incomplete as far as the party is awarea Chrysaor Ineligibility Event;
(iv) where a filing of only one party is required or made, provide the other party with a reasonable opportunity to provide comments on drafts of any filings or other material documentation or material oral representations prior to their submission 5.3.7 subject to the Relevant Antitrust Authority Purchaser Circular being finalised and reasonably reflect such comments in any filing or other material documentation or material oral representations to approved by the Relevant Antitrust Authority (it being acknowledged that certain such drafts and/or documents may be shared on a confidential outside counsel to outside counsel basis only);
(v) where a filing of only one party is required or made, submit no filings or other material documentation or material oral representations to a Relevant Antitrust Authority in relation to a filing made jointly by Telecity and Interxion without reasonably reflecting the views of the other party;
(vi) where a filing of only one party is required or made, without prejudice to the provisions of this Agreement, in particular Clause 4.4(d), not withdraw a filing made to a Relevant Antitrust Authority;
(vii) where a filing of only one party is required or made, give the other party and its advisers reasonable notice of and reasonable opportunity to participate, where appropriate, in all meetings, and material communications and material conferences with a Relevant Antitrust Authority to the extent not prohibited by applicable Laws;
(viii) where a filing of only one party is required or made, respond as soon as reasonably practicable to all inquiries received from a Relevant Antitrust Authority for additional information or documentation and supplement such filings as reasonably requested by a Relevant Antitrust Authority, and to keep the other party informed of material contact with the Relevant Antitrust Authority and, to the extent not prohibited by applicable Laws, provide the other party with copies of all material relevant documentation in relation thereto (to the extent such information relates to the party’s Group); and
(ix) notify the other party forthwith after receipt of each such Antitrust Clearance required to satisfy the Antitrust Condition and provide such information as the other party may reasonably require in respect of the satisfaction of such Condition, PROVIDED THAT nothing in this Clause 4.2 shall require either party to provide the other with any confidential information or business secrets other than FCA in accordance with the Clean Team Agreement.
4.3 Each party undertakes Listing Rules and the Prospectus Regulation Rules, as soon as possible following such approval publish and despatch to the other party to cooperate Purchaser Shareholders the Purchaser Circular in good faith using its reasonable endeavours in relation to obtaining any and all Clearances and satisfying any and all obligations in connection accordance with the Merger andListing Rules and the Prospectus Regulation Rules in order to, in particular (to amongst other things, convene the extent that such steps have not already been taken prior to the date hereof and to the extent permissible under applicable Laws):
(a) to make, within any relevant time limit, all such filings with any appropriate Governmental Authorities, jointly or separately, as are necessary or desirable Purchaser General Meeting for the purposes of obtaining such Clearancesconsidering and, if thought fit, passing the Purchaser Resolutions;
(b) to provide, in agreement with the other party, drafts of any written communications or other such information and assistance as may be reasonably requested by a Governmental Authority or by a party making a filing to a Governmental Authority in connection with such Clearances, and to make such amendments and provide such supporting documentation as the other party reasonably requires; and
(c) to notify promptly the other party of, and provide copies of, any material communications with a Governmental Authority in connection with the obtaining of such Clearances, save in respect of any information the disclosure of which would, in the reasonable opinion of the party concerned, adversely affect its legitimate business interests.
4.4 Each party undertakes to5.3.8 not:
(a) keep the other informed promptly of developments which are material or potentially material to the obtaining of the Clearances which would materially affect the implementation of the Merger;
(b) promptly notify the other in writing of satisfaction of a Condition other than the Antitrust Condition and to keep the other informed of any material development of which it becomes aware that may lead to the breach or non-fulfilment of a Condition other than the Antitrust Condition;
(c) immediately give written notice to the other of a breach or non-fulfilment of a Condition other than the Antitrust Condition, or of any event which will, or is reasonably likely to, prevent a Condition other than the Antitrust Condition being satisfied; and
(d) where the party is entitled to waive the relevant Condition, upon receipt of a notice given under sub-clause (c), give written notice to the other party before 8.00 a.m. on the Longstop Date as to whether or not it waives the Condition resulting from the occurrence of that event, specifying the Condition in question.
4.5 Except to the extent otherwise agreed between the parties in writing, Telecity and Interxion shall not be required to agree to, and shall not agree to, any material conditions, restrictions, or divestments required by a Relevant Antitrust Authority in order to obtain or as a condition to obtaining the Antitrust Clearances which shall, in aggregate: (i) materially impair the benefits or advantages the parties expect to receive from the Merger or (ii) materially impair the ability of the parties to implement the business plan or business strategy of the post-Merger group.
4.6 If:
(a) there is a breach or non-fulfilment of a Condition, other than the Antitrust Condition, which is not waived in accordance with this Agreement by the time or date specified in this Agreement for the satisfaction of such Condition;
(b) there is an act, failure to act or occurrence which will prevent a Condition, other than the Antitrust Condition, being satisfied by the time or date specified in this Agreement for the satisfaction of such Condition (and the breach or non-fulfilment which would otherwise occur has not already been waived in accordance with this Agreement); or
(c) the Merger has not been implemented by the Longstop Date, then the parties shall discuss whether: (i) the Offer may proceed by way of alternative means or methods; or (ii) to extend the Longstop Date, it being acknowledged that any such decision shall require the agreement of both parties.
Appears in 1 contract
Sources: Merger Agreement