Stockholders of Plains filed suit to enjoin the Merger, alleging that Flores was conflicted, that the Board abdicated its duties and that it should have formed a special committee , and that the Board breached its Revlon duties by, among other things, failing to 1 shop the company, 2 seek a go-shop period, and 3 conduct a pre- or post-signing market check. Plaintiffs also contended that there were other misleading and inadequate disclosures in connection with the methodologies and inputs that Barclays used.
The Court first explained that the Board engaged in a reasonable negotiation and decision-making process, notwithstanding its decisions to not form a special committee and to allow Flores to run the negotiations; the Court reasoned, first, that seven of the eight directors on the Board were indisputably disinterested and independent, and, second, that Flores was properly overseen by the Board and his significant ownership of Plains stock aligned his interests with those of the stockholders generally.
The Court also noted that the deal protections to which the Board agreed were not onerous and would not unduly impede a topping bid. Careers Search. May 9, Noble As of , its core holdings were gas fields in Wyoming and Colorado; oil and gas fields in Texas, Louisiana, and the Gulf of Mexico; and oil fields in California, both onshore and offshore.
Many of its active operations were in the Los Angeles basin directly underneath Los Angeles and adjacent cities.
Plains reported 2, active oil wells in in California alone. A joint venture in with partner Chesapeake Energy gave Plains a strong position in the development of the Haynesville shale gas play in northwestern Louisiana as well as extreme eastern Texas and southwestern Arkansas.
At the end of , Plains had , acres km 2 and 50 drilling rigs in conjunction with Chesapeake. Plains attempted to negotiate a complex compromise deal in Santa Barbara County with environmental groups and state regulators in which the firm would be able to drill into the undeveloped Tranquillon Ridge, off the western coast of the county, in return for decommissioning and doing environmental restoration on the old and mostly played-out Lompoc Oil Field , which consists of approximately 3, acres 15 km 2 of ecologically-sensitive habitat adjacent to the Burton Mesa Ecological Preserve.
As part of the deal, Plains would have drilled into Tranquillon Ridge only from their existing Platform Irene, and would have retired the platform entirely in The County Board of Supervisors voted to approve the project and sent it on to the State Lands Commission, which rejected it by a 2 to 1 vote on January 29, , citing the unenforcability of the sunset clause. In May , however, California Governor Arnold Schwarzenegger revived the project by including it in a revised budget proposal.
Each of the Surviving Company, Parent and the Exchange Agent without duplication shall be entitled to deduct and withhold from the consideration otherwise payable to any holder of a Certificate or Book-Entry Share or any holder of any Company Stock Awards pursuant to this Agreement such amounts as may be required to.
Any amounts so deducted, withheld and paid over to the appropriate Taxing Authority shall be treated for all purposes of this Agreement as having been paid to the holder of the Certificate or Book-Entry Share in respect of which such deduction or withholding was made. If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Certificate to be lost, stolen or destroyed and, if required by Parent or the Exchange Agent, the posting by such person of a bond in such amount as Parent or the Exchange Agent may determine is reasonably necessary as indemnity against any claim that may be made against it or the Surviving Company with respect to such Certificate, the Exchange Agent or, if subsequent to the termination of the Exchange Fund and subject to Section 2.
All Company RSUs that have been granted or contractually promised by the Company as of the date of this Agreement and that remain or become outstanding as of immediately prior to or upon the Effective Time, including, for the avoidance of doubt, each Company RSU that will become issuable or creditable in connection with the consummation of the Merger pursuant to any employment agreement, restricted stock unit agreement or other written agreement including, for the avoidance of doubt, that certain Long-Term Retention and Deferred Compensation Agreement between the Company and each employee identified in Section 2.
Each Company Restricted Share that is outstanding immediately prior to the Effective Time shall, as of the Effective Time, i vest in full, ii be deemed to constitute fully vested shares of Company Common Stock, and iii be converted into, and canceled in exchange for, the right to receive the Merger Consideration pursuant to Section 2.
Each compensatory equity award that is granted or issued by the Company after the date of this Agreement pursuant to Section 5. If at any time before or after the Effective Time, Parent or the Company reasonably believes or is advised that any further instruments, deeds, assignments or assurances are reasonably necessary or desirable to consummate the Merger or to carry out the purposes and intent of this Agreement at or after the Effective Time, then Parent, Merger Sub, the Company and the Surviving Company and their respective officers and directors shall execute and deliver all such proper instruments, deeds, assignments or assurances and do all other things reasonably necessary or desirable to consummate the Merger and to carry out the purposes and intent of this Agreement.
Each of the Company and its Subsidiaries is duly qualified or licensed, and has all necessary governmental approvals, to do business and is in good standing as a foreign entity in each jurisdiction in which the property owned, leased or operated by it or the nature of the business conducted by it makes such approvals, qualification or licensing necessary, except where the failure to be so duly approved, qualified or licensed and in good standing would not have, individually or in the aggregate, a Company Material Adverse Effect.
The Company has made available prior to the date of this Agreement true and complete copies of the minute books of the Company and each material Subsidiary of the Company, which copies contain true and complete records of all meetings and other corporate actions held or taken since December 31, of their respective stockholders and boards of directors or similar governing bodies including committees of their respective stockholders and boards of directors or similar governing bodies ; provided , however , that i the Company has redacted such materials to the extent necessary to omit information concerning this Agreement or the transactions contemplated hereby and ii minutes of meetings that pertain solely to discussion of this Agreement or the transactions contemplated hereby have not been provided.
As of December 3, , there were i ,, shares of Company Common Stock issued and outstanding including Company Restricted Shares , ii 14,, shares of Company Common Stock held in treasury, iii no shares of Company Preferred Stock issued or outstanding, iv 3, shares of Company Common Stock issuable upon the exercise of.
All outstanding shares of Company Common Stock are, and shares of Company Common Stock reserved for issuance with respect to Company Stock Awards, when issued in accordance with the respective terms thereof, will be, duly authorized, validly issued, fully paid and nonassessable and free of preemptive rights. Except as set forth in this Section 3. No Subsidiary of the Company owns any shares of capital stock of the Company.
The execution and delivery of this Agreement and the other Company Transaction Documents and the consummation of the transactions contemplated hereby and thereby have been duly and validly authorized by the Board of Directors of the Company and, except for the Company Stockholder Approval assuming the accuracy of the representations and warranties set forth in Section 4.
Each of the Company Transaction Documents has been duly and validly executed. The Company has heretofore made available to Parent true, correct and complete copies of all written correspondence between the Company and the SEC occurring since January 1, The Company has established and maintains disclosure controls and procedures and internal control over financial reporting as such terms are defined in paragraphs e and f , respectively, of Rule 13a under the Exchange Act as required by Rule 13a under the Exchange Act.
There are no liabilities or obligations of the Company or any of its Subsidiaries, whether accrued, absolute, determined or contingent, that would be required by GAAP to be reflected on a consolidated balance sheet of the Company and its consolidated Subsidiaries including the notes thereto , except for i liabilities or obligations disclosed and provided for in the balance sheets included in the Company Financial Statements or the Pro Forma Financial Statements or in the notes thereto filed and publicly available prior to the date of this Agreement, ii liabilities or obligations incurred in accordance with or in connection with this Agreement, iii liabilities or obligations incurred since December 31, in the ordinary course of business, iv liabilities or obligations that have been discharged or paid in full and v liabilities or obligations that have not had and would not have, individually or in the aggregate, a Company Material Adverse Effect.
All Company Permits are valid and in full force and effect and are not subject to any administrative or judicial proceeding that could result in modification, termination or revocation thereof, except where the failure to be in full force and effect or any modification, termination or revocation thereof would not have, individually or in.
The Company and each of its Subsidiaries is in material compliance with the terms and requirements of all material Company Permits. Except as specifically provided in the foregoing documents delivered or made available to Parent, there are no amendments to any Company Benefit Plans that have been adopted or approved nor has the Company or any of its Subsidiaries undertaken to make any such amendments or to adopt or approve any new Company Benefit Plans.
No Company Benefit Plan is maintained outside the jurisdiction of the United States, or provides benefits or compensation to any employees or other service providers who reside or primarily provide services outside of the United States.
Neither the Company nor any of its Subsidiaries has taken any corrective action or made a filing under any voluntary correction program of the IRS, Department of Labor or any other Governmental Entity with respect to any Company Benefit Plan and neither the Company nor any of its Subsidiaries has any knowledge of any plan defect that would qualify for correction under any such program.
All contributions required to be made to any Company Benefit Plan by applicable Law or by any plan document or other contractual undertaking, and all premiums due or payable with respect to insurance policies funding any Company Benefit Plan, have been timely made or paid in full or, to the extent not required to be made or paid on or before the date hereof, have been fully reflected on the books and records of Company.
No trust funding any Company Benefit Plan is intended to meet the requirements of Code Section c 9. Except as set forth in Section 3. No prohibited transaction within the meaning of Section of ERISA or Section of the Code, other than a transaction that is exempt under a statutory or administrative exemption has occurred with respect to any Company Benefit Plan.
Investment Company. Public Utility Holding Company Act of Federal Energy Regulatory Commission under the Natural Gas Act of , as amended, and ii not subject to rate regulation or comprehensive nondiscriminatory access regulation under the laws of any state or other local jurisdiction.
Except as have not had and would not have, individually or in the aggregate, a Company Material Adverse Effect, i the Company and each of its Subsidiaries have prepared and timely filed taking into account any valid extension of time within which to file all Tax Returns required to be filed by any of them and all such Tax Returns are complete and accurate, ii the Company and each of its Subsidiaries have timely paid all Taxes that are required to be paid by any of them or that the Company or any of its Subsidiaries are obligated to withhold from amounts owing to any employee, creditor, stockholders or third party in each case, whether or not shown on any Tax Return , except with respect to matters contested in good faith through appropriate proceedings and for which adequate reserves have been established, in accordance with GAAP on the financial statements of the Company and its Subsidiaries, iii the U.
Neither the Company nor any of its Subsidiaries is a party to any collective bargaining agreement, labor union contract, or trade. No employee is represented by a labor organization for purposes of collective bargaining with respect to the Company or any of its Subsidiaries.
There is no pending charge or complaint against the Company or any of its Subsidiaries by the National Labor Relations Board or any comparable Governmental Entity, and none of the Company and its Subsidiaries is a party, or otherwise bound by, any consent decree with, or citation by, any Governmental Entity relating to employees or employment practices. The Company has complied with all laws regarding employment and employment practices, terms and conditions of employment and wages and hours including, without limitation, classification of employees and other laws in respect of any reduction in force, including without limitation, notice, information and consultation requirements, except where any such noncompliance could not reasonably be expected to result in a material liability to the Company or any of its Subsidiaries.
Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, i each Oil and Gas Lease to which the Company or any of its Subsidiaries is a party is valid and in full force and effect, ii none of the Company or any of its Subsidiaries has violated any provision of, or taken or failed to take any act which, with or without notice, lapse of time, or both, would constitute a default under the provisions of such Oil and Gas Lease, and iii none of the Company or any of its Subsidiaries has received written notice from the other party to any such Oil and Gas Lease that the Company or any of its Subsidiaries, as the case may be, has breached, violated or defaulted under any Oil and Gas Lease.
Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, A each Company Real Property Lease is valid, binding and in full force and effect, subject to the limitation of such enforcement by the Remedies Exceptions and B no uncured default of a material nature on the.
The Company and its Subsidiaries maintain insurance in such amounts and against such risks substantially as the Company believes to be customary for the industry in which it and its Subsidiaries operate.
Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, all insurance policies maintained by or on behalf of the Company or any of its Subsidiaries as of the date of this Agreement are in full force and effect, and all premiums due on such policies have been paid by the Company or its Subsidiaries.
Except as would not have, individually or in the aggregate, a Company Material Adverse Effect, the Company and its Subsidiaries are in compliance with the terms and provisions of all insurance policies maintained by or on behalf of the Company or any of its Subsidiaries as of the date of this Agreement, and neither the Company nor any of its Subsidiaries is in breach or default under, or has taken any action that could permit termination or material modification of, any material insurance policies.
The Company shall, promptly following the execution of this Agreement by all parties, furnish an accurate and complete copy of said opinion to Parent solely for informational purposes. Except for changes generally affecting the oil and gas exploration, development and production industry including changes in commodity prices and normal depletion by production, there has been no change in respect of the matters addressed in the Company Reserve Reports or the GOM Reserve Reports that, individually or in the aggregate, has had or would have a Company Material Adverse Effect.
The Company has made available to Parent a schedule of all Derivative Contracts to which the Company or any of its Subsidiaries is a party, other than any such Derivative Contract that expires by its terms on or before December 31, Except for Barclays Capital Inc.
Assuming the accuracy of the representations set forth in Section 4. Each of Parent and its Subsidiaries is duly qualified or licensed, and has all necessary governmental approvals, to do business and is in good standing as a foreign entity in each jurisdiction in which the property owned, leased or operated by it or the nature of the business conducted by it makes such approvals, qualification or licensing necessary, except where the failure to be so duly approved, qualified or licensed and in good standing would not have, individually or in the aggregate, a Parent Material Adverse Effect.
As of November 30, , i ,, shares of Parent Common Stock were issued and outstanding, ii ,, shares of Parent Common Stock were held in treasury, iii no shares of Parent Preferred Stock were issued or outstanding, iv 32,, shares of Parent Common Stock were available for grant under the Parent Stock Plans, v 31,, shares of Parent Common Stock are issuable upon the exercise of outstanding options and vi , shares of Parent Common Stock are issuable upon the settlement of outstanding restricted stock units and vii 39, are issuable pursuant to outstanding stock appreciation awards.
All outstanding shares of Parent Common Stock are, and shares of Parent Common Stock issued or reserved for issuance in connection with the Merger, when issued in accordance with the respective terms thereof, will be, duly authorized, validly issued, fully paid and nonassessable and free of preemptive rights.
Except as set forth in this Section 4. No Subsidiary of Parent owns any shares of capital stock of Parent. Neither Parent nor any of its Subsidiaries has any obligation to acquire any equity interest, security, right, agreement or commitment or to provide funds to or make any investment in the form of a loan, capital contribution or otherwise in, any person.
The Board of Directors of Parent, acting in accordance with the recommendation of the Parent Special Committee, has approved this Agreement and the Merger. Each of the Parent Transaction Documents has been duly and validly executed and delivered by Parent and Merger Sub and, assuming each such Parent Transaction Document constitutes the.
As of their respective dates or, if amended, as of. Parent has heretofore made available to the Company true, correct and complete copies of all written correspondence between Parent and the SEC occurring since January 1, Parent has established and maintains disclosure controls and procedures and internal control over financial reporting as such terms are defined in paragraphs e and f , respectively, of Rule 13a under the Exchange Act as required by Rule 13a under the Exchange Act.
There are no liabilities or obligations of Parent or any of its Subsidiaries, whether accrued, absolute, determined or contingent, that would be required by GAAP to be reflected on a consolidated balance sheet of Parent and its consolidated Subsidiaries including the notes thereto , except for i liabilities or obligations disclosed and provided for in the balance sheets included in the Parent Financial Statements or in the notes thereto filed and publicly available prior to the date of this Agreement, ii liabilities or obligations incurred in accordance with or in connection with this Agreement, iii liabilities or obligations that have been discharged or paid in full, and iv liabilities or obligations incurred since December 31, in the ordinary course of business and v liabilities or obligations that have not had and would not have, individually or in the aggregate, a Parent Material Adverse Effect.
All Parent Permits are valid and in full force and effect and are not subject to any administrative or judicial proceeding that could result in modification, termination or revocation thereof, except where the failure to be in full force and effect or any modification, termination or revocation thereof would not have, individually or in the aggregate,. Parent and each of its Subsidiaries is in material compliance with the terms and requirements of all material Parent Permits.
The information supplied or to be supplied by Parent for inclusion in the Form S-4 shall not, at the time the Form S-4 is declared effective by the SEC, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading, except that no representation or warranty is made by Parent with respect to statements made or incorporated by reference therein based on information supplied by the Company in writing expressly for inclusion therein.
In addition, except as would not have, individually or in the aggregate, a Parent Material Adverse Effect, Parent and its Subsidiaries have all necessary surface rights, water rights and rights in water, rights of way, licenses, easements, ingress, egress and access rights, and all other presently required rights and interests granting Parent and its Subsidiaries the rights and ability to explore for, mine, extract, remove or process the Minerals derived from the Mineral Rights or to transport for, milling, refinement, smelting or market or distribute or sell the Minerals produced at their milling, smelting and refining facilities.
No Parent U. Employee is represented by a labor organization for purposes of collective bargaining with respect to Parent or any of its Subsidiaries. Employees that may interfere in any material respect with the respective business activities of Parent or any of its Subsidiaries. There is no pending charge or complaint against Parent or any of its Subsidiaries by the National Labor Relations Board or any comparable Governmental Entity, and none of Parent and its Subsidiaries is a party, or otherwise bound by, any consent decree with, or citation by, any Governmental Entity relating to Parent U.
Employees or employment practices. Parent has complied with all laws regarding employment and employment practices, terms and conditions of employment and wages and hours including, without limitation, classification of employees and other laws in respect of any reduction in force, including without limitation, notice, information and consultation requirements, except where any such noncompliance could not reasonably be expected to result in a material liability to Parent or any of its Subsidiaries.
Parent and its Subsidiaries maintain insurance in such amounts and against such risks substantially as Parent believes to be customary for the industry in which it and its Subsidiaries operate. Except as would not have, individually or in the aggregate, a Parent Material Adverse Effect, all insurance policies maintained by or on behalf of Parent or any of its Subsidiaries as of the date of this Agreement are in full force and effect, and all premiums due on such policies have been paid by Parent or its Subsidiaries.
Except as would not have, individually or in the aggregate, a Parent Material Adverse Effect, Parent and its Subsidiaries are in compliance with the terms and provisions of all insurance policies maintained.
The qualitative and quantitative data regarding proven and probable reserves of Parent included in the Parent SEC Documents were derived in accordance with the procedures described therein and, in all material respects, all applicable industry standards, including Securities Act Industry Guide 7.
Since January 1, and except for changes generally affecting copper, gold and molybdenum mining including changes in commodity prices and fluctuations in demand for production and normal depletion by production, there has been no change in respect of the proven and probable reserves set forth in the Parent SEC Documents.
As of the date of this Agreement, Parent has no reason to believe that it or any other party thereto will be unable to satisfy any of the conditions to the Financing to be satisfied pursuant to each Commitment Letter on the Closing Date, provided that Parent is not making any representation or warranty regarding the effect of the inaccuracy of the representations or warranties set forth in Article III or non-compliance by the Company and its affiliates with their respective obligations hereunder on any such condition to the Financing.
Section 5. A shall not adopt any amendments to its certificate of incorporation or bylaws or similar applicable organizational documents, and shall not permit any of its Subsidiaries to adopt any amendments to its certificate of incorporation or bylaws or similar applicable organizational documents;. B shall not, and shall not permit any of its Subsidiaries to, split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock, except for any such transaction by a wholly owned Subsidiary of the Company which remains a wholly owned Subsidiary after consummation of such transaction;.
C except in the ordinary course of business, shall not, and shall not permit any of its Subsidiaries that is not wholly owned by the Company or wholly owned Subsidiaries of any such Subsidiaries to, authorize or pay any dividends on or make any distribution with respect to its outstanding shares of capital stock whether in cash, assets, stock or other securities of the Company or its Subsidiaries , except 1 dividends or distributions by any Subsidiaries only to the Company or to any Subsidiary of the Company in the ordinary course of business, and 2 dividends or distributions required under the applicable organizational documents of such entity in effect on the date of this Agreement;.
Subsidiaries to, make any acquisition of any other person or business or make loans, advances or capital contributions to, or investments in, any other person that would reasonably be expected to prevent, materially impede or materially delay the consummation of the Merger;. H shall not, and shall not permit any of its Subsidiaries to, enter into any new Contract to sell Hydrocarbons other than in the ordinary course of business consistent with past practice;.
I except as set forth in Section 5. J shall not, and shall not permit any of its Subsidiaries to, materially change financial accounting policies or procedures or any of its methods of reporting income, deductions or other material items for financial accounting purposes, except as required by GAAP, SEC rule or policy or applicable Law;.
N other than in the ordinary course of business, shall not, and shall not permit any of its Subsidiaries to, modify, amend or terminate, or waive any rights under any Company Material Contract or under any Company Permit, or enter into any new Contract which would be a Company Material Contract or which would reasonably be expected to, after the Effective Time, restrict or limit in any material respect Parent, the Company, the Surviving Company or any of their respective affiliates from engaging in any business or competing in any geographic location with any person;.
P shall not make, change or revoke any material Tax election, change any material tax accounting method, file any material amended Tax return, enter into any material closing agreement, request any material Tax ruling, settle or compromise any material Tax proceeding, or surrender any claim for a material refund of Taxes;.
R shall not, and shall not permit any of its Subsidiaries to, agree, in writing or otherwise, to take any of the foregoing actions that are prohibited pursuant to clauses A through Q of this Section 5. A except in each case as would not after application of Section 2.
B shall not adopt or implement a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of Parent;. C shall not, and shall not permit any of their respective Subsidiaries to, acquire shares of Company Common Stock; and. D shall not agree, in writing or otherwise, to take any of the foregoing actions that are prohibited pursuant to clauses A through C of this Section 5.
Notwithstanding the foregoing, neither party shall be required to afford such access if it would unreasonably disrupt the operations of such party or any of its Subsidiaries, would cause a violation of any agreement to which such party or any of its Subsidiaries is a party, would cause a risk of a loss of privilege to such party or any of its Subsidiaries or would constitute a violation of any applicable Law.
Except to the extent necessary to take any actions that the Company or any third party would otherwise be permitted to take pursuant to this Section 5. The Company agrees that it and its Subsidiaries will not enter into any agreement with any person subsequent to the date of this Agreement which prohibits the Company from providing any information to Parent in accordance with this Section 5.
Notwithstanding anything to the contrary set forth in this Agreement, prior to the time the Company Stockholder Approval is obtained, the Company Board of Directors may make a Company Adverse Recommendation Change if, after receiving a bona fide, unsolicited Company Takeover Proposal that did not result from a breach of Section 5.
Each of Parent and the Company shall use reasonable best efforts to have the Form S-4 declared effective under the Securities Act as promptly as reasonably practicable after such filing and to keep the Form S-4 effective as long as necessary to consummate the Merger and the other transactions contemplated hereby.
Parent shall also take any action required to be taken under any applicable state or provincial securities laws in connection with the issuance and reservation of shares of Parent Common Stock in the Merger, and the Company shall furnish all information concerning the Company and the holders of Company Common Stock, or holders of a beneficial interest therein, as may be reasonably requested in connection with any such action.
The Company will, except in the case of a Company Adverse Recommendation Change, through its Board of Directors, recommend that its stockholders adopt this Agreement and will use reasonable best efforts to solicit from its stockholders proxies in favor of the adoption of this Agreement and to take all other action necessary or advisable to secure the vote or consent of its stockholders required by the rules of the NYSE or applicable Laws to obtain such approvals.
The Company will not submit to the vote of its stockholders any Company Takeover Proposal other than the Merger. Such credited expenses shall also count. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 5. Additionally, each of Parent, Merger Sub and the Company shall use reasonable best efforts to fulfill all conditions precedent to the Merger and shall not take any action after the date of this Agreement that would reasonably be expected to materially delay the obtaining of, or result in not obtaining, any permission, approval or consent from any such Governmental Entity necessary to be obtained prior to Closing.
To the extent that transfers of any permits issued by any Governmental Entity are required as a result of the execution of this Agreement or the consummation of the Merger, the parties hereto shall use reasonable best efforts to effect such transfers. In that regard, prior to the Closing, each party shall promptly consult with the other parties to this Agreement with respect to, provide any necessary information with respect to and, in the case of correspondence, provide the other parties or their counsel copies of , all filings made by such party with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement and the Merger.
Each party to this Agreement shall promptly inform the other parties to this Agreement, and if in writing, furnish the other party with copies of or, in the case of oral communications, advise the other party orally of any communication from any Governmental Entity regarding the Merger, and permit the other party to review and discuss in advance, and consider in good faith the views of the other party in connection with, any proposed communication with any such Governmental Entity.
If any party to this Agreement or any Representative of such parties receives a request for additional information or documentary material from any Governmental Entity with respect to the Merger, then such party will use reasonable best efforts to make, or cause to be made, promptly and after consultation with the other parties to this Agreement, an appropriate response in substantial compliance with such request.
Neither party shall participate in any meeting or teleconference with any Governmental Entity where material issues would likely be discussed in connection with this Agreement and the Merger unless it consults with the other party in advance. Each party shall furnish the other party with copies of all correspondence, filings and communications and memoranda setting forth the substance thereof between it and any such Governmental Entity with respect to this Agreement and the Merger, and furnish the other party with such necessary information and reasonable assistance as the other party may reasonably request in connection with its preparation of necessary filings or submissions of information to any such Governmental Entity; provided , however , that materials provided pursuant to this Section 5.
To assist Parent in complying with its obligations set forth in this Section 5. The Company shall not, without the written consent of Parent, publicly or before any Governmental Entity or other third party, offer, suggest, propose or negotiate, and shall not commit to or effect, by consent decree, hold separate order or otherwise, any Divestiture Action.
Notwithstanding anything in this Agreement to the contrary, nothing in this Section 5. Parent and the Company shall use reasonable best efforts to develop a joint communications plan and each party shall use reasonable best efforts to ensure that all press releases and other public statements with respect to the transactions contemplated hereby, to the extent they have not been previously issued or disclosed, shall be consistent with such joint communications plan. Unless otherwise required by applicable Law or by obligations pursuant to any listing agreement with or rules of any securities exchange, each party shall consult with each other before issuing any press release or public statement with respect to the Merger and, subject to the requirements of applicable Law or the rules of any securities exchange, shall not issue any such press release or public statement prior to such consultation.
Parent and the Company agree to issue a mutually acceptable initial joint press release announcing this Agreement. Action pending or asserted or any claim made within such period shall continue until the disposition of such Action or resolution of such claim.
In the event of any such Action, the Surviving Company shall cooperate with the Indemnified Party in the defense of any such Action. It is expressly agreed that, notwithstanding any other provision of this Agreement that may be to the contrary, i the Indemnified Parties to whom this Section 5. Prior to the Effective Time, Parent and the Company shall take all such steps as may be required to cause any dispositions of Company Common Stock including derivative securities with respect to Company Common Stock or acquisitions of shares of Parent Common Stock including derivative securities with respect to Parent Common Stock resulting from the transactions contemplated by this Agreement by each individual who is subject to the reporting requirements of Section 16 a of the Exchange Act with respect to the Company or will become subject to such reporting requirements with respect to Parent, to be exempt under Rule 16b-3 promulgated under the Exchange Act.
If an Alternative Financing is required in accordance with this Section 5. The Company will provide to Parent and the Financing Sources such information as may be necessary so that the marketing materials as they relate to the Company and its affiliates are complete and correct in all material respects. At the Effective Time, subject to Parent making available necessary funds to do so, the Company shall use all reasonable best efforts to, and to cause its Subsidiaries to, permanently x terminate the indebtedness specified in Section 5.
Parent shall indemnify and hold harmless the Company and its Subsidiaries and each of the Indemnified Persons from and against any and all losses or damages actually suffered or incurred by them directly in connection with the arrangement of any such financing other than to the extent related to information provided by the Company, its Subsidiaries or their respective Representatives for use in the financing offering documents , except in the event such loss or damage arises out of or results from the gross negligence, willful misconduct, bad faith or intentional breach of its obligations hereunder by the Company or its Subsidiaries.
The Company agrees that it shall not settle or offer to settle any litigation commenced prior to or after the date of this Agreement against the Company or its directors, executive officers or similar persons by any stockholder of the Company relating to this Agreement, the Merger, or any other transaction contemplated hereby without the prior written consent of Parent. Prior to the Effective Time, Parent and the Company shall use their commercially reasonable efforts, and shall cause their respective Subsidiaries to use their commercially reasonable efforts, to take or cause to be taken any action.
Parent shall cause the shares of Parent Common Stock to be issued in the Merger and such other shares of Parent Common Stock to be reserved for issuance in connection with the Merger to be approved for listing on the NYSE, subject to official notice of issuance, prior to the Closing Date. Section 6. The respective obligations of each party to effect the Merger shall be subject to the fulfillment or waiver by all parties, to the extent permissible under applicable Law at or prior to the Effective Time of the following conditions:.
The obligation of the Company to effect the Merger is further subject to the fulfillment or waiver by the Company at or prior to the Effective Time of the following conditions:. Such counsel shall be entitled to rely upon representation letters from each of Parent and the Company, in each case, in form and substance reasonably satisfactory to such counsel.
Each such representation letter shall be dated as of the date of such opinion. The condition set forth in this Section 6. The obligation of Parent to effect the Merger is further subject to the fulfillment or the waiver by Parent at or prior to the Effective Time of the following conditions:.
Neither the Company nor Parent may rely, either as a basis for not consummating the Merger or terminating this Agreement and abandoning the Merger, on the failure of any condition set forth in Section 6. Section 7. Notwithstanding anything in this Agreement to the contrary, this Agreement may be terminated and abandoned at any time prior to the Effective Time, whether before or after the Company Stockholder Approval has been obtained except as otherwise provided below :.
In the event of termination of this Agreement pursuant to Section 7. If this Agreement is terminated i by Parent pursuant to Section 7. Notwithstanding anything to the contrary in this Agreement, if the Termination Fee shall become due and payable in accordance with this Section 7. In no event shall Parent be entitled to more than one payment of the Termination Fee in connection with a termination of this Agreement pursuant to which the Termination Fee is payable, and if the Termination Fee is payable at such time as Parent has already received payment or concurrently receives payment from the Company in respect of Expense Reimbursement, the amount of Expense Reimbursement actually received by Parent shall be deducted from the Termination Fee.
Accordingly, if the Company fails to pay in a timely manner any amount due pursuant to Section 7. Section 8. None of the representations, warranties, covenants and agreements in this Agreement or in any instrument delivered pursuant to this Agreement shall survive the Merger, except for the covenants and agreements of Parent in Section 5. Except as set forth in Section 7. This Agreement may be executed in two or more counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument, and shall become effective when one or more counterparts have been signed by each of the parties and delivered by telecopy, electronic delivery or otherwise to the other parties.
This Agreement, and all claims or causes of action whether at Law, in contract or in tort or otherwise that may be based upon, arise out of or relate to this Agreement or the negotiation, execution or performance hereof, shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule whether of the State of Delaware or any other jurisdiction that would cause the application of the laws of any jurisdiction other than the State of Delaware.
The parties further agree that no party to this Agreement shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy referred to in this Section 8. In addition, each of the parties hereto irrevocably agrees that any legal action or proceeding with respect to this Agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and the rights and obligations arising hereunder brought by the other party hereto or its successors or assigns, shall be brought and determined exclusively in the Delaware Court of Chancery and any state appellate court therefrom within the State of Delaware or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any federal court sitting within the State of Delaware.
Each of the parties hereto hereby irrevocably submits with regard to any such action or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the aforesaid courts and agrees that it will not bring any action relating to this Agreement or any of the transactions contemplated by this Agreement in any court other than the aforesaid courts.
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