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This excerpt taken from the ESRX 8-K filed Apr 14, 2009. Other
Insurance Approvals" (provided that such term shall not
include the Ohio State
Insurance Approval)). Subject to the terms and
conditions set forth herein (including Section 5.5), and to applicable Law, each
Party agrees to use its reasonable best efforts to take, or cause to be taken,
all actions necessary, and assist and cooperate with the other Parties
in doing, all things necessary proper or advisable, to consummate and make
effective, in the most expeditious manner practicable, the transactions
contemplated hereby, including the satisfaction of the respective conditions set forth in Article
VI.
(b) In the event any consent, waiver,
license, Order, registration, approval, Permit, tax ruling or authorization is
necessary or advisable to be obtained from any Governmental Entity in order to
consummate the transactions
contemplated by this Agreement, other than with respect to the matters covered
by Section 5.5 (which will be governed by Section 5.5), each of the Parties will
promptly notify the other Party of any written or, if not written, material,
communication made to or received by such Party from any
Governmental Entity regarding any of the transactions contemplated hereby, and,
subject, in each case, to applicable Law, if practicable, permit the other Party
to review in advance any proposed written communication to any such Governmental Entity and
incorporate the other Party's reasonable comments, not agree to participate in
any substantive meeting or discussion with any such Governmental Entity in
respect of any filing, investigation or inquiry concerning this Agreement or the transactions
contemplated hereby unless, to the extent reasonably practicable, it consults
with the other Party in advance and, to the extent permitted by such
Governmental Entity, gives the other Party the opportunity to attend, and
furnish the other Party upon request with
copies of all correspondence, filings and written communications between it and
its Affiliates and its respective Representatives on one hand and any such
Governmental Entity or its respective staff on the other hand, with respect to this Agreement and the
transactions contemplated hereby. Without limiting the generality of
the foregoing, subject to applicable Law, each Party shall provide to the
other Party (or their respective Representatives) upon request copies of
all correspondence between such Party
and any Governmental Entity and all productions by such Party
to a Governmental Entity, in each case relating to the transactions
described herein. In addition, to the extent reasonably practicable, all
discussions, telephone calls, and meetings with a
Governmental Entity regarding the transactions described
herein shall include Representatives of both
Parties. Subject to applicable Law, the Parties will
consult and cooperate with each other in connection with any analyses, appearances, presentations,
memoranda, briefs, arguments, and
57
proposals
made or submitted to any Governmental Entity regarding
the transactions described herein by or on behalf of
any Party.
Section
5.5 Antitrust
Laws. (a) Subject to the terms and conditions of this
Agreement each of Seller and Purchaser shall, and each of Seller and Purchaser
shall cause their respective Subsidiaries to, use its reasonable best efforts
to: (i) as promptly as practicable but in no event later than the tenth (10th) Business Day following the
date hereof (or at such later time, not to exceed the twentieth (20th) Business Day, as may be requested by
Purchaser in writing to permit the occurrence of pre-filing conferences with any
applicable Governmental Entity), or on such other date as the
Parties may agree, take all actions necessary to file or cause to be filed the
filings required of it or any of its Affiliates under any applicable Antitrust
Laws in connection with this Agreement and the transactions contemplated hereby; and (ii) at the
earliest practicable date comply with (or properly reduce the scope of) any
formal or informal request for additional information or documentary material
received by it or any of its Affiliates from any Antitrust Authority. Each of the Parties will
promptly notify the other Party of any written or, if not written, material,
communication made to or received by such Party from any Antitrust Authority
regarding any of the transactions contemplated hereby, and, subject, in
each case, to applicable Law, if
practicable, permit the other Party to review in advance any proposed written
communication to any such Antitrust Authority and incorporate the other Party's
reasonable comments, not agree to participate in any substantive meeting or discussion with any such
Antitrust Authority in respect of any filing, investigation or inquiry
concerning this Agreement or the transactions contemplated hereby unless, to the
extent reasonably practicable, it consults with the other Party in
advance and, to the extent permitted by
such Antitrust Authority, gives the other Party the opportunity to attend, and
furnish the other Party upon request with copies of all correspondence, filings
and written communications between it and its Affiliates and its respective Representatives on one
hand and any such Antitrust Authority or its respective staff on the other hand,
with respect to this Agreement and the transactions contemplated
hereby. Without limiting the generality of the foregoing, subject to
applicable Law, each Party shall
provide to the other Party (or its Representatives) upon request copies of
all correspondence between such Party and any Antitrust Authority and
all productions by such Party to any Antitrust Authority, in each
case relating to the transactions described
herein. The Parties may, as they deem advisable and necessary,
designate any competitively sensitive materials provided to the other under this
Section 5.5(a) as "outside counsel only." Such materials and the
information contained therein shall be given only to
outside counsel of the recipient and will not be disclosed by such outside
counsel to employees, officers, or directors of the recipient without the
advance written consent of the Party providing such materials. In
addition, to the extent reasonably
practicable, all discussions, telephone calls, and meetings with an Antitrust
Authority regarding the transactions described herein shall
include Representatives of both Parties. Subject to
applicable Law, the Parties will consult and cooperate with each other
in connection with any analyses, appearances, presentations, memoranda, briefs,
arguments, and proposals made or submitted to any Antitrust
Authority regarding the transactions described herein by or on
behalf of any Party.
(b) Each of Purchaser and Seller shall be
responsible for the payment of fifty percent (50%) of all filing fees under the
HSR Act. Each Party shall be responsible for the
58
payment
of its and its Affiliates' expenses, including reasonable legal fees and
expenses, in complying with any request for additional information or
documentary material from any Antitrust Authority or otherwise complying with
this Section 5.5, including Sections 5.5(d) and 5.5(e).
(c) Purchaser shall not, and shall cause its
Affiliates not to, acquire
or agree to acquire, by merging with or into or consolidating with, or by
purchasing a substantial portion of the assets of or equity in, or by any other
manner, any business or any corporation, partnership, association or
other business organization or division
thereof, or otherwise acquire or agree to acquire any assets, if the entering
into of a definitive agreement relating to, or the consummation of such
acquisition, merger or consolidation would reasonably be expected
to: (i) impose any material delay in the
obtaining of, or materially increase the risk of not obtaining, any consents of
any Governmental Entity necessary to consummate the transactions contemplated
hereby or the expiration or termination of any applicable waiting period; (ii) materially increase the
risk of any Governmental Entity entering an Order prohibiting the consummation
of the transactions contemplated hereby; (iii) materially increase the risk of
not being able to remove any such Order on appeal or otherwise; or (iv) materially delay or
prevent the consummation of the transactions contemplated
hereby.
(d) Subject to Section 5.5(f), Purchaser and
its Subsidiaries shall take any and all of the following actions requested by
any Antitrust Authority, or necessary to resolve any objections that may
be asserted by any Antitrust Authority with respect to the transactions
contemplated by this Agreement under any Antitrust Law:
(i)
at Purchaser's
sole cost, comply with all restrictions and conditions, if any, imposed or requested by any Antitrust
Authority with respect to Antitrust Laws in connection with granting any
necessary clearance or terminating any applicable waiting period including (x)
agreeing to sell, divest, hold separate, license, cause a third
party to acquire, or otherwise dispose of, any
Subsidiary, operations, divisions, businesses, product lines, customers or
assets of any Target Company contemporaneously with or after the Closing (a
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