ANY
COMMUNICATIONS WITH, AND COMMUNICATIONS FROM, ANY GOVERNMENTAL AUTHORITY WITH
RESPECT TO THE TRANSACTIONS.
TO THE EXTENT PRACTICABLE AND PERMITTED BY A
GOVERNMENTAL AUTHORITY, EACH PARTY HERETO SHALL PERMIT REPRESENTATIVES OF THE
OTHER PARTY TO PARTICIPATE IN MEETINGS (WHETHER BY TELEPHONE OR IN PERSON) WITH
SUCH GOVERNMENTAL AUTHORITY.
(C)
EACH OF THE PARTIES HERETO AGREES TO
COOPERATE AND USE ITS REASONABLE BEST EFFORTS TO DEFEND THROUGH LITIGATION ON
THE MERITS ANY ACTION, INCLUDING ANY ADMINISTRATIVE OR JUDICIAL ACTION, ASSERTED
BY ANY PARTY IN ORDER TO AVOID THE ENTRY OF, OR TO HAVE VACATED, LIFTED,
REVERSED, TERMINATED OR OVERTURNED ANY DECREE, JUDGMENT, INJUNCTION OR OTHER
ORDER (WHETHER TEMPORARY, PRELIMINARY OR PERMANENT) THAT IN WHOLE OR IN PART
RESTRICTS, PREVENTS OR PROHIBITS CONSUMMATION OF THE TRANSACTIONS BY AUGUST 31,
2005, INCLUDING, WITHOUT LIMITATION, BY VIGOROUSLY PURSUING ALL AVAILABLE
AVENUES OF ADMINISTRATIVE AND JUDICIAL APPEAL.
35
(D)
NOTWITHSTANDING ANY OTHER PROVISION OF THIS
AGREEMENT TO THE CONTRARY, THE INVESTORS AGREE TO TAKE PROMPTLY ANY AND ALL
STEPS NECESSARY TO AVOID OR ELIMINATE EACH AND EVERY IMPEDIMENT UNDER ANY
ANTITRUST OR TRADE REGULATION LAW THAT MAY BE ASSERTED BY ANY GOVERNMENTAL
AUTHORITY OR ANY OTHER PERSON WITH RESPECT TO THE TRANSACTIONS SO AS TO ENABLE
THE PARTIES TO CONSUMMATE THE TRANSACTIONS BY AUGUST 31, 2005, INCLUDING,
WITHOUT LIMITATION, PROPOSING, NEGOTIATING AND COMMITTING TO AND/OR EFFECTING,
BY CONSENT DECREE, HOLD SEPARATE ORDER, OR OTHERWISE, THE SALE, DIVESTITURE OR
DISPOSITION OF SUCH ASSETS OR BUSINESSES OF THE INVESTORS OR THE COMPANY
(INCLUDING ASSETS OR BUSINESSES OF A SUBSIDIARY OF ANY INVESTOR OR THE COMPANY)
AS ARE REQUIRED TO BE DIVESTED, OR ENTERING INTO SUCH OTHER ARRANGEMENTS AS ARE
REQUIRED IN ORDER TO AVOID THE ENTRY OF, OR TO EFFECT THE DISSOLUTION OF, ANY
DECREE, JUDGMENT, INJUNCTION (WHETHER TEMPORARY, PRELIMINARY OR PERMANENT) OR
OTHER ORDER IN ANY SUIT OR PROCEEDING, WHICH WOULD OTHERWISE HAVE THE EFFECT OF
PREVENTING, RESTRICTING, RESTRAINING OR PROHIBITING THE CONSUMMATION OF THE
TRANSACTIONS BY AUGUST 31, 2005.
(E)
FROM THE DATE OF THIS AGREEMENT THROUGH THE
CLOSING, NO INVESTOR SHALL, NOR SHALL IT CAUSE ITS AFFILIATES TO ENTER INTO ANY
LETTER OF INTENT (WHETHER BINDING OR NON-BINDING), CONTRACT OR OTHER COMMITMENT
OF ANY KIND RELATING TO THE ACQUISITION BY SUCH INVESTOR OR SUCH AFFILIATE OF
ANY VOTING INTEREST IN ANY BUSINESS RELATED TO THE RETAIL FOOD OR DRUG BUSINESS,
THE EFFECT OF WHICH WOULD REASONABLY BE EXPECTED TO DELAY OR PREVENT THE
CONSUMMATION OF THE TRANSACTIONS.
(F)
THE COMPANY, THE SUBSIDIARIES AND THE
INVESTORS SHALL GIVE ANY NOTICES TO THIRD PARTIES, AND USE ALL REASONABLE
EFFORTS TO OBTAIN ANY THIRD PARTY CONSENTS, (I) NECESSARY, PROPER OR ADVISABLE
TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT AND EACH ANCILLARY
AGREEMENT OR (II) REQUIRED TO BE DISCLOSED IN THE DISCLOSURE SCHEDULE.
IN THE
EVENT THAT EITHER PARTY SHALL FAIL TO OBTAIN ANY THIRD PARTY CONSENT DESCRIBED
IN THE FIRST SENTENCE OF THIS SECTION 6.05(F), SUCH PARTY SHALL USE ALL
REASONABLE EFFORTS, AND SHALL TAKE ANY SUCH ACTIONS REASONABLY REQUESTED BY THE
OTHER PARTY HERETO,