All Reasonable Efforts. (a) Upon the terms and subject to the conditions set forth in this Agreement and in accordance with applicable Laws, each of the parties to this Agreement will use all reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to ensure that the conditions to the Merger set forth in Article VII are satisfied and to consummate the transactions contemplated by this Agreement as promptly as practicable, including (i) obtaining all necessary actions or non-actions, waivers, consents and approvals from Governmental Entities and making all necessary registrations and filings and taking all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) making, as promptly as practicable (and in any event within 15 Business Days of the date of this Agreement), an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby and not extending any waiting period under the HSR Act or entering into any agreement with the U.S. Federal Trade Commission (the “FTC”) or the Antitrust Division of the U.S. Department of Justice (the “Antitrust Division”) not to consummate the transactions contemplated by this Agreement, except with the prior written consent of the other party hereto, (iii) making, as promptly as practicable, appropriate filings under any other antitrust, competition or pre-merger notification, trade regulation law, regulation or order, (iv) subject to first having used all reasonable efforts to negotiate a resolution of any objections underlying such lawsuits or other legal proceedings, defending and contesting any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated by this Agreement, including seeking to have any stay or temporary restraining order entered by any Governmental Entity vacated or reversed and (v) executing and delivering any additional instruments necessary to consummate the transactions contemplated hereby, and to fully carry out the purposes of this Agreement; provided, however, that neither the Company nor any of its Subsidiaries shall commit to the payment of any fee, penalty or other consideration or make any other concession, waiver or amendment under any Contract in connection with obtaining any consent without the prior written consent of Parent (except as required by the terms of the applicable Contract). (b) Parent, Purchaser and the Company will cooperate and consult with each other in connection with the making of all such filings, notifications and any other material actions pursuant to this Section 6.9, subject to applicable Law, by permitting counsel for the other party to review in advance, and consider in good faith the views of the other party in connection with, any proposed material written communication to any Governmental Entity and by providing counsel for the other party with copies of all filings and submissions made by such party and all correspondence between such party (and its advisors) with any Governmental Entity and any other information supplied by such party and such party’s Affiliates to a Governmental Entity or received from such a Governmental Entity in connection with the transactions contemplated by this Agreement; provided, however, that material may be redacted on the advice of outside counsel as necessary to address good faith legal privilege or confidentiality concerns. (c) Each of Parent, Purchaser and the Company will promptly inform the other party upon receipt of any material communication from the FTC, the Antitrust Division or any other Governmental Entity regarding any of the transactions contemplated by this Agreement. If Parent, Purchaser or the Company (or any of their respective Affiliates) receives a request for additional information or documentary material from any such Governmental Entity that is related to the transactions contemplated by this Agreement, then such party will endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. The parties agree not to participate, or to permit their Affiliates to participate, in any substantive meeting or discussion with any Governmental Entity in connection with the transactions contemplated by this Agreement unless it so consults with the other party in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate. Each party will advise the other party promptly of any understandings, undertakings or agreements (oral or written) which the first party proposes to make or enter into with the FTC, the Antitrust Division or any other Governmental Entity in connection with the transactions contemplated by this Agreement. In furtherance and not in limitation of the foregoing, each party will use all reasonable efforts to resolve any objections that may be asserted with respect to the transactions contemplated by this Agreement under any antitrust, competition or trade regulatory Laws, including (subject to first having used all reasonable efforts to negotiate a resolution to any such objections) contesting and resisting any action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or the other transactions contemplated by this Agreement and to have such statute, rule, regulation, executive order, decree, injunction or administrative order repealed, rescinded or made inapplicable so as to permit consummation of the transactions contemplated by this Agreement. (d) In furtherance and not in limitation of the covenants of the parties contained in this Section 6.9, if any objections are asserted with respect to the transactions contemplated hereby under any antitrust Law or if any suit is instituted (or threatened to be instituted) by the FTC, Antitrust Division or any other applicable Governmental Entity challenging any of the transactions contemplated hereby as violative of any antitrust Law or which would otherwise prohibit or materially impair or materially delay the consummation of the transactions contemplated hereby, each of Parent, Purchaser and the Company shall use its reasonable efforts to resolve any such objections or suits so as to permit consummation of the transactions contemplated by this Agreement. (e) Notwithstanding any other provision of this Agreement to the contrary, in no event shall Parent or any of its Affiliates be required to (i) agree or proffer to divest or hold separate (in a trust or otherwise), or take any other action with respect to, any of the assets or businesses of Parent or any of its Affiliates or, assuming the consummation of the Merger, the Surviving Corporation or any of its Affiliates, (ii) agree or proffer to limit in any manner whatsoever or not to exercise any rights of ownership of any securities (including the Shares) or (iii) enter into any agreement that in any way limits the ownership or operation of any business of Parent, the Company, the Surviving Corporation or any of their respective Affiliates.
Appears in 2 contracts
Sources: Merger Agreement (American Fiber Systems, Inc.), Merger Agreement (Fibernet Telecom Group Inc\)
All Reasonable Efforts. (a) Upon the terms Mesa and subject to the conditions set forth in this Agreement Armada shall cooperate with each other and in accordance with applicable Laws, each of the parties to this Agreement will use all commercially reasonable efforts to take, take or cause to be takentaken all actions, all actions and to do, do or cause to be donedone all things, all things necessary, proper or advisable to ensure that the conditions to the Merger set forth in Article VII are satisfied on its part under this Agreement and Applicable Laws to consummate and make effective the Acquisition and the other transactions contemplated by this Agreement as promptly soon as practicable, including (i) obtaining preparing and filing as promptly as practicable all documentation to effect all necessary actions or non-actionsnotices, waivers, consents reports and approvals from Governmental Entities and making all necessary registrations and other filings and taking all steps as may be necessary to obtain an approval as promptly as practicable all consents, registrations, approvals, permits and authorizations necessary or waiver fromadvisable to be obtained from any Third Party or Governmental Entity to consummate the Acquisition or any of the other transactions contemplated by this Agreement (provided that, notwithstanding the foregoing, in connection with obtaining such consents, the Parties agree that in no event shall any Party or its Subsidiaries be required or, without the other Party’s prior written consent, be permitted) to (A) pay, or agree or commit to avoid an action pay, to any Person whose consent is being solicited any cash or proceeding byother consideration (other than de minimis amounts), (B) incur, or agree or commit to incur, any liability (other than de minimis liabilities) due to such Person, (C) enter into any settlement, undertaking, consent decree, stipulation or agreement with any Governmental EntityEntity or (D) divest or otherwise hold separate (including by establishing a trust or otherwise), or take any other action (or otherwise agree to do any of the foregoing) with respect to any of their respective Subsidiaries or any of their respective Affiliates’ businesses, assets or properties), (ii) making, as promptly as practicable (and in the defending of any event within 15 Business Days of the date of stockholder lawsuits challenging this Agreement), an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby and not extending Agreement or any waiting period under the HSR Act or entering into any other agreement with the U.S. Federal Trade Commission (the “FTC”) or the Antitrust Division of the U.S. Department of Justice (the “Antitrust Division”) not to consummate the transactions contemplated by this Agreement, except with the prior written consent of the other party hereto, (iii) making, as promptly as practicable, appropriate filings under any other antitrust, competition or pre-merger notification, trade regulation law, regulation or order, (iv) subject to first having used all reasonable efforts to negotiate a resolution of any objections underlying such lawsuits or other legal proceedings, defending and contesting any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated by this Agreement, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity in any such stockholder lawsuit vacated or reversed reversed, and (viii) executing the execution and delivering delivery of any additional ancillary instruments necessary to consummate the transactions contemplated hereby, by this Agreement and to fully carry out the purposes of this Agreement; provided, however, that neither Agreement and the Company nor any of its Subsidiaries shall commit transactions contemplated hereby. Subject to Applicable Laws relating to the payment exchange of any feeinformation, penalty or other consideration or make any other concession, waiver or amendment under any Contract in connection with obtaining any consent without Armada and Mesa shall have the prior written consent of Parent (except as required by the terms of the applicable Contract).
(b) Parent, Purchaser and the Company will cooperate and consult with each other in connection with the making of all such filings, notifications and any other material actions pursuant to this Section 6.9, subject to applicable Law, by permitting counsel for the other party right to review in advance, and consider in good faith and, to the views extent practicable, each will consult with the other on all of the other party in connection withinformation relating to Armada or Mesa, any proposed material written communication to any Governmental Entity as the case may be, and by providing counsel for the other party with copies of all filings and submissions made by such party and all correspondence between such party (and its advisors) with any Governmental Entity and any other information supplied by such party and such party’s Affiliates to a Governmental Entity or received from such a Governmental Entity in connection with the transactions contemplated by this Agreement; provided, however, that material may be redacted on the advice of outside counsel as necessary to address good faith legal privilege or confidentiality concerns.
(c) Each of Parent, Purchaser and the Company will promptly inform the other party upon receipt of any material communication from the FTC, the Antitrust Division or any other Governmental Entity regarding any of the transactions contemplated by this Agreement. If Parent, Purchaser or the Company (or any of their respective Affiliates) receives a request for additional information or documentary material from Subsidiaries, that appears in any such Governmental Entity that is related to the transactions contemplated by this Agreement, then such party will endeavor in good faith to makefiling made with, or cause to be madewritten materials submitted to, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. The parties agree not to participate, or to permit their Affiliates to participate, in any substantive meeting or discussion with Third Party and/or any Governmental Entity in connection with the transactions contemplated by this Agreement unless it so consults with the other party in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend Acquisition and participate. Each party will advise the other party promptly of any understandings, undertakings or agreements (oral or written) which the first party proposes to make or enter into with the FTC, the Antitrust Division or any other Governmental Entity in connection with the transactions contemplated by this Agreement. In furtherance and not in limitation of the foregoing, each party will use all reasonable efforts to resolve any objections that may be asserted with respect to the transactions contemplated by this Agreement under any antitrust, competition or trade regulatory Laws, including (subject to first having used all reasonable efforts to negotiate a resolution to any such objections) contesting and resisting any action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or the other transactions contemplated by this Agreement and to have such statute, rule, regulation, executive order, decree, injunction or administrative order repealed, rescinded or made inapplicable so as to permit consummation of (including the transactions contemplated by this Agreement.
(d) Proxy Statement). In furtherance and not in limitation of exercising the covenants of the parties contained in this Section 6.9, if any objections are asserted with respect to the transactions contemplated hereby under any antitrust Law or if any suit is instituted (or threatened to be instituted) by the FTC, Antitrust Division or any other applicable Governmental Entity challenging any of the transactions contemplated hereby as violative of any antitrust Law or which would otherwise prohibit or materially impair or materially delay the consummation of the transactions contemplated herebyforegoing rights, each of Parent, Purchaser Mesa and the Company Armada shall use its reasonable efforts to resolve any such objections or suits so act reasonably and as to permit consummation of the transactions contemplated by this Agreementpromptly as practicable.
(e) Notwithstanding any other provision of this Agreement to the contrary, in no event shall Parent or any of its Affiliates be required to (i) agree or proffer to divest or hold separate (in a trust or otherwise), or take any other action with respect to, any of the assets or businesses of Parent or any of its Affiliates or, assuming the consummation of the Merger, the Surviving Corporation or any of its Affiliates, (ii) agree or proffer to limit in any manner whatsoever or not to exercise any rights of ownership of any securities (including the Shares) or (iii) enter into any agreement that in any way limits the ownership or operation of any business of Parent, the Company, the Surviving Corporation or any of their respective Affiliates.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Armada Oil, Inc.), Asset Purchase Agreement (Mesa Energy Holdings, Inc.)
All Reasonable Efforts. (a) Upon the terms and subject to the conditions set forth in this Agreement and in accordance with applicable Laws, each of the parties to this Agreement will use all reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to ensure that the conditions to the Offer set forth on Annex I hereto and the conditions to the Merger set forth in Article VII are satisfied and to consummate the transactions contemplated by this Agreement as promptly as practicable, including (i) obtaining all necessary actions or non-actionsnonactions, waivers, consents and approvals from Governmental Entities and making all necessary registrations and filings and taking all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) making, as promptly as practicable (and in any event within 15 Business Days of the date of this Agreement), an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby and not extending any waiting period under the HSR Act or entering into any agreement with the U.S. Federal Trade Commission (the “FTC”) or the Antitrust Division of the U.S. Department of Justice (the “Antitrust Division”) not to consummate the transactions contemplated by this Agreement, except with the prior written consent of the other party hereto, (iii) making, as promptly as practicable, appropriate filings under any other antitrust, competition or pre-merger premerger notification, trade regulation law, regulation or order, (iviii) subject to first having used all reasonable efforts to negotiate a resolution of any objections underlying such lawsuits or other legal proceedings, defending and contesting any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated by this Agreement, including seeking to have any stay or temporary restraining order entered by any Governmental Entity vacated or reversed and (viv) executing and delivering any additional instruments necessary to consummate the transactions contemplated hereby, and to fully carry out the purposes of this Agreement; provided, however, that neither the Company nor any of its Subsidiaries shall commit to the payment of any fee, penalty or other consideration or make any other concession, waiver or amendment under any Contract in connection with obtaining any consent without the prior written consent of Parent (except as required by the terms of the applicable Contract).
(b) Parent, Purchaser and the Company will cooperate fully with, furnish information to, and consult with each other in connection with the making of all such filings, notifications and any other material actions pursuant to this Section 6.9, subject to applicable Law, by permitting counsel for the other party to review in advance, and consider in good faith the views of the other party in connection with, any proposed material written communication to any Governmental Entity and by providing counsel for the other party with copies of all filings and submissions made by such party and all correspondence between such party (and its advisors) with any Governmental Entity and any other information supplied by such party and such party’s Affiliates to a Governmental Entity or received from such a Governmental Entity in connection with the transactions contemplated by this Agreement; provided, however, that material may be redacted on the advice of outside counsel (i) as necessary to comply with contractual arrangements, and (ii) as necessary to address good faith legal privilege or confidentiality concerns.
(c) Each of Parent, Purchaser and the Company will promptly inform the other . Neither party upon receipt shall consent to any voluntary extension of any material communication from the FTC, the Antitrust Division statutory deadline or waiting period or to any other Governmental Entity regarding any voluntary delay of the transactions contemplated by this Agreement. If Parent, Purchaser or the Company (or any of their respective Affiliates) receives a request for additional information or documentary material from any such Governmental Entity that is related to the transactions contemplated by this Agreement, then such party will endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. The parties agree not to participate, or to permit their Affiliates to participate, in any substantive meeting or discussion with any Governmental Entity in connection with the transactions contemplated by this Agreement unless it so consults with the other party in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate. Each party will advise the other party promptly of any understandings, undertakings or agreements (oral or written) which the first party proposes to make or enter into with the FTC, the Antitrust Division or any other Governmental Entity in connection with the transactions contemplated by this Agreement. In furtherance and not in limitation of the foregoing, each party will use all reasonable efforts to resolve any objections that may be asserted with respect to the transactions contemplated by this Agreement under any antitrust, competition or trade regulatory Laws, including (subject to first having used all reasonable efforts to negotiate a resolution to any such objections) contesting and resisting any action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or the other transactions contemplated by this Agreement and to have such statute, rule, regulation, executive order, decree, injunction or administrative order repealed, rescinded or made inapplicable so as to permit consummation of the transactions contemplated by this Agreement.
(d) In furtherance and not in limitation Agreement at the behest of any Governmental Entity without the consent of the covenants of the parties contained in this Section 6.9, if any objections are asserted with respect to the transactions contemplated hereby under any antitrust Law or if any suit is instituted (or threatened to be instituted) by the FTC, Antitrust Division or any other applicable Governmental Entity challenging any of the transactions contemplated hereby as violative of any antitrust Law or which would otherwise prohibit or materially impair or materially delay the consummation of the transactions contemplated hereby, each of Parent, Purchaser and the Company shall use its reasonable efforts to resolve any such objections or suits so as to permit consummation of the transactions contemplated by this Agreementparty hereto.
(e) Notwithstanding any other provision of this Agreement to the contrary, in no event shall Parent or any of its Affiliates be required to (i) agree or proffer to divest or hold separate (in a trust or otherwise), or take any other action with respect to, any of the assets or businesses of Parent or any of its Affiliates or, assuming the consummation of the Merger, the Surviving Corporation or any of its Affiliates, (ii) agree or proffer to limit in any manner whatsoever or not to exercise any rights of ownership of any securities (including the Shares) or (iii) enter into any agreement that in any way limits the ownership or operation of any business of Parent, the Company, the Surviving Corporation or any of their respective Affiliates.
Appears in 2 contracts
Sources: Merger Agreement (Naf Holdings Ii, LLC), Merger Agreement (Hampshire Group LTD)
All Reasonable Efforts. (a) Upon the terms and subject to the conditions set forth in this Agreement and in accordance with applicable Laws, each of the parties to this Agreement will use all reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to ensure that the conditions to the Merger set forth in Article VII are satisfied and to consummate the transactions contemplated by this Agreement as promptly as practicable, including (i) obtaining using all reasonable efforts to obtain all necessary actions or non-actionsnonactions, waivers, consents and approvals from Governmental Entities and making all necessary registrations and filings and taking all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) making, as promptly as practicable (and in any event within 15 20 Business Days of the date of this AgreementDays), an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby and not extending any waiting period under the HSR Act or entering into any agreement with the U.S. Federal Trade Commission (the “"FTC”") or the Antitrust Division of the U.S. Department of Justice (the “"Antitrust Division”") not to consummate the transactions contemplated by this Agreement, except with the prior written consent of the other party hereto, (iii) making, as promptly as practicablepracticable (and in any event within 15 Business Days), appropriate filings (a) under the EC Merger Regulation, if required, and (b) if required, under any other antitrust, competition or pre-merger premerger notification, trade regulation lawLaw, regulation or orderOrder, (iv) obtaining all consents, approvals or waivers from, or taking other actions with respect to, third parties necessary or advisable to be obtained or taken in connection with the transactions contemplated by this Agreement; provided, however, that without the prior written consent of Parent, the Company and its Subsidiaries may not pay or commit to pay any material amount of cash or other consideration, or incur or commit to incur any material liability or other obligation, in connection with obtaining such consent, approval or waiver, (v) subject to first having used all reasonable efforts to negotiate a resolution of any objections underlying such lawsuits or other legal proceedings, defending using reasonable efforts to defend and contesting contest any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated by this Agreement, including seeking using reasonable efforts to seek to have any stay or temporary restraining order entered by any Governmental Entity vacated or reversed reversed, and (vvi) executing and delivering any additional instruments necessary to consummate the transactions contemplated hereby, and to fully carry out the purposes of this Agreement; provided, however, that neither the Company nor any of its Subsidiaries shall commit to the payment of any fee, penalty or other consideration or make any other concession, waiver or amendment under any Contract in connection with obtaining any consent without the prior written consent of Parent (except as required by the terms of the applicable Contract).
(b) Parent, Purchaser Parent and the Company will cooperate and consult with each other in connection with the making of all such filings, notifications and any other material actions pursuant to this Section 6.9, subject to applicable Law, by permitting counsel for the other party to review in advance, and consider in good faith the views of the other party in connection with, any proposed material written communication to any Governmental Entity and by providing counsel for the other party with copies of all filings and submissions made by such party and all correspondence between such party (and its advisors) with any Governmental Entity and any other information supplied by such party and such party’s 's Affiliates to a Governmental Entity or received from such a Governmental Entity in connection with the transactions contemplated by this Agreement; provided, however, that material may be redacted on the advice of outside counsel (x) as necessary to comply with contractual arrangements, and (y) as necessary to address good faith legal privilege or confidentiality concerns. The Company shall not consent to any voluntary extension of any statutory deadline or waiting period or to any voluntary delay of the consummation of the transactions contemplated by this Agreement at the behest of any Governmental Entity without the consent of Parent. The parties hereto may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient, unless express written permission is obtained in advance from the party delivering the materials.
(c) Each of Parent, Purchaser Parent and the Company will promptly inform the other party upon receipt of any material communication from the FTC, the Antitrust Division or any other Governmental Entity regarding any of the transactions contemplated by this Agreement. If Parent, Purchaser Parent or the Company (or any of their respective Affiliates) receives a request for additional information or documentary material from any such Governmental Entity that is related to the transactions contemplated by this Agreement, then such party will endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. The parties agree not to participate, or to permit their Affiliates to participate, in any substantive meeting or discussion with any Governmental Entity in connection with the transactions contemplated by this Agreement unless it so consults with the other party in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate. Each party will advise the other party promptly of any understandings, undertakings or agreements (oral or written) which the first party proposes to make or enter into with the FTC, the Antitrust Division or any other Governmental Entity in connection with the transactions contemplated by this Agreement. In furtherance and not in limitation of the foregoing, each party will use all reasonable efforts to resolve any objections that may be asserted with respect to the transactions contemplated by this Agreement under any antitrust, competition or trade regulatory Laws, including (subject to first having used all reasonable efforts to negotiate a resolution to any such objections) contesting and resisting any action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or the other transactions contemplated by this Agreement and to have such statute, rule, regulation, executive order, decree, injunction or administrative order repealed, rescinded or made inapplicable so as to permit consummation of the transactions contemplated by this Agreement.
(d) In furtherance and not in limitation of Notwithstanding the covenants of the parties foregoing, nothing contained in this Section 6.9Agreement shall require or obligate Parent or its Affiliates to, if any objections are asserted with respect to the transactions contemplated hereby under any antitrust Law or if any suit is instituted (or threatened to be instituted) by the FTC, Antitrust Division or any other applicable Governmental Entity challenging any of the transactions contemplated hereby as violative of any antitrust Law or which would otherwise prohibit or materially impair or materially delay the consummation of the transactions contemplated hereby, each of Parent, Purchaser and the Company shall use its reasonable efforts to resolve any such objections or suits so as to permit consummation not, without the prior written consent of the transactions contemplated by this Agreement.
(e) Notwithstanding any other provision of this Agreement to the contrary, in no event shall Parent or any of its Affiliates be required to Parent: (i) agree or proffer otherwise become subject to divest any restrictions, conditions, limitations or other understanding on or with respect to the operation of the business of Parent, any of its Affiliates, or the Company in any material respect; or (ii) agree or otherwise be required to sell or otherwise dispose of, hold separate (in through the establishment of a trust or otherwise), or take divest itself of any other action with respect tobusiness, any of the assets or businesses operations of Parent or any of its Affiliates orParent, assuming the consummation of the Merger, the Surviving Corporation or any of its Affiliates, (ii) agree or proffer to limit in any manner whatsoever or not to exercise any rights of ownership of any securities (including the Shares) or (iii) enter into any agreement that in any way limits the ownership or operation of any business of Parent, the Company, the Surviving Corporation or any of their respective Affiliates.
Appears in 1 contract
All Reasonable Efforts. (a) Upon the terms and subject to the conditions set forth in this Agreement and in accordance with applicable Laws, each of the parties to this Agreement will use all reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to ensure that the conditions to the Merger set forth in Article VII are satisfied and to consummate the transactions contemplated by this Agreement as promptly as practicable, including (i) obtaining using all reasonable efforts to obtain all necessary actions or non-actionsnonactions, waivers, consents and approvals from Governmental Entities and making all necessary registrations and filings and taking all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) making, as promptly as practicable (and in any event within 15 20 Business Days of the date of this AgreementDays), an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby and not extending any waiting period under the HSR Act or entering into any agreement with the U.S. Federal Trade Commission (the “"FTC”") or the Antitrust Division of the U.S. Department of Justice (the “Antitrust Division”"ANTITRUST DIVISION") not to consummate the transactions contemplated by this Agreement, except with the prior written consent of the other party hereto, (iii) making, as promptly as practicablepracticable (and in any event within 15 Business Days), appropriate filings (a) under the EC Merger Regulation, if required, and (b) if required, under any other antitrust, competition or pre-merger premerger notification, trade regulation lawLaw, regulation or orderOrder, (iv) obtaining all consents, approvals or waivers from, or taking other actions with respect to, third parties necessary or advisable to be obtained or taken in connection with the transactions contemplated by this Agreement; PROVIDED, HOWEVER, that without the prior written consent of Parent, the Company and its Subsidiaries may not pay or commit to pay any material amount of cash or other consideration, or incur or commit to incur any material liability or other obligation, in connection with obtaining such consent, approval or waiver, (v) subject to first having used all reasonable efforts to negotiate a resolution of any objections underlying such lawsuits or other legal proceedings, defending using reasonable efforts to defend and contesting contest any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated by this Agreement, including seeking using reasonable efforts to seek to have any stay or temporary restraining order entered by any Governmental Entity vacated or reversed reversed, and (vvi) executing and delivering any additional instruments necessary to consummate the transactions contemplated hereby, and to fully carry out the purposes of this Agreement; provided, however, that neither the Company nor any of its Subsidiaries shall commit to the payment of any fee, penalty or other consideration or make any other concession, waiver or amendment under any Contract in connection with obtaining any consent without the prior written consent of Parent (except as required by the terms of the applicable Contract).
(b) Parent, Purchaser Parent and the Company will cooperate and consult with each other in connection with the making of all such filings, notifications and any other material actions pursuant to this Section 6.9, subject to applicable Law, by permitting counsel for the other party to review in advance, and consider in good faith the views of the other party in connection with, any proposed material written communication to any Governmental Entity and by providing counsel for the other party with copies of all filings and submissions made by such party and all correspondence between such party (and its advisors) with any Governmental Entity and any other information supplied by such party and such party’s 's Affiliates to a Governmental Entity or received from such a Governmental Entity in connection with the transactions contemplated by this Agreement; providedPROVIDED, howeverHOWEVER, that material may be redacted on the advice of outside counsel (x) as necessary to comply with contractual arrangements, and (y) as necessary to address good faith legal privilege or confidentiality concerns. The Company shall not consent to any voluntary extension of any statutory deadline or waiting period or to any voluntary delay of the consummation of the transactions contemplated by this Agreement at the behest of any Governmental Entity without the consent of Parent. The parties hereto may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as "outside counsel only." Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient, unless express written permission is obtained in advance from the party delivering the materials.
(c) Each of Parent, Purchaser Parent and the Company will promptly inform the other party upon receipt of any material communication from the FTC, the Antitrust Division or any other Governmental Entity regarding any of the transactions contemplated by this Agreement. If Parent, Purchaser Parent or the Company (or any of their respective Affiliates) receives a request for additional information or documentary material from any such Governmental Entity that is related to the transactions contemplated by this Agreement, then such party will endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. The parties agree not to participate, or to permit their Affiliates to participate, in any substantive meeting or discussion with any Governmental Entity in connection with the transactions contemplated by this Agreement unless it so consults with the other party in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate. Each party will advise the other party promptly of any understandings, undertakings or agreements (oral or written) which the first party proposes to make or enter into with the FTC, the Antitrust Division or any other Governmental Entity in connection with the transactions contemplated by this Agreement. In furtherance and not in limitation of the foregoing, each party will use all reasonable efforts to resolve any objections that may be asserted with respect to the transactions contemplated by this Agreement under any antitrust, competition or trade regulatory Laws, including (subject to first having used all reasonable efforts to negotiate a resolution to any such objections) contesting and resisting any action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or the other transactions contemplated by this Agreement and to have such statute, rule, regulation, executive order, decree, injunction or administrative order repealed, rescinded or made inapplicable so as to permit consummation of the transactions contemplated by this Agreement.
(d) In furtherance and not in limitation of Notwithstanding the covenants of the parties foregoing, nothing contained in this Section 6.9Agreement shall require or obligate Parent or its Affiliates to, if any objections are asserted with respect to the transactions contemplated hereby under any antitrust Law or if any suit is instituted (or threatened to be instituted) by the FTC, Antitrust Division or any other applicable Governmental Entity challenging any of the transactions contemplated hereby as violative of any antitrust Law or which would otherwise prohibit or materially impair or materially delay the consummation of the transactions contemplated hereby, each of Parent, Purchaser and the Company shall use its reasonable efforts to resolve any such objections or suits so as to permit consummation not, without the prior written consent of the transactions contemplated by this Agreement.
(e) Notwithstanding any other provision of this Agreement to the contrary, in no event shall Parent or any of its Affiliates be required to Parent: (i) agree or proffer otherwise become subject to divest any restrictions, conditions, limitations or other understanding on or with respect to the operation of the business of Parent, any of its Affiliates, or the Company in any material respect; or (ii) agree or otherwise be required to sell or otherwise dispose of, hold separate (in through the establishment of a trust or otherwise), or take divest itself of any other action with respect tobusiness, any of the assets or businesses operations of Parent or any of its Affiliates orParent, assuming the consummation of the Merger, the Surviving Corporation or any of its Affiliates, (ii) agree or proffer to limit in any manner whatsoever or not to exercise any rights of ownership of any securities (including the Shares) or (iii) enter into any agreement that in any way limits the ownership or operation of any business of Parent, the Company, the Surviving Corporation or any of their respective Affiliates.
Appears in 1 contract
Sources: Merger Agreement (Essex Corp)
All Reasonable Efforts. (a) Upon Subject to the terms and subject to the conditions set forth in of this Agreement and in accordance with applicable LawsAgreement, each of the parties to this Agreement will Parties shall use all reasonable efforts Reasonable Efforts to take, or cause to be taken, all actions action, and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to ensure that consummate the conditions transactions contemplated by the Transaction Documents. Without limiting the generality of the foregoing, each Party shall use all Reasonable Efforts to timely make all notifications and obtain all authorizations, consents, waivers, permits, orders and approvals of all third parties necessary in connection with the consummation of the transactions contemplated by the Transaction Documents prior to the Merger set forth Closing. The Parties will coordinate and cooperate with each other in Article VII are satisfied exchanging such information and assistance as any of the Parties may reasonably request in connection with the foregoing.
(b) Seller, the Companies and Buyer shall use all Reasonable Efforts to consummate promptly and timely negotiate in advance of Closing a termination agreement relating to the Energy Supply Agreements (the “Energy Supply Termination Agreement”) in a form reasonably satisfactorily agreed upon by Seller, the Companies, Buyer and Shell.
(c) In the event that any action or proceeding is instituted (or threatened to be instituted) by a Governmental Authority challenging any of the transactions contemplated by this Agreement as promptly as practicablebeing in violation of any antitrust Law, including (i) obtaining all necessary actions or non-actions, waivers, consents and approvals from Governmental Entities and making all necessary registrations and filings and taking all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) making, as promptly as practicable (and in any event within 15 Business Days each of the date of this Agreement), an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby and not extending any waiting period under the HSR Act or entering into any agreement with the U.S. Federal Trade Commission (the “FTC”) or the Antitrust Division of the U.S. Department of Justice (the “Antitrust Division”) not to consummate the transactions contemplated by this Agreement, except with the prior written consent of the other party hereto, (iii) making, as promptly as practicable, appropriate filings under any other antitrust, competition or pre-merger notification, trade regulation law, regulation or order, (iv) subject to first having used all reasonable efforts to negotiate a resolution of any objections underlying such lawsuits or other legal proceedings, defending and contesting any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated by this Agreement, including seeking to have any stay or temporary restraining order entered by any Governmental Entity vacated or reversed and (v) executing and delivering any additional instruments necessary to consummate the transactions contemplated hereby, and to fully carry out the purposes of this Agreement; provided, however, that neither the Company nor any of its Subsidiaries Parties shall commit to the payment of any fee, penalty or other consideration or make any other concession, waiver or amendment under any Contract in connection with obtaining any consent without the prior written consent of Parent (except as required by the terms of the applicable Contract).
(b) Parent, Purchaser and the Company will cooperate and consult with each other in connection with the making of all such filings, notifications and any other material actions pursuant to this Section 6.9, subject to applicable Law, by permitting counsel for the other party to review in advance, and consider in good faith the views of the other party in connection with, any proposed material written communication to any Governmental Entity and by providing counsel for the other party with copies of all filings and submissions made by such party and all correspondence between such party (and its advisors) with any Governmental Entity and any other information supplied by such party and such party’s Affiliates to a Governmental Entity or received from such a Governmental Entity in connection with the transactions contemplated by this Agreement; provided, however, that material may be redacted on the advice of outside counsel as necessary to address good faith legal privilege or confidentiality concerns.
(c) Each of Parent, Purchaser and the Company will promptly inform the other party upon receipt of any material communication from the FTC, the Antitrust Division or any other Governmental Entity regarding any of the transactions contemplated by this Agreement. If Parent, Purchaser or the Company (or any of their respective Affiliates) receives a request for additional information or documentary material from any such Governmental Entity that is related to the transactions contemplated by this Agreement, then such party will endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and after consultation with the other partyParties and use its Reasonable Efforts to respond to, an appropriate response in compliance with such request. The parties agree not to participatecontest, or to permit their Affiliates to participate, in any substantive meeting or discussion with any Governmental Entity in connection with the transactions contemplated by this Agreement unless it so consults with the other party in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate. Each party will advise the other party promptly of any understandings, undertakings or agreements (oral or written) which the first party proposes to make or enter into with the FTC, the Antitrust Division or any other Governmental Entity in connection with the transactions contemplated by this Agreement. In furtherance and not in limitation of the foregoing, each party will use all reasonable efforts to resolve any objections that may be asserted with respect to the transactions contemplated by this Agreement under any antitrust, competition or trade regulatory Laws, including (subject to first having used all reasonable efforts to negotiate a resolution to resist any such objections) contesting and resisting any action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that delays, conditions, prohibits, prevents or restricts consummation of the Merger or the other transactions contemplated by this Agreement and to have such statute, rule, regulation, executive order, decree, injunction or administrative order repealed, rescinded or made inapplicable so as to permit consummation of the transactions contemplated by this Agreement.
(d) In furtherance and not . Notwithstanding anything in limitation of the covenants of the parties contained in this Section 6.9, if any objections are asserted with respect to the transactions contemplated hereby under any antitrust Law or if any suit is instituted (or threatened to be instituted) by the FTC, Antitrust Division or any other applicable Governmental Entity challenging any of the transactions contemplated hereby as violative of any antitrust Law or which would otherwise prohibit or materially impair or materially delay the consummation of the transactions contemplated hereby, each of Parent, Purchaser and the Company shall use its reasonable efforts to resolve any such objections or suits so as to permit consummation of the transactions contemplated by this Agreement.
(e) Notwithstanding any other provision of this Agreement to the contrary, nothing in no event this Section 6.7(c) or otherwise in this Agreement shall Parent require any Party or any of their respective Affiliates to propose, negotiate, effect or agree to, the sale, divestiture, license or other disposition of any assets or businesses of such Party or any of its Affiliates be required to (i) agree or proffer to divest or hold separate (in a trust or otherwise), or otherwise take any other action that limits the freedom of action with respect to, or its ability to retain, any of the businesses, product lines or assets or businesses of Parent or any of its Affiliates or, assuming the consummation of the Merger, the Surviving Corporation such Party or any of its Affiliates, (ii) agree or proffer to limit in any manner whatsoever or not to exercise any rights of ownership of any securities (including the Shares) or (iii) enter into any agreement that in any way limits the ownership or operation of any business of Parent, the Company, the Surviving Corporation or any of their respective Affiliates.
Appears in 1 contract
Sources: Membership Interest and Stock Purchase Agreement (Spark Energy, Inc.)
All Reasonable Efforts. (a) Upon the terms The Company and subject to the conditions set forth in this Agreement Parent shall cooperate with each other and in accordance with applicable Laws, each of the parties to this Agreement will use all commercially reasonable efforts to take, take or cause to be takentaken all actions, all actions and to do, do or cause to be donedone all things, all things necessary, proper or advisable on its part under this Agreement and Applicable Laws to ensure that the conditions to consummate and make effective the Merger set forth in Article VII are satisfied and to consummate the other transactions contemplated by this Agreement as promptly soon as practicable, including (i) obtaining preparing and filing as promptly as practicable all documentation to effect all necessary actions or non-actionsnotices, waivers, consents reports and approvals from Governmental Entities and making all necessary registrations and other filings and taking all steps as may be necessary to obtain an approval as promptly as practicable all consents, registrations, approvals, permits and authorizations necessary or waiver fromadvisable to be obtained from any Third Party or Governmental Entity to consummate the Merger or any of the other transactions contemplated by this Agreement (provided, that, notwithstanding the foregoing, in connection with obtaining such consents, the Parties agree that in no event shall Parent or its Subsidiaries be required (or the Company or its Subsidiaries, without Parent’s prior written consent, be permitted) to (A) pay, or agree or commit to avoid an action pay, to any Person whose consent is being solicited any cash or proceeding byother consideration (other than de minimis amounts), (B) incur, or agree or commit to incur, any liability (other than de minimis liabilities) due to such Person, (C) enter into any settlement, undertaking, consent decree, stipulation or agreement with any Governmental EntityEntity or (D) divest or otherwise hold separate (including by establishing a trust or otherwise), or take any other action (or otherwise agree to do any of the foregoing) with respect to any of their respective Subsidiaries or any of their respective Affiliates’ businesses, assets or properties), (ii) making, as promptly as practicable (and in the defending of any event within 15 Business Days of the date of stockholder lawsuits challenging this Agreement), an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby and not extending Agreement or any waiting period under the HSR Act or entering into any other agreement with the U.S. Federal Trade Commission (the “FTC”) or the Antitrust Division of the U.S. Department of Justice (the “Antitrust Division”) not to consummate the transactions contemplated by this Agreement, except with the prior written consent of the other party hereto, (iii) making, as promptly as practicable, appropriate filings under any other antitrust, competition or pre-merger notification, trade regulation law, regulation or order, (iv) subject to first having used all reasonable efforts to negotiate a resolution of any objections underlying such lawsuits or other legal proceedings, defending and contesting any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated by this Agreement, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity in any such stockholder lawsuit vacated or reversed reversed, and (viii) executing the execution and delivering delivery of any additional ancillary instruments necessary to consummate the transactions contemplated hereby, by this Agreement and to fully carry out the purposes of this Agreement; provided, however, that neither Agreement and the Company nor any of its Subsidiaries shall commit transactions contemplated hereby. Subject to Applicable Laws relating to the payment exchange of any feeinformation, penalty or other consideration or make any other concession, waiver or amendment under any Contract in connection with obtaining any consent without the prior written consent of Parent (except as required by the terms of the applicable Contract).
(b) Parent, Purchaser and the Company will cooperate and consult with each other in connection with shall have the making of all such filings, notifications and any other material actions pursuant to this Section 6.9, subject to applicable Law, by permitting counsel for the other party right to review in advance, and consider in good faith and, to the views extent practicable, each will consult with the other on all of the other party in connection with, any proposed material written communication information relating to any Governmental Entity and by providing counsel for the other party with copies of all filings and submissions made by such party and all correspondence between such party (and its advisors) with any Governmental Entity and any other information supplied by such party and such party’s Affiliates to a Governmental Entity or received from such a Governmental Entity in connection with the transactions contemplated by this Agreement; provided, however, that material may be redacted on the advice of outside counsel as necessary to address good faith legal privilege or confidentiality concerns.
(c) Each of Parent, Purchaser and the Company will promptly inform the other party upon receipt of any material communication from the FTC, the Antitrust Division or any other Governmental Entity regarding any of the transactions contemplated by this Agreement. If Parent, Purchaser Parent or the Company (or Company, as the case may be, and any of their respective Affiliates) receives a request for additional information or documentary material from Subsidiaries, that appears in any such Governmental Entity that is related to the transactions contemplated by this Agreement, then such party will endeavor in good faith to makefiling made with, or cause to be madewritten materials submitted to, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. The parties agree not to participate, or to permit their Affiliates to participate, in any substantive meeting or discussion with Third Party and/or any Governmental Entity in connection with the transactions contemplated by this Agreement unless it so consults with the other party in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend Merger and participate. Each party will advise the other party promptly of any understandings, undertakings or agreements (oral or written) which the first party proposes to make or enter into with the FTC, the Antitrust Division or any other Governmental Entity in connection with the transactions contemplated by this Agreement. In furtherance and not in limitation of the foregoing, each party will use all reasonable efforts to resolve any objections that may be asserted with respect to the transactions contemplated by this Agreement under any antitrust, competition or trade regulatory Laws, including (subject to first having used all reasonable efforts to negotiate a resolution to any such objections) contesting and resisting any action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or the other transactions contemplated by this Agreement and to have such statute, rule, regulation, executive order, decree, injunction or administrative order repealed, rescinded or made inapplicable so as to permit consummation of (including the transactions contemplated by this Agreement.
(d) Proxy Statement). In furtherance and not in limitation of exercising the covenants of the parties contained in this Section 6.9, if any objections are asserted with respect to the transactions contemplated hereby under any antitrust Law or if any suit is instituted (or threatened to be instituted) by the FTC, Antitrust Division or any other applicable Governmental Entity challenging any of the transactions contemplated hereby as violative of any antitrust Law or which would otherwise prohibit or materially impair or materially delay the consummation of the transactions contemplated herebyforegoing rights, each of Parent, Purchaser and the Company and Parent shall use its reasonable efforts to resolve any such objections or suits so act reasonably and as to permit consummation of the transactions contemplated by this Agreementpromptly as practicable.
(e) Notwithstanding any other provision of this Agreement to the contrary, in no event shall Parent or any of its Affiliates be required to (i) agree or proffer to divest or hold separate (in a trust or otherwise), or take any other action with respect to, any of the assets or businesses of Parent or any of its Affiliates or, assuming the consummation of the Merger, the Surviving Corporation or any of its Affiliates, (ii) agree or proffer to limit in any manner whatsoever or not to exercise any rights of ownership of any securities (including the Shares) or (iii) enter into any agreement that in any way limits the ownership or operation of any business of Parent, the Company, the Surviving Corporation or any of their respective Affiliates.
Appears in 1 contract
All Reasonable Efforts. (a) Upon the terms and subject to the conditions set forth in this Agreement and in accordance with applicable Laws, each of the parties to this Agreement will use all reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to ensure that the conditions to the Offer set forth on Annex I hereto and the conditions to the Merger set forth in Article VII are satisfied and to consummate the transactions contemplated by this Agreement as promptly as practicable, including (i) obtaining all necessary actions or non-actionsnonactions, waivers, consents and approvals from Governmental Entities and making all necessary registrations and filings and taking all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) making, as promptly as practicable (and in any event within 15 10 Business Days of the date of this AgreementDays), an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby and not extending any waiting period under the HSR Act or entering into any agreement with the U.S. Federal Trade Commission (the “FTC”) or the Antitrust Division of the U.S. Department of Justice (the “Antitrust Division”) not to consummate the transactions contemplated by this Agreement, except with the prior written consent of the other party hereto, (iii) making, as promptly as practicable, appropriate filings (a) under the EC Merger Regulation, if required, (b) under the Competition Act (Canada) and the Investment Canada Act of 1984 (Canada), if required, and (c) under any other antitrust, competition or pre-merger premerger notification, trade regulation law, regulation or order, (iv) obtaining all necessary consents and waivers under any and all Contracts, Leases and Permits to which the Company or its Subsidiaries is a party in connection with this Agreement and the consummation of the transactions contemplated hereby (including the Offer and the Merger) so as to maintain and preserve the benefits under such Contracts, Leases or Permits following the consummation of the transactions contemplated hereby (including the Offer and the Merger), (v) obtaining all consents, approvals or waivers from, or taking other actions with respect to, third parties necessary to be obtained or taken in connection with the transactions contemplated by this Agreement; provided, however, that without the prior written consent of Purchaser, the Company and its Subsidiaries may not pay or commit to pay any amount of cash or other consideration, or incur or commit to incur any liability or other obligation, in connection with obtaining such consent, approval or waiver, (vi) subject to first having used all reasonable efforts to negotiate a resolution of any objections underlying such lawsuits or other legal proceedings, defending and contesting any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated by this Agreement, including seeking to have any stay or temporary restraining order entered by any Governmental Entity vacated or reversed and (vvii) executing and delivering any additional instruments necessary to consummate the transactions contemplated hereby, and to fully carry out the purposes of this Agreement; provided, however, that neither the Company nor any of its Subsidiaries shall commit to the payment of any fee, penalty or other consideration or make any other concession, waiver or amendment under any Contract in connection with obtaining any consent without the prior written consent of Parent (except as required by the terms of the applicable Contract).
(b) The Company will use its best efforts to obtain (i) a Stock Option cancellation agreement as contemplated by Section 3.5 of this Agreement from each holder of a Stock Option that is “in-the-money” with respect to each Stock Option held by each such holder and (ii) such other cancellation agreements, in a form acceptable to Parent, from each holder of a Stock Option that is “out-of-the-money” with respect to each Stock Option held by each such holder.
(c) Parent, Purchaser and the Company will cooperate and consult with each other in connection with the making of all such filings, notifications and any other material actions pursuant to this Section 6.9, subject to applicable Law, by permitting counsel for the other party to review in advance, and consider in good faith the views of the other party in connection with, any proposed material written communication to any Governmental Entity and by providing counsel for the other party with copies of all filings and submissions made by such party and all correspondence between such party (and its advisors) with any Governmental Entity and any other information supplied by such party and such party’s Affiliates to a Governmental Entity or received from such a Governmental Entity in connection with the transactions contemplated by this Agreement; provided, however, that material may be redacted on the advice of outside counsel (x) as necessary to comply with contractual arrangements, and (y) as necessary to address good faith legal privilege or confidentiality concerns. Unless the Company reasonably believes upon advice of outside counsel that the failure to do so in a timely manner would cause it to violate any applicable Laws, the Company shall not file any such document or take such action if Purchaser has reasonably objected (and not withdrawn its objection) to the filing of such document or the taking of such action on the grounds that such filing or action would reasonably be expected to either (i) prevent, materially delay or materially impede the consummation of the transactions contemplated hereby or (ii) cause a condition set forth in Article VII to not be satisfied in a timely manner. Neither party shall consent to any voluntary extension of any statutory deadline or waiting period or to any voluntary delay of the consummation of the transactions contemplated by this Agreement at the behest of any Governmental Entity without the consent of the other party hereto.
(cd) Each of Parent, Purchaser and the Company will promptly inform the other party upon receipt of any material communication from the FTC, the Antitrust Division or any other Governmental Entity regarding any of the transactions contemplated by this Agreement. If Parent, Purchaser or the Company (or any of their respective Affiliates) receives a request for additional information or documentary material from any such Governmental Entity that is related to the transactions contemplated by this Agreement, then such party will endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. The parties agree not to participate, or to permit their Affiliates to participate, in any substantive meeting or discussion with any Governmental Entity in connection with the transactions contemplated by this Agreement unless it so consults with the other party in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate. Each party will advise the other party promptly of any understandings, undertakings or agreements (oral or written) which the first party proposes to make or enter into with the FTC, the Antitrust Division or any other Governmental Entity in connection with the transactions contemplated by this Agreement. In furtherance and not in limitation of the foregoing, each party will use all reasonable efforts to resolve any objections that may be asserted with respect to the transactions contemplated by this Agreement under any antitrust, competition or trade regulatory Laws, including (subject to first having used all reasonable efforts to negotiate a resolution to any such objections) contesting and resisting any action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Offer or the Merger or the other transactions contemplated by this Agreement and to have such statute, rule, regulation, executive order, decree, injunction or administrative order repealed, rescinded or made inapplicable so as to permit consummation of the transactions contemplated by this Agreement.
(de) In furtherance and not in limitation of the covenants of the parties contained in this Section 6.9, if any objections are asserted with respect Notwithstanding anything herein to the transactions contemplated hereby under any antitrust Law or if any suit contrary, no party is instituted (or threatened to be instituted) by the FTCrequired to, Antitrust Division or any other applicable Governmental Entity challenging any of the transactions contemplated hereby as violative of any antitrust Law or which would otherwise prohibit or materially impair or materially delay the consummation of the transactions contemplated hereby, each of Parent, Purchaser and the Company shall use its reasonable efforts may not, without the prior written consent of Purchaser, become subject to, consent or agree to, or otherwise take any action with respect to, any requirement, condition, understanding, agreement or Order to resolve any such objections sell, to hold separate or suits so as otherwise dispose of, or to permit consummation conduct, restrict, operate, invest or otherwise change the assets or business of the transactions contemplated by this Agreement.
Company or any of its Affiliates in any manner which, individually or in the aggregate with all other such requirements, conditions, understandings, agreements and Orders, is (ei) materially adverse to the Company and its Affiliates, taken as a whole, either before or after giving effect to the Offer and the Merger, or (ii) requires any material change in the conduct of business of the Company or any of its divisions or Subsidiaries as currently conducted relating to a material portion of the revenues or earnings of the Company and its Subsidiaries (either of (i) or (ii), a “Burdensome Condition”). Notwithstanding any other provision of anything in this Agreement to the contrary, in no event shall Parent or any the Company will, upon the request of its Affiliates be required to (i) agree or proffer to divest or hold separate (in a trust or otherwise)Purchaser, become subject to, or consent or agree to or otherwise take any other action with respect to, any of requirement, condition, understanding, agreement or Order to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or businesses of Parent or any of its Affiliates or, assuming the consummation business of the Merger, the Surviving Corporation Company or any of its Affiliates, (ii) agree so long as such requirement, condition, understanding, agreement or proffer to limit Order is binding on the Company only in any manner whatsoever or not to exercise any rights of ownership of any securities (including the Shares) or (iii) enter into any agreement event that in any way limits the ownership or operation of any business of Parent, the Company, the Surviving Corporation or any of their respective AffiliatesClosing occurs.
Appears in 1 contract
All Reasonable Efforts. (a) Upon Prior to the Closing, upon the terms and subject to the conditions set forth in this Agreement and in accordance with applicable LawsAgreement, each of the parties Parties agrees to this Agreement will use all reasonable efforts to take, or cause to be taken, all actions 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 (including any antitrust matters in any foreign jurisdiction) to ensure that consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement, including using reasonable efforts to accomplish the following: (i) taking all reasonable acts necessary to cause the conditions to the Merger precedent set forth in Article VII are satisfied and to consummate the transactions contemplated by this Agreement as promptly as practicablebe satisfied, including (iii) obtaining all necessary actions or non-actions, waivers, consents consents, approvals, orders and approvals authorizations from Governmental Entities (including in any foreign jurisdiction) and the making of all necessary registrations registrations, declarations and filings (including registrations, declarations and filings with Governmental Entities, if any) and taking all commercially reasonable steps as may be necessary to obtain an approval or waiver fromavoid any suit, or to avoid an action claim, action, investigation or proceeding by, by any Governmental Entity, (ii) making, as promptly as practicable (and in any event within 15 Business Days of the date of this Agreement), an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby and not extending any waiting period under the HSR Act or entering into any agreement with the U.S. Federal Trade Commission (the “FTC”) or the Antitrust Division of the U.S. Department of Justice (the “Antitrust Division”) not to consummate the transactions contemplated by this Agreement, except with the prior written consent of the other party hereto, (iii) makingobtaining all necessary consents, as promptly as practicable, appropriate filings under any other antitrust, competition approvals or pre-merger notification, trade regulation law, regulation or orderwaivers from third parties, (iv) subject to first having used all reasonable efforts to negotiate a resolution of defending any objections underlying such lawsuits suits, claims, actions, investigations or other legal proceedings, defending and contesting any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated by this Agreementhereby, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed and (v) executing and delivering execution or delivery of any additional instruments necessary to consummate the transactions contemplated herebyby, and to fully carry out the purposes of of, this Agreement; provided, however, that neither the Company nor any of its Subsidiaries shall commit to the payment of any fee, penalty or other consideration or make any other concession, waiver or amendment under any Contract in connection with obtaining any consent without the prior written consent of Parent (except as required by the terms of the applicable Contract).
(b) ParentWithout limiting the generality of the foregoing, Purchaser Purchaser, Seller and the Company will cooperate and consult with each other in connection with the making of all such filings, notifications and any other material actions pursuant to this Section 6.9, subject to applicable Law, by permitting counsel for the other party to review in advance, and consider in good faith the views of the other party in connection with, any proposed material written communication to any Governmental Entity and by providing counsel for the other party with copies of all filings and submissions made by such party and all correspondence between such party (and its advisors) with any Governmental Entity and any other information supplied by such party and such party’s Affiliates to a Governmental Entity or received from such a Governmental Entity in connection with the transactions contemplated by this Agreement; provided, however, that material may be redacted on the advice of outside counsel as necessary to address good faith legal privilege or confidentiality concerns.
(c) Each of Parent, Purchaser and the Company will promptly inform the other party upon receipt of any material communication from the FTC, the Antitrust Division or any other Governmental Entity regarding any of the transactions contemplated by this Agreement. If Parent, Purchaser or the Company (or any of their respective Affiliates) receives a request for additional information or documentary material from any such Governmental Entity that is related to the transactions contemplated by this Agreement, then such party will endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. The parties agree not to participate, or to permit their Affiliates to participate, in any substantive meeting or discussion with any Governmental Entity in connection with the transactions contemplated by this Agreement unless it so consults with the other party in advance andshall, to the extent not prohibited by such Governmental Entityotherwise completed prior hereto, gives promptly after the other party date of this Agreement, prepare and file the opportunity to attend and participate. Each party will advise the other party promptly of notifications required in any understandings, undertakings or agreements (oral or written) which the first party proposes to make or enter into with the FTC, the Antitrust Division or any other Governmental Entity foreign jurisdiction in connection with the transactions contemplated by this AgreementTransaction, if any. In furtherance Seller and not in limitation Purchaser shall respond as promptly as practicable to any inquiries or requests received from any Governmental Entity for additional information or documentations. Seller and Purchaser shall (i) give the other Party prompt notice of the foregoing, each party will use all reasonable efforts to resolve commencement of any objections that may be asserted Legal Proceeding by or before any Governmental Entity with respect to the transactions contemplated by this Agreement under Transaction or any antitrust, competition or trade regulatory Laws, including (subject to first having used all reasonable efforts to negotiate a resolution to any such objections) contesting and resisting any action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or the other transactions contemplated by this Agreement and to have such statute, rule, regulation, executive order, decree, injunction or administrative order repealed, rescinded or made inapplicable so as to permit consummation of the transactions contemplated by this Agreement.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 6.9, if any objections are asserted with respect to the transactions contemplated hereby under any antitrust Law or if any suit is instituted (or threatened to be instituted) by the FTC, Antitrust Division or any other applicable Governmental Entity challenging any of the transactions contemplated hereby as violative of any antitrust Law or which would otherwise prohibit or materially impair or materially delay the consummation of the transactions contemplated hereby, each of Parent, Purchaser and the Company shall use its reasonable efforts to resolve any such objections or suits so as to permit consummation of the transactions contemplated by this Agreement.
(e) Notwithstanding any other provision of this Agreement to the contrary, in no event shall Parent or any of its Affiliates be required to (i) agree or proffer to divest or hold separate (in a trust or otherwise), or take any other action with respect to, any of the assets or businesses of Parent or any of its Affiliates or, assuming the consummation of the Merger, the Surviving Corporation or any of its Affiliates, (ii) agree or proffer to limit in any manner whatsoever or not to exercise any rights of ownership of any securities (including the Shares) or (iii) enter into any agreement that in any way limits the ownership or operation of any business of Parent, the Company, the Surviving Corporation or any of their respective Affiliates.,
Appears in 1 contract
Sources: Securities Purchase Agreement (FMC Technologies Inc)
All Reasonable Efforts. (a) Upon Subject to the terms and subject to the conditions set forth in this Agreement and in accordance with applicable Lawsherein provided, each of the parties hereto agrees to this Agreement will use all reasonable efforts to take, or cause to be taken, all actions action, and to do, or cause to be donedone as promptly as practicable, all things necessary, proper or and advisable to ensure that the conditions to the Merger set forth in Article VII are satisfied under applicable laws and regulations to consummate the transactions contemplated by this Agreement as promptly as practicable, including (i) obtaining all necessary actions or non-actions, waivers, consents and approvals from Governmental Entities and making all necessary registrations and filings and taking all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) making, make effective as promptly as practicable (and in any event within 15 Business Days of the date of this Agreement), an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby and not extending any waiting period under the HSR Act or entering into any agreement with the U.S. Federal Trade Commission (the “FTC”) or the Antitrust Division of the U.S. Department of Justice (the “Antitrust Division”) not to consummate the transactions contemplated by this Agreement, except with including, without limitation, the prior written consent prompt preparation by Seller of all pleadings, motions, notices, statements, schedules, applications, reports and other papers reasonably necessary to commence the other party heretoChapter 11 Case; provided, (iii) makinghowever, as promptly as practicable, appropriate filings under any other antitrust, competition or pre-merger notification, trade regulation law, regulation or order, (iv) subject to first having used all reasonable efforts to negotiate a resolution of any objections underlying such lawsuits or other legal proceedings, defending and contesting any lawsuits or other legal proceedings, whether judicial or administrative, challenging that nothing in this Agreement shall be construed as an obligation, commitment or agreement of Seller to commence a Chapter 11 Case if Seller's Board of Directors does not elect to commence the consummation Chapter 11 Case or if Seller accepts a Superior Proposal or Recapitalization Transaction prior to the commencement of such case. If at any time after the transactions contemplated by this Agreement, including seeking Closing any further action is necessary or desirable to have any stay or temporary restraining order entered by any Governmental Entity vacated or reversed and (v) executing and delivering any additional instruments necessary to consummate the transactions contemplated hereby, and to fully carry out the purposes of this Agreement; provided, howeverincluding, that neither without limitation, the Company nor any execution of its Subsidiaries additional instruments, the proper officers and directors of each party to this Agreement shall commit to the payment of any fee, penalty or other consideration or make any other concession, waiver or amendment under any Contract in connection with obtaining any consent without the prior written consent of Parent (except as required by the terms of the applicable Contract)take all such necessary action.
(b) ParentAt the Closing, Purchaser Seller will assign to Buyer the non-exclusive right to enforce the rights of Seller under the confidentiality agreements entered into between any investment bank acting as agent for Seller to sell its assets, and the Company will cooperate and consult with each other in connection with prospective purchasers of the making of all such filings, notifications and Companies or any other material actions pursuant Affiliates of Seller to this Section 6.9, subject to applicable Law, by permitting counsel for the other party to review in advance, and consider in good faith extent that such rights affect the views of Companies or the other party in connection with, any proposed material written communication to any Governmental Entity and by providing counsel for the other party with copies of all filings and submissions made by such party and all correspondence between such party (and its advisors) with any Governmental Entity and any other information supplied by such party and such party’s Affiliates to a Governmental Entity or received from such a Governmental Entity in connection with the transactions contemplated by this Agreement; provided, however, that material may be redacted on the advice of outside counsel as necessary to address good faith legal privilege or confidentiality concernsCompany Subsidiaries.
(c) Each of ParentPrior to Closing, Purchaser and the Company will promptly inform the other party upon receipt of any material communication from the FTC, the Antitrust Division or any other Governmental Entity regarding any of the transactions contemplated by this Agreement. If Parent, Purchaser or the Company (or any of their respective Affiliates) receives a request for additional information or documentary material from any such Governmental Entity that is related to the transactions contemplated by this Agreement, then such party will endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. The parties agree not to participate, or to permit their Affiliates to participate, in any substantive meeting or discussion with any Governmental Entity in connection with the transactions contemplated by this Agreement unless it so consults with the other party in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate. Each party will advise the other party promptly of any understandings, undertakings or agreements (oral or written) which the first party proposes to make or enter into with the FTC, the Antitrust Division or any other Governmental Entity in connection with the transactions contemplated by this Agreement. In furtherance and not in limitation of the foregoing, each party will Seller shall use all reasonable efforts to resolve any objections that may be asserted with respect to obtain consents of counterparties identified in Section 6.1(e) of the transactions contemplated by this Agreement under any antitrust, competition or trade regulatory Laws, including (subject to first having used Disclosure Schedules and the lessor of the Maxus Energy Tower lease. Buyer shall use all reasonable efforts to negotiate a resolution to any such objections) contesting and resisting any action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is cooperate with Seller in effect and that prohibits, prevents or restricts consummation of the Merger or the other transactions contemplated by this Agreement and to have such statute, rule, regulation, executive order, decree, injunction or administrative order repealed, rescinded or made inapplicable so as to permit consummation of the transactions contemplated by this Agreement.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 6.9, if any objections are asserted with respect to the transactions contemplated hereby under any antitrust Law or if any suit is instituted (or threatened to be instituted) by the FTC, Antitrust Division or any other applicable Governmental Entity challenging any of the transactions contemplated hereby as violative of any antitrust Law or which would otherwise prohibit or materially impair or materially delay the consummation of the transactions contemplated hereby, each of Parent, Purchaser and the Company shall use its reasonable efforts to resolve any obtain such objections or suits so as to permit consummation of the transactions contemplated by this Agreementconsents.
(e) Notwithstanding any other provision of this Agreement to the contrary, in no event shall Parent or any of its Affiliates be required to (i) agree or proffer to divest or hold separate (in a trust or otherwise), or take any other action with respect to, any of the assets or businesses of Parent or any of its Affiliates or, assuming the consummation of the Merger, the Surviving Corporation or any of its Affiliates, (ii) agree or proffer to limit in any manner whatsoever or not to exercise any rights of ownership of any securities (including the Shares) or (iii) enter into any agreement that in any way limits the ownership or operation of any business of Parent, the Company, the Surviving Corporation or any of their respective Affiliates.
Appears in 1 contract
Sources: Stock Purchase Agreement (Penncorp Financial Group Inc /De/)
All Reasonable Efforts. (a) Upon the terms and subject to the conditions set forth in of this Agreement and in accordance with applicable LawsAgreement, each of the parties to this Agreement will hereto shall use all reasonable efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, all things necessary, proper or advisable to ensure that the conditions to the Merger set forth in Article VII are satisfied and under applicable Laws, to consummate the transactions contemplated by this Agreement as promptly as practicable, including (i) obtaining all necessary actions or non-actions, waivers, consents and approvals from Governmental Entities and making all necessary registrations and filings and taking all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) making, as promptly as practicable (and in any event within 15 Business Days of the date of this Agreement), an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby and not extending any waiting period under the HSR Act or entering into any agreement with the U.S. Federal Trade Commission (the “FTC”) or the Antitrust Division of the U.S. Department of Justice (the “Antitrust Division”) not to consummate make effective the transactions contemplated by this Agreement, except including as promptly as practicable following the execution and delivery of this Agreement filing with the prior written consent United States Federal Trade Commission and the United States Department of Justice the notification and report form under the HSR Act required for the transactions contemplated herein and, thereafter, furnishing as promptly as reasonably practicable any supplemental information requested in connection therewith by any Governmental Authority pursuant to the HSR Act, and, if required, the notification and filing with CFIUS. The Company and Parent each shall comply as promptly as practicable with any other Laws, rules, regulations and ordinances of any SRO or Governmental Authority that are applicable to any of the transactions contemplated herein and pursuant to which any consent, approval, order or authorization of, or registration, declaration or filing with, any SRO or Governmental Authority or any other party heretoPerson in connection with such transactions is necessary, including satisfying any continuance in membership requirements of Rule 1017 of FINRA. In connection with seeking such approval (or equivalent action or non-action) from FINRA, and from any other SRO from which it is required in connection with the change in control contemplated by this Agreement (other than the FSA or any other SRO the rules or other guidelines of which provide for submission of applications or other approval documentation by Parent or any of its subsidiaries), the Company shall lead that process, with Parent being fully and promptly informed of the process and fully and promptly providing all information, filings and signed documents requested by the SRO or reasonably requested by the Company to complete successfully such process, and such applications shall state words to the effect that: (i) no direct change in control of any of the regulated subsidiaries is occurring, (ii) in connection with the change in control of such regulated subsidiaries’ parent company (i.e., the Company), the Company is the surviving corporation and will continue its existence, and continue to own 100% of the issued and outstanding capital stock of such regulated subsidiaries, the only difference being Parent replacing, as shareholder of the Company, the previous public shareholders, (iii) makingthere will be no name change of the Company or any of its regulated subsidiaries as a result of the change in control, and (iv) there are no contemplated changes, immediately following the change of control, of the officers, directors, registered executive principals, supervisory personnel, business model, policies, procedures, operations, systems or method of doing business of or with respect to any of the regulated subsidiaries. The Company shall not submit any such applications, filings or other documents, or any amendment or supplement thereto, without providing Parent, Merger Sub and their counsel a reasonable opportunity to review and comment thereon (and such comments shall be reasonably considered by the Company). The Company agrees to consult with Parent prior to responding to any comments or requests with respect to such applications, filings or other documents and to reasonably consider its comments. The Company shall, as soon as reasonably practicable, (A) notify Parent of the receipt of any comments or requests from FINRA or such SRO with respect to such applications, filings or other documents and any request by FINRA or such SRO for any amendment to the applications or filings or for additional information and (B) provide Parent with copies of all written correspondence between the Company and its Representatives, on the one hand, and FINRA or such SRO, on the other hand, with respect to the such applications, filings or other documents. The Company and Parent each shall furnish to the others such necessary information and reasonable assistance as the other may request in connection with their preparation of any necessary filing, registration or declaration with any Governmental Authority or SRO, including under the HSR Act or required by, or appropriate with respect to, CFIUS. The Company and Parent shall keep each other apprised of the status of any communications with, and any inquiries or requests for additional information from, any SRO or Governmental Authority (or other Person regarding any of the transactions contemplated by this Agreement) in respect of any such filing, registration or declaration, and shall comply promptly with any such inquiry or request (and, unless precluded by Law, provide copies of any such communications that are in writing). Subject to the terms and conditions of this Agreement, the parties shall use all reasonable efforts and take all necessary action to obtain any approval, if required, by CFIUS, or any SRO, and any clearance under the HSR Act, or any other consent, approval, order or authorization of any Governmental Authority under United States or foreign antitrust or competition Laws, necessary in connection with the transactions contemplated herein, or to resolve any objections that may be asserted by any Governmental Authority or SRO with respect to the transactions contemplated herein.
(b) Subject to the terms and conditions of this Agreement, each party shall use all reasonable efforts to cause the Offer Closing and the Closing to occur as promptly as practicable, appropriate filings under including by defending against any other antitrustlawsuits, competition actions or pre-merger notification, trade regulation law, regulation or order, (iv) subject to first having used all reasonable efforts to negotiate a resolution of any objections underlying such lawsuits or other legal proceedings, defending and contesting any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated by this Agreementherein, including and seeking to have any preliminary injunction, temporary restraining order, stay or temporary restraining order other legal restraint or prohibition entered or imposed by any court or other SRO or Governmental Entity Authority that is not yet final and nonappealable vacated or reversed reversed.
(c) The Company and Parent will cooperate and use all reasonable efforts to obtain as promptly as practicable all consents, approvals and waivers required by third parties so that all Company Permits and Contracts of the Company and its subsidiaries will remain in full force and effect after the Effective Time.
(vd) executing Notwithstanding anything to the contrary in this Agreement: (i) neither Parent nor any of its subsidiaries shall be required by antitrust or competition Laws or in connection with any other approval or consent of any SRO, Governmental Authority or other Person to take, or agree to take, any materially adverse action or suffer any material limitation or divestiture with respect to the ownership or holding of any of their respective businesses or assets (including, following the Offer Closing or the Effective Time, any of the material businesses or assets of the Surviving Entity and delivering its subsidiaries) (and neither the Company or any additional instruments necessary of its subsidiaries shall take any such action, or agree to consummate do so, with respect to any of their respective businesses or assets without the transactions contemplated herebyprior written consent of Parent), and (ii) neither Parent nor any of its subsidiaries shall be required to fully carry out take any action by antitrust or competition Laws or in connection with any other approval or consent of any SRO, Governmental Authority or other Person that would, or could reasonably be expected to, substantially impair the purposes benefits expected, as of the date of this Agreement; provided, however, that to be realized by Parent from consummation of the Offer and the Merger (and neither the Company nor any of its Subsidiaries subsidiaries shall commit take any such actions, or agree to the payment of any feedo so, penalty or other consideration or make any other concession, waiver or amendment under any Contract in connection with obtaining any consent without the prior written consent of Parent Parent), and (except as required by the terms of the applicable Contract).
(biii) Parent, Purchaser and the Company will cooperate and consult with each other in connection with the making of all such filings, notifications and any other material actions pursuant no party to this Section 6.9, subject Agreement shall be required to applicable Law, by permitting counsel for the other party to review in advance, and consider in good faith the views of the other party in connection with, any proposed material written communication to any Governmental Entity and by providing counsel for the other party with copies of all filings and submissions made by such party and all correspondence between such party (and its advisors) with any Governmental Entity and any other information supplied by such party and such party’s Affiliates to a Governmental Entity or received from such a Governmental Entity in connection with the transactions contemplated by this Agreement; provided, however, that material may be redacted on the advice of outside counsel as necessary to address good faith legal privilege or confidentiality concerns.
(c) Each of Parent, Purchaser and the Company will promptly inform the other party upon receipt of any material communication from the FTC, the Antitrust Division or any other Governmental Entity regarding waive any of the transactions contemplated by this Agreement. If Parent, Purchaser or the Company (Offer Conditions set forth on Exhibit A or any of their respective Affiliates) receives a request for additional information or documentary material from any such Governmental Entity that is related the conditions to the transactions contemplated by this Agreement, then Merger set forth in Article VII as they apply to such party will endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. The parties agree not to participate, or to permit their Affiliates to participate, in any substantive meeting or discussion with any Governmental Entity in connection with the transactions contemplated by this Agreement unless it so consults with the other party in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate. Each party will advise the other party promptly of any understandings, undertakings or agreements (oral or written) which the first party proposes to make or enter into with the FTC, the Antitrust Division or any other Governmental Entity in connection with the transactions contemplated by this Agreement. In furtherance and not in limitation of the foregoing, each party will use all reasonable efforts to resolve any objections that may be asserted with respect to the transactions contemplated by this Agreement under any antitrust, competition or trade regulatory Laws, including (subject to first having used all reasonable efforts to negotiate a resolution to any such objections) contesting and resisting any action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or the other transactions contemplated by this Agreement and to have such statute, rule, regulation, executive order, decree, injunction or administrative order repealed, rescinded or made inapplicable so as to permit consummation of the transactions contemplated by this Agreement.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 6.9, if any objections are asserted with respect to the transactions contemplated hereby under any antitrust Law or if any suit is instituted (or threatened to be instituted) by the FTC, Antitrust Division or any other applicable Governmental Entity challenging any of the transactions contemplated hereby as violative of any antitrust Law or which would otherwise prohibit or materially impair or materially delay the consummation of the transactions contemplated hereby, each of Parent, Purchaser and the Company shall use its reasonable efforts to resolve any such objections or suits so as to permit consummation of the transactions contemplated by this Agreement.
(e) Notwithstanding any other provision of this Agreement to the contrary, in no event shall Parent or any of its Affiliates be required to (i) agree or proffer to divest or hold separate (in a trust or otherwise), or take any other action with respect to, any of the assets or businesses of Parent or any of its Affiliates or, assuming the consummation of the Merger, the Surviving Corporation or any of its Affiliates, (ii) agree or proffer to limit in any manner whatsoever or not to exercise any rights of ownership of any securities (including the Shares) or (iii) enter into any agreement that in any way limits the ownership or operation of any business of Parent, the Company, the Surviving Corporation or any of their respective Affiliates.
Appears in 1 contract
All Reasonable Efforts. (a) Upon Subject to the terms and subject to the conditions set forth in of this Agreement and in accordance with applicable LawsAgreement, each of Parent and the parties to this Agreement will Company shall, and shall cause its Subsidiaries to, use all reasonable efforts (or best efforts with respect to the covenant in Section 5.10) (i) to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to ensure that the conditions comply promptly with all legal requirements which may be imposed on such party or its Subsidiaries with respect to the Merger and, subject to the conditions set forth in Article VII are satisfied and VI hereof, to consummate the transactions contemplated by this Agreement Merger as promptly as practicable, including practicable and (iii) obtaining all necessary actions or non-actions, waivers, consents and approvals from Governmental Entities and making all necessary registrations and filings and taking all steps as may be necessary to obtain an (and to cooperate with the other party to obtain) any consent, authorization, order or approval or waiver fromof, or to avoid an action or proceeding any exemption by, any Governmental EntityEntity and any other third party which is required to be obtained by the Company or Parent or any of their respective Subsidiaries in connection with the Merger and the other transactions contemplated hereby or to satisfy the condition set forth in Section 6.2(k), and to comply with the terms and conditions of any such consent, authorization, order or approval.
(iib) makingWithout limiting the foregoing, as promptly as practicable (the Company and in any event within 15 Business Days Parent shall duly file with the FTC and the Antitrust Division of the date Department of this Agreement), an appropriate filing of a Notification Justice the notification and Report Form pursuant to report form (the “HSR Filing”) required under the HSR Act with respect to the transactions contemplated hereby and not extending any Merger as promptly as practical, but in no event later than the seventh Business Day following the date hereof. The HSR Filings shall be in substantial compliance with the requirements of the HSR Act. Each party shall cooperate with the other party to the extent necessary to assist the other party in the preparation of its HSR Filing, to request early termination of the waiting period under required by the HSR Act and, if requested, to promptly amend or entering into furnish additional information thereunder. Parent and the Company shall furnish to each other all such information as is necessary to prepare any agreement such registration, declaration or filing. Parent and the Company each shall pay the filing fees with respect to the U.S. Federal Trade Commission (HSR Filing filed by it and any other such registration, declaration or filing. Parent and the “FTC”) or the Antitrust Division Company shall keep each other apprised of the U.S. Department status of Justice any communications with, and any inquiries or requests for additional information from, any Governmental Entity with respect to the Merger.
(c) Notwithstanding anything to the “Antitrust Division”) not to consummate the transactions contemplated by this Agreement, except with the prior written consent of the other party heretocontrary, (iiii) making, as promptly as practicable, appropriate filings neither the Company nor the Parent shall be under any other antitrustobligation to litigate before or with, competition or pre-merger notificationcontest any order or decree, trade regulation law, regulation or order, (iv) subject to first having used all reasonable efforts to negotiate a resolution of defend against any objections underlying such lawsuits actions or other legal proceedings, defending and contesting any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated by this Agreement, including seeking to have any stay or temporary restraining order entered proceedings commenced by any Governmental Entity vacated in respect of the antitrust, competition, merger control or reversed similar laws and rules or regulations, and (vii) executing and delivering any additional instruments necessary to consummate the transactions contemplated hereby, and to fully carry out the purposes of this Agreement; provided, however, that neither the Company Parent nor any of its Subsidiaries or affiliates shall be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action that could reasonably be expected to limit (A) the payment freedom of any fee, penalty or other consideration or make any other concession, waiver or amendment under any Contract in connection with obtaining any consent without the prior written consent action of Parent (except as required by or its Subsidiaries or Affiliates with respect to the terms operation of, or Parent’s or its Subsidiaries’ or Affiliates’ ability to retain, the Company or any businesses, product lines or assets of the applicable Contract).
Company, or (bB) Parentthe ability to retain, Purchaser and the Company will cooperate and consult with each other in connection with the making of all such filings, notifications and own or operate any other material actions pursuant to this Section 6.9, subject to applicable Law, by permitting counsel for the other party to review in advance, and consider in good faith the views portion of the other party in connection withbusinesses, any proposed material written communication to any Governmental Entity and by providing counsel for the other party with copies product lines, or assets, of all filings and submissions made by such party and all correspondence between such party (and its advisors) with any Governmental Entity and any other information supplied by such party and such party’s Affiliates to a Governmental Entity or received from such a Governmental Entity in connection with the transactions contemplated by this Agreement; provided, however, that material may be redacted on the advice of outside counsel as necessary to address good faith legal privilege or confidentiality concerns.
(c) Each of Parent, Purchaser and the Company will promptly inform the other party upon receipt of any material communication from the FTC, the Antitrust Division or any other Governmental Entity regarding any of the transactions contemplated by this Agreement. If Parent, Purchaser or the Company (Parent or any of their respective its Subsidiaries or Affiliates) , or alter or restrict in any way the business or commercial practices of the Company, Parent or its Subsidiaries or Affiliates. If any such party or any Affiliate thereof receives a request for additional information or documentary material from any such Governmental Entity that is related with respect to the transactions contemplated by this AgreementMerger, then such party will endeavor in good faith to make, or cause to be made, as soon as reasonably practicable possible and after consultation with the other partyparties, an appropriate response in compliance with such request. The parties agree not to participateParent and the Merger Sub, or to permit their Affiliates to participateon the one hand, in any substantive meeting or discussion with any Governmental Entity in connection with and the transactions contemplated by this Agreement unless it so consults with Company, on the other party in advance andhand, to the extent not prohibited by such Governmental Entity, gives shall promptly inform the other party the opportunity to attend and participate. Each party will advise the other party promptly of any understandings, undertakings or agreements (oral or written) which material communication from the first party proposes to make or enter into with the FTCUnited States Federal Trade Commission, the Antitrust Division Department of Justice or any other Governmental Entity in connection with the transactions contemplated by this Agreement. In furtherance and not in limitation regarding any of the foregoing, each party will use all reasonable efforts to resolve any objections that may be asserted with respect to the transactions contemplated by this Agreement under any antitrust, competition or trade regulatory Laws, including (subject to first having used all reasonable efforts to negotiate a resolution to any such objections) contesting and resisting any action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or the other transactions contemplated by this Agreement and to have such statute, rule, regulation, executive order, decree, injunction or administrative order repealed, rescinded or made inapplicable so as to permit consummation of the transactions contemplated by this AgreementMerger.
(d) In furtherance and not in limitation Prior to the Closing, each party shall use reasonable best efforts to refrain from taking any action or failing to take any action, which action or failure to act would cause, or be reasonably likely to cause, the Merger to fail to qualify as a reorganization within the meaning of Section 368(a) of the covenants of the parties contained in this Section 6.9, if any objections are asserted with respect to the transactions contemplated hereby under any antitrust Law or if any suit is instituted (or threatened to be instituted) by the FTC, Antitrust Division or any other applicable Governmental Entity challenging any of the transactions contemplated hereby as violative of any antitrust Law or which would otherwise prohibit or materially impair or materially delay the consummation of the transactions contemplated hereby, each of Parent, Purchaser and the Company shall use its reasonable efforts to resolve any such objections or suits so as to permit consummation of the transactions contemplated by this AgreementCode.
(e) Notwithstanding any other provision of this Agreement to the contrary, in no event shall Parent or any of its Affiliates be required to (i) agree or proffer to divest or hold separate (in a trust or otherwise), or take any other action with respect to, any of the assets or businesses of Parent or any of its Affiliates or, assuming the consummation of the Merger, the Surviving Corporation or any of its Affiliates, (ii) agree or proffer to limit in any manner whatsoever or not to exercise any rights of ownership of any securities (including the Shares) or (iii) enter into any agreement that in any way limits the ownership or operation of any business of Parent, the Company, the Surviving Corporation or any of their respective Affiliates.
Appears in 1 contract
Sources: Merger Agreement (HPSC Inc)
All Reasonable Efforts. (a) Upon Subject to the terms and subject conditions of this Agreement, the Purchaser and the Company agree to the conditions set forth in this Agreement and in accordance with applicable Laws, each of the parties to this Agreement will use all reasonable efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, all things necessary, proper or advisable (subject to ensure that the conditions any applicable laws) to consummate and make effective the Merger set forth in Article VII are satisfied and to consummate the transactions contemplated by this Agreement as promptly as practicable, including (i) obtaining all necessary actions or non-actions, waivers, consents and approvals from Governmental Entities and making all necessary registrations and filings and taking all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) making, other Transactions as promptly as practicable (and in any event within 15 Business Days of following the date of this Agreement), an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby and not extending any waiting period under the HSR Act or entering into any agreement with the U.S. Federal Trade Commission (the “FTC”) or the Antitrust Division of the U.S. Department of Justice (the “Antitrust Division”) not to consummate the transactions contemplated by this Agreement, except with the prior written consent of the other party hereto, (iii) making, as promptly as practicable, appropriate filings under any other antitrust, competition or pre-merger notification, trade regulation law, regulation or order, (iv) subject to first having used all reasonable efforts to negotiate a resolution of any objections underlying such lawsuits or other legal proceedings, defending and contesting any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated by this Agreementexecution hereof, including seeking the taking of all actions necessary to have any stay obtain all approvals, consents, orders, exemptions or temporary restraining order entered waivers of or by any Governmental Entity vacated or reversed and (v) executing and delivering any additional instruments necessary to consummate the transactions contemplated hereby, and to fully carry out the purposes of this Agreement; provided, however, that neither the Company nor any of its Subsidiaries shall commit to the payment of any fee, penalty or other consideration or make any other concession, waiver or amendment under any Contract in connection with obtaining any consent without the prior written consent of Parent (except as required by the terms of the applicable Contract)third party.
(b) ParentSubject to the terms and conditions of this Agreement and to any applicable laws, Purchaser the parties hereto shall:
(i) as promptly as practical after the execution of this Agreement, (A) file any required notification with respect to the Merger and the Company will cooperate other Transactions with any other Governmental Entity and consult with each other (B) thereafter promptly respond to all inquiries or requests for information or documents received from any Governmental Entity;
(ii) in connection with the making Merger and other Transactions, (A) consult with each of the parties with respect to all such filings, notifications filings to be made by any party to a Governmental Entity and any information which may be supplied by any party to a Governmental Entity; (B) promptly make any required submissions under the HSR Act other material actions pursuant than those referred to this Section 6.9, in clause (i) above and promptly respond to all inquiries or requests received from the FTC or the Department of Justice for additional information or documents; (C) excluding information and materials which are subject to applicable Lawattorney client privilege or are otherwise deemed by the Purchaser to be materials which are not relevant for the Company's review, by permitting counsel for provide information to the other party which information would be considered reasonably necessary to accomplish any filings and, upon request, provide copies of any filings; and (D) promptly inform the other parties of any communication from a Governmental Entity with respect to the Merger or Transactions and, where practical, permit the other party to review in advance, and consider in good faith the views of the other party in connection with, advance any proposed material written communication to a Governmental Entity;
(iii) prior to any Governmental Entity and by providing counsel for the other party with copies of all filings and submissions made by such party and all correspondence between such party (and its advisors) meeting with any Governmental Entity in respect of any filings, investigation or other inquiry, consult with the other parties and, to the extent permitted by such Governmental Entity, give the other parties the opportunity to attend and participate, in each case to the extent practicable;
(iv) to the extent that transfers, amendments or modifications of permits or licenses granted by Government Entities (including environmental permits) are required as a result of the execution of this Agreement or consummation of any of the Transactions, use all reasonable efforts to effect such transfers, amendments or modifications;
(v) not take any action after the date hereof that would reasonably be expected to materially delay the obtaining of, or result in not obtaining, any permission, approval or consent from any Governmental Entity necessary to be obtained prior to Closing; and
(vi) subject to the limitations set forth in Section 5.5(c) hereof, use all reasonable efforts (and cooperate amongst themselves with respect thereto) to contest and resist any action by any third party or Governmental Entity, whether by legislative, administrative or judicial action, that challenges or seeks to prevent or prohibit the consummation of the Merger or any other information supplied by such party and such party’s Affiliates Transaction. Notwithstanding the foregoing, nothing in this Agreement shall be deemed to a Governmental Entity or received from such a Governmental Entity require the Purchaser to commence any litigation against any entity in connection with order to facilitate the transactions contemplated by this Agreement; provided, however, that material may be redacted on consummation of any of the advice of outside counsel as necessary to address good faith legal privilege or confidentiality concernsTransactions.
(c) Each Subject to the last sentence of ParentSection 5.5(b)(vii), Purchaser each of the parties shall use their reasonable efforts to (i) avoid the entry of, or to have vacated or terminated, any decree, order, or judgment that would restrain or delay the Closing including defending through litigation a motion for preliminary injunction asserted in any court by any third party and (ii) take all steps necessary to avoid or eliminate any impediment under any antitrust, competition, or trade regulation law that may be asserted by any Governmental Entity with respect to the Company will promptly inform the other party upon receipt of any material communication from the FTC, the Antitrust Division Merger or any other Governmental Entity regarding any Transaction so as to enable the Closing to occur as soon as reasonably possible, including proposing, negotiating, committing to and effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of the transactions contemplated by this Agreement. If Parent, Purchaser such assets or businesses of the Company (or any of their respective Affiliatesthe Subsidiaries) receives a request for additional information or documentary material from otherwise take or commit to take any such Governmental Entity actions that is related may be required in order to avoid the transactions contemplated by this Agreement, then such party will endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. The parties agree not to participateentry of, or to permit their Affiliates to participateeffect the dissolution of any injunction, temporary restraining order, or other order in any substantive meeting or discussion with any Governmental Entity in connection with the transactions contemplated by this Agreement unless it so consults with the other party in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate. Each party will advise the other party promptly of any understandings, undertakings or agreements (oral or written) which the first party proposes to make or enter into with the FTC, the Antitrust Division or any other Governmental Entity in connection with the transactions contemplated by this Agreement. In furtherance and not in limitation of the foregoing, each party will use all reasonable efforts to resolve any objections that may be asserted with respect to the transactions contemplated by this Agreement under any antitrust, competition or trade regulatory Laws, including (subject to first having used all reasonable efforts to negotiate a resolution to any such objections) contesting and resisting any action suit or proceeding and to which would otherwise have vacated, lifted, reversed the effect of preventing or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of delaying the Merger or the other transactions contemplated by this Agreement and to have such statute, rule, regulation, executive order, decree, injunction or administrative order repealed, rescinded or made inapplicable so as to permit consummation of the transactions contemplated by this AgreementClosing.
(d) In furtherance and not in limitation of Notwithstanding the covenants of the parties contained in this Section 6.9, if any objections are asserted with respect to the transactions contemplated hereby under any antitrust Law foregoing or if any suit is instituted (or threatened to be instituted) by the FTC, Antitrust Division or any other applicable Governmental Entity challenging any of the transactions contemplated hereby as violative of any antitrust Law or which would otherwise prohibit or materially impair or materially delay the consummation of the transactions contemplated hereby, each of Parent, Purchaser and the Company shall use its reasonable efforts to resolve any such objections or suits so as to permit consummation of the transactions contemplated by this Agreement.
(e) Notwithstanding any other provision of this Agreement, nothing in this Section 5.5 shall limit a party's right to terminate this Agreement pursuant to the contrary, in no event shall Parent or any of Section 7.1 so long as such party has up to then complied with its Affiliates be required to (i) agree or proffer to divest or hold separate (in a trust or otherwise), or take any other action with respect to, any of the assets or businesses of Parent or any of its Affiliates or, assuming the consummation of the Merger, the Surviving Corporation or any of its Affiliates, (ii) agree or proffer to limit in any manner whatsoever or not to exercise any rights of ownership of any securities (including the Shares) or (iii) enter into any agreement that in any way limits the ownership or operation of any business of Parent, the Company, the Surviving Corporation or any of their respective Affiliatesobligations under this Section 5.5.
Appears in 1 contract
Sources: Merger Agreement (U S Vision Inc)
All Reasonable Efforts. (a) Upon Prior to the Closing, upon the terms and subject to the conditions set forth in this Agreement and in accordance with applicable LawsAgreement, each of the parties agrees to this Agreement will use all reasonable efforts to take, or cause to be taken, all actions 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 (including under the HSR Act) to ensure that consummate and make effective, in the most expeditious manner practicable, the Merger and the other transactions contemplated by this Agreement, including using reasonable efforts to accomplish the following: (i) taking all reasonable acts necessary to cause the conditions to the Merger precedent set forth in Article VII are satisfied and to consummate the transactions contemplated by this Agreement as promptly as practicablebe satisfied, including (iii) obtaining all necessary actions or non-actions, waivers, consents consents, approvals, orders and approvals authorizations from Governmental Entities (including under the HSR Act) and the making of all necessary registrations registrations, declarations and filings (including registrations, declarations and filings with Governmental Entities, if any) and taking all commercially reasonable steps as may be necessary to obtain an approval or waiver fromavoid any suit, or to avoid an action claim, action, investigation or proceeding by, by any Governmental Entity, (ii) making, as promptly as practicable (and in any event within 15 Business Days of the date of this Agreement), an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby and not extending any waiting period under the HSR Act or entering into any agreement with the U.S. Federal Trade Commission (the “FTC”) or the Antitrust Division of the U.S. Department of Justice (the “Antitrust Division”) not to consummate the transactions contemplated by this Agreement, except with the prior written consent of the other party hereto, (iii) makingobtaining all necessary consents, as promptly as practicable, appropriate filings under any other antitrust, competition approvals or pre-merger notification, trade regulation law, regulation or orderwaivers from third parties, (iv) subject to first having used all reasonable efforts to negotiate a resolution of defending any objections underlying such lawsuits suits, claims, actions, investigations or other legal proceedings, defending and contesting any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated by this Agreementhereby, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed and (v) executing and delivering execution or delivery of any additional instruments necessary to consummate the transactions contemplated herebyby, and to fully carry out the purposes of this Agreement; providedof, however, that neither the Company nor any of its Subsidiaries shall commit to the payment of any fee, penalty or other consideration or make any other concession, waiver or amendment under any Contract in connection with obtaining any consent without the prior written consent of Parent (except as required by the terms of the applicable Contract).
(b) Parent, Purchaser and the Company will cooperate and consult with each other in connection with the making of all such filings, notifications and any other material actions pursuant to this Section 6.9, subject to applicable Law, by permitting counsel for the other party to review in advance, and consider in good faith the views of the other party in connection with, any proposed material written communication to any Governmental Entity and by providing counsel for the other party with copies of all filings and submissions made by such party and all correspondence between such party (and its advisors) with any Governmental Entity and any other information supplied by such party and such party’s Affiliates to a Governmental Entity or received from such a Governmental Entity in connection with the transactions contemplated by this Agreement; provided, however, that material may be redacted on the advice of outside counsel as necessary to address good faith legal privilege or confidentiality concerns.
(c) Each of Parent, Purchaser and the Company will promptly inform the other party upon receipt of any material communication from the FTC, the Antitrust Division or any other Governmental Entity regarding any of the transactions contemplated by this Agreement. If Parent, Purchaser or the Company (or any of their respective Affiliates) receives a request for additional information or documentary material from any such Governmental Entity that is related to the transactions contemplated by this Agreement, then such party will endeavor Notwithstanding anything in good faith to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. The parties agree not to participate, or to permit their Affiliates to participate, in any substantive meeting or discussion with any Governmental Entity in connection with the transactions contemplated by this Agreement unless it so consults with the other party in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate. Each party will advise the other party promptly of any understandings, undertakings or agreements (oral or written) which the first party proposes to make or enter into with the FTC, the Antitrust Division or any other Governmental Entity in connection with the transactions contemplated by this Agreement. In furtherance and not in limitation of the foregoing, each party will use all reasonable efforts to resolve any objections that may be asserted with respect to the transactions contemplated by this Agreement under any antitrust, competition or trade regulatory Laws, including (subject to first having used all reasonable efforts to negotiate a resolution to any such objections) contesting and resisting any action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or the other transactions contemplated by this Agreement and to have such statute, rule, regulation, executive order, decree, injunction or administrative order repealed, rescinded or made inapplicable so as to permit consummation of the transactions contemplated by this Agreement.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 6.9, if any objections are asserted with respect to the transactions contemplated hereby under any antitrust Law or if any suit is instituted (or threatened to be instituted) by the FTC, Antitrust Division or any other applicable Governmental Entity challenging any of the transactions contemplated hereby as violative of any antitrust Law or which would otherwise prohibit or materially impair or materially delay the consummation of the transactions contemplated hereby, each of Parent, Purchaser and the Company shall use its reasonable efforts to resolve any such objections or suits so as to permit consummation of the transactions contemplated by this Agreement.
(e) Notwithstanding any other provision of this Agreement to the contrary, in no event shall neither Parent or nor any of its Affiliates affiliates shall be required under any obligation to (i) agree or proffer to divest or hold separate (in a trust or otherwise), or take any other action with respect to, any effect an Action of the assets or businesses of Parent or any of its Affiliates or, assuming the consummation of the Merger, the Surviving Corporation or any of its Affiliates, (ii) agree or proffer to limit in any manner whatsoever or not to exercise any rights of ownership of any securities (including the Shares) or (iii) enter into any agreement that in any way limits the ownership or operation of any business of Parent, the Company, the Surviving Corporation or any of their respective AffiliatesDivestiture.
Appears in 1 contract
Sources: Merger Agreement (Emulex Corp /De/)
All Reasonable Efforts. (a) Upon Subject to the terms and subject to the conditions set forth in this Agreement and in accordance with applicable Lawshereof, each of the parties Parties hereto agrees to this Agreement will use all reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to ensure that the conditions to the Merger set forth in Article VII are satisfied consummate and to consummate make effective as promptly as practicable the transactions contemplated by the Merger and this Agreement as promptly as practicableAgreement, and to cooperate with each other in connection with the foregoing, including using all reasonable efforts to (ia) obtaining obtain all necessary actions or non-actions, waivers, consents and approvals from Governmental Entities other parties to material agreements, leases and making other contracts, provided that the Company shall not be required to make any payments or provide any economic benefits to third parties prior to the Effective Time in order to obtain any waivers, consents or approvals from any third parties hereunder, (b) obtain all necessary consents, approvals and authorizations as are required to be obtained under any federal, state or foreign law or regulation, (c) lift or rescind any injunction or restraining order or other order adversely affecting the ability of the Parties to consummate the transactions contemplated hereby, (d) effect any necessary registrations and filings and taking submissions of information requested by governmental authorities, and (e) fulfill all steps as may conditions to this Agreement; provided that the Company shall not be necessary required to obtain an approval or waiver fromtake, or to avoid an action or proceeding byand shall not take, any Governmental Entityaction under clauses (a), (iib) making, as promptly as practicable or (and in any event within 15 Business Days of the date d) of this Agreement)Section 5.06 unless requested by Parent, an appropriate other than the filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby and not extending any waiting period under the HSR Act or entering into any agreement with the U.S. Federal Trade Commission (the “FTC”) or the Antitrust Division of the U.S. Department of Justice (the “Antitrust Division”) not to consummate the transactions contemplated by this Agreementhereby, except with the prior written consent of the other party hereto, (iii) making, which shall be filed as promptly as practicable, appropriate filings under any other antitrust, competition or pre-merger notification, trade regulation law, regulation or order, (iv) subject to first having used all reasonable efforts to negotiate a resolution of any objections underlying such lawsuits or other legal proceedings, defending and contesting any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or practicable after the consummation of the transactions contemplated by this Agreement, including seeking to have any stay or temporary restraining order entered by any Governmental Entity vacated or reversed and (v) executing and delivering any additional instruments necessary to consummate the transactions contemplated hereby, and to fully carry out the purposes of this Agreement; provided, however, that neither the Company nor any of its Subsidiaries shall commit to the payment of any fee, penalty or other consideration or make any other concession, waiver or amendment under any Contract in connection with obtaining any consent without the prior written consent of Parent (except as required by the terms of the applicable Contract).
(b) Parent, Purchaser and the Company will cooperate and consult with each other in connection with the making of all such filings, notifications and any other material actions pursuant to this Section 6.9, subject to applicable Law, by permitting counsel for the other party to review in advance, and consider in good faith the views of the other party in connection with, any proposed material written communication to any Governmental Entity and by providing counsel for the other party with copies of all filings and submissions made by such party and all correspondence between such party (and its advisors) with any Governmental Entity and any other information supplied by such party and such party’s Affiliates to a Governmental Entity or received from such a Governmental Entity in connection with the transactions contemplated by this Agreement; provided, however, that material may be redacted on the advice of outside counsel as necessary to address good faith legal privilege or confidentiality concerns.
(c) Each of Parent, Purchaser and the Company will promptly inform the other party upon receipt of any material communication from the FTC, the Antitrust Division or any other Governmental Entity regarding any of the transactions contemplated by this Agreement. If Parent, Purchaser or the Company (or any of their respective Affiliates) receives a request for additional information or documentary material from any such Governmental Entity that is related to the transactions contemplated by this Agreement, then such party will endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in compliance with such request. The parties agree not to participate, or to permit their Affiliates to participate, in any substantive meeting or discussion with any Governmental Entity in connection with the transactions contemplated by this Agreement unless it so consults with the other party in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate. Each party will advise the other party promptly of any understandings, undertakings or agreements (oral or written) which the first party proposes to make or enter into with the FTC, the Antitrust Division or any other Governmental Entity in connection with the transactions contemplated by this Agreementdate hereof. In furtherance of and not in limitation of the foregoing, each party will use all reasonable efforts the Company shall permit Parent to resolve reasonably participate in the defense and settlement of any objections that may be asserted with respect claim, suit or cause of action relating to any Takeover Proposal, the transactions contemplated by Merger, this Agreement under any antitrust, competition or trade regulatory Laws, including (subject to first having used all reasonable efforts to negotiate a resolution to any such objections) contesting and resisting any action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or the other transactions contemplated by this Agreement and to have such statute, rule, regulation, executive order, decree, injunction or administrative order repealed, rescinded or made inapplicable so as to permit consummation of the transactions contemplated by this Agreement.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 6.9, if any objections are asserted with respect to the transactions contemplated hereby under any antitrust Law or if any suit is instituted (or threatened to be instituted) by the FTC, Antitrust Division or any other applicable Governmental Entity challenging any of the transactions contemplated hereby as violative of any antitrust Law or which would otherwise prohibit or materially impair or materially delay the consummation of the transactions contemplated hereby, each of Parent, Purchaser and the Company shall use its reasonable efforts to resolve not settle or compromise any such objections claim, suit or suits so as to permit consummation cause of the transactions contemplated by this Agreementaction without Parent’s prior written consent, which consent shall not be unreasonably withheld.
(e) Notwithstanding any other provision of this Agreement to the contrary, in no event shall Parent or any of its Affiliates be required to (i) agree or proffer to divest or hold separate (in a trust or otherwise), or take any other action with respect to, any of the assets or businesses of Parent or any of its Affiliates or, assuming the consummation of the Merger, the Surviving Corporation or any of its Affiliates, (ii) agree or proffer to limit in any manner whatsoever or not to exercise any rights of ownership of any securities (including the Shares) or (iii) enter into any agreement that in any way limits the ownership or operation of any business of Parent, the Company, the Surviving Corporation or any of their respective Affiliates.
Appears in 1 contract
All Reasonable Efforts. (a) Upon Subject to the terms and subject to the conditions set forth in this Agreement and in accordance with applicable Lawsherein, each of the parties to this Agreement will Parties shall use all reasonable efforts Commercially Reasonable Efforts to take, or cause to be taken, all actions action and to do, or cause to be done, all things necessary, proper or advisable to ensure that the conditions to the Merger set forth in Article VII are satisfied and under applicable Laws to consummate the transactions contemplated by this Agreement and make effective as promptly expeditiously as practicable, the Transactions, including (i) obtaining using all Commercially Reasonable Efforts to obtain all necessary actions or non-actions, appropriate waivers, consents and approvals from Governmental Entities and making approvals, to effect all necessary registrations and registrations, filings and taking all steps submissions, including required approvals by any Educational Agency and under the applicable state Laws and to lift any injunction or other legal bar to the Merger (and, in such case, to proceed with the Merger as may be necessary expeditiously as possible), subject, however, to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, the requisite votes of the stockholders of the Company; (ii) making, providing such information and communications to Governmental Authorities as promptly as practicable (they may reasonably request and in any event within 15 Business Days of the date of this Agreement), an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby and not extending any waiting period under the HSR Act or entering into any agreement with the U.S. Federal Trade Commission (the “FTC”) or the Antitrust Division of the U.S. Department of Justice (the “Antitrust Division”) not to consummate the transactions contemplated by this Agreement, except with the prior written consent of the other party hereto, (iii) making, as promptly as practicable, appropriate filings under any other antitrust, competition or pre-merger notification, trade regulation law, regulation or order, (iv) subject to first having used all reasonable efforts to negotiate a resolution of any objections underlying such lawsuits or other legal proceedings, defending and contesting any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated by this Agreement, including seeking to have any stay or temporary restraining order entered by any Governmental Entity vacated or reversed and (v) executing and delivering any additional instruments certificates, agreements, instruments, reports, schedules, statements, consents, documents and information necessary to consummate the transactions contemplated herebyMerger, and to fully carry carrying out the purposes of of, this Agreement; provided. Each of the Company, howeverBuyer and Merger Sub agrees that, that neither the Company nor any of its Subsidiaries shall commit to the payment of any fee, penalty or other consideration or make any other concession, waiver or amendment under any Contract in connection with obtaining any consent without the prior written consent of Parent (except as required otherwise contemplated by the terms of the applicable Contract)this Agreement, it shall not take any action, or fail to take any action, which action or failure to act would reasonably be expected to have a Company Material Adverse Effect or Buyer Material Adverse Effect.
(b) ParentIn furtherance of and without limitation of the foregoing, Purchaser each of the Company, Buyer and Merger Sub shall (i) respond as promptly as reasonably practicable to any reasonable inquiries or requests received from any Governmental Authority for additional information or documentation, (ii) promptly notify the Company will cooperate and consult with each other in connection with the making Parties hereto of all such filings, notifications and any other material actions pursuant written communication to this Section 6.9that Party or its Affiliates from any Governmental Authority and, subject to applicable Law, by permitting counsel for permit the other party Parties to review in advance, advance any proposed written communication to any of the foregoing (and consider in good faith the views of the other party parties in connection withtherewith), any proposed material written communication to any Governmental Entity and by providing counsel for (iii) provide the other party Parties hereto, subject to applicable Law, with copies of all filings material correspondence, filings, and submissions made by such party communications between them and all correspondence between such party (their Affiliates and its advisors) with their respective Representatives on the one hand, and any Governmental Entity and any other information supplied by such party and such party’s Affiliates to a Governmental Entity or received from such a Governmental Entity in connection with the transactions contemplated by this Agreement; provided, however, that material may be redacted on the advice of outside counsel as necessary to address good faith legal privilege or confidentiality concerns.
(c) Each of Parent, Purchaser and the Company will promptly inform the other party upon receipt of any material communication from the FTC, the Antitrust Division or any other Governmental Entity regarding any of the transactions contemplated by this Agreement. If Parent, Purchaser or the Company (or any Authority of their respective Affiliates) receives a request for additional information or documentary material from any such Governmental Entity that is related to the transactions contemplated by this Agreement, then such party will endeavor in good faith to make, or cause to be made, as soon as reasonably practicable and after consultation with staffs on the other partyhand, an appropriate response in compliance with such request. The parties agree not to participate, or to permit their Affiliates to participate, in any substantive meeting or discussion with any Governmental Entity in connection with the transactions contemplated by this Agreement unless it so consults with the other party in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate. Each party will advise the other party promptly of any understandings, undertakings or agreements (oral or written) which the first party proposes to make or enter into with the FTC, the Antitrust Division or any other Governmental Entity in connection with the transactions contemplated by this Agreement. In furtherance and not in limitation of the foregoing, each party will use all reasonable efforts to resolve any objections that may be asserted with respect to the transactions contemplated by this Agreement under any antitrust, competition or trade regulatory Laws, including (subject to first having used and the Merger; all reasonable efforts to negotiate with a resolution to any such objections) contesting and resisting any action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation view towards the prompt completion of the Merger or and the other transactions contemplated by this Agreement and to have such statute, rule, regulation, executive order, decree, injunction or administrative order repealed, rescinded or made inapplicable so as to permit consummation of the transactions contemplated by this AgreementTransactions.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 6.9, if any objections are asserted with respect to the transactions contemplated hereby under any antitrust Law or if any suit is instituted (or threatened to be instituted) by the FTC, Antitrust Division or any other applicable Governmental Entity challenging any of the transactions contemplated hereby as violative of any antitrust Law or which would otherwise prohibit or materially impair or materially delay the consummation of the transactions contemplated hereby, each of Parent, Purchaser and the Company shall use its reasonable efforts to resolve any such objections or suits so as to permit consummation of the transactions contemplated by this Agreement.
(e) Notwithstanding any other provision of this Agreement to the contrary, in no event shall Parent or any of its Affiliates be required to (i) agree or proffer to divest or hold separate (in a trust or otherwise), or take any other action with respect to, any of the assets or businesses of Parent or any of its Affiliates or, assuming the consummation of the Merger, the Surviving Corporation or any of its Affiliates, (ii) agree or proffer to limit in any manner whatsoever or not to exercise any rights of ownership of any securities (including the Shares) or (iii) enter into any agreement that in any way limits the ownership or operation of any business of Parent, the Company, the Surviving Corporation or any of their respective Affiliates.
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