Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall use all reasonable best efforts to take promptly, or cause to be taken, all actions, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Mergers and the other transactions contemplated by this Agreement, including (i) obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) obtaining all necessary consents, approvals or waivers from third parties, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement. (b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time. (c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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. (d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers and the other transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Macrovision Corp), Merger Agreement (Gemstar Tv Guide International Inc)
Efforts. (ai) Subject to the terms Each of Capital One, Synovus, Parent and conditions set forth in this AgreementSeller shall (and Capital One, Synovus, Parent and Seller shall cause each of the parties hereto shall their respective Affiliates to) use all its reasonable best efforts to take promptly, or cause to be taken, all actions, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Mergers and the other transactions contemplated by this Agreement, including (i) obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) obtaining all necessary consents, approvals or waivers from third parties, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated hereby and, in the case of Parent, Seller and their respective Affiliates, by this the Merger Agreement; provided, howeverand to cause the conditions set forth in Article VI to be satisfied and, in the case of Parent, Seller and their respective Affiliates, the conditions set forth in the Merger Agreement to be satisfied (it being understood that the foregoing shall not prohibit Parent or Seller from exercising any right pursuant to the Merger Agreement to terminate the Merger Agreement in no event accordance with its terms). Without limiting the generality of the foregoing, Synovus shall Galaxy (and shall cause its Affiliates to) and each of Capital One, Parent and the Seller shall (and shall cause each of their respective Affiliates to) use their respective reasonable best efforts to (A) as promptly as practicable obtain all Synovus Required Approvals, Capital One Required Approvals and Seller Required Approvals, (B) on or before April 19, 2017, make and not withdraw (without the Seller’s and Capital One’s consent, in the case of Synovus, and without Capital One’s and Synovus’s consent, in the case of Seller or Parent, and without the Seller’s and Synovus’s consent, in the case of Capital One), all registrations and filings with any Governmental Authority or other persons necessary or advisable in connection with the consummation of the transactions contemplated hereby, including the filings required of the parties hereto or their “ultimate parent entities” or “ultimate controlling persons” under any applicable Laws, and promptly make any further filings pursuant thereto that may be necessary or advisable (such registrations and filings, in the case of the Synovus Required Approvals, the “Synovus Required Filings”), (C) defend all lawsuits or other legal, regulatory, administrative or other proceedings to which it or any of its Subsidiaries, Affiliates is a party challenging or Mars affecting this Agreement or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoingAgreement, the parties hereto shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties heretoincluding those described on Schedule 5.1(a)(i), file any and all required Notification and Report Forms under in each case until the HSR Act issuance of a final, non-appealable order with respect to each such lawsuit or other proceeding, (D) seek to have lifted or rescinded any injunction or restraining order which may adversely affect the Mergers and ability of the other parties to consummate the transactions contemplated hereby, in each case until the issuance of a final, non-appealable order with respect thereto and (E) seek to resolve any objection or assertion by any Governmental Authority challenging this Agreement, and use reasonable best efforts to cause Agreement or the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (andtransactions contemplated hereby other than, in the case of MarsSynovus, Holdco in respect of a Synovus Required Approval. Notwithstanding anything to the contrary in this Agreement, Synovus may withdraw any registration or filing made pursuant to this Section 5.1(a)(i) if, after submission thereof, the Merger Subs, cause each of their respective affiliates relevant Governmental Authority to usewhich such registration or filing has been submitted (1) reasonable best efforts to cooperate with each other in has requested that such registration or filing be withdrawn or (2) informed Synovus that such registration or filing will be denied if such registration or filing is not withdrawn; provided that promptly following such request by such Governmental Authority or being so informed by such Governmental Authority (x) determining whether any filings are required Synovus provides to be made withSeller and Capital One an affidavit signed by an executive officer of Synovus setting forth the content of the applicable communication with the relevant Governmental Authority, if such communication was oral, or consentsa copy of such communication if it was written, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making Synovus consults with Capital One and Parent before such withdrawal.
(ii) In furtherance of the obligations set forth in Section 5.1(a)(i), (A) subject to Section 5.1(a)(v), Synovus shall promptly take (and shall cause each of its Affiliates to take) any and all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper necessary or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) obtain all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, Synovus Required Approvals and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers consummation of the transactions contemplated hereby in connection with obtaining the Synovus Required Approvals, in each case so as to enable the Closing parties to occur as soon as reasonably possible (and in any event no later than consummate the End Date)transactions contemplated by this Agreement, including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (yB) otherwise taking the Seller shall make, subject to the condition that the transactions contemplated hereby or committing to take thereby actually occur, any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ undertakings (including undertakings to accept operational restrictions or limitations or to make sales or other dispositions, provided that such restrictions, limitations, sales or other dispositions are conditioned upon the Surviving Corporations’consummation of the transactions contemplated hereby) as are requested by Synovus and are required to obtain such Synovus Required Approvals or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution ofof or vacate or lift, any injunctiondecrees, temporary restraining order judgments, injunctions or other order in any suit or proceeding which orders that would otherwise have the effect of preventing the Closing, or materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers and the other transactions contemplated by this Agreement. None of the parties hereto shall, directly or indirectly, through one or more of their respective Affiliates, take any action (in the case of Parent and Seller, other than exercising any right under the Merger Agreement to terminate the Merger Agreement in accordance with its terms), that would reasonably be expected to prevent or cause a material delay in the satisfaction of the conditions contained in Article VI or the consummation of the transactions contemplated hereby or, in the case of Parent and Seller, by the Merger Agreement.
Appears in 2 contracts
Sources: Framework Agreement (Cabela's Credit Card Master Note Trust), Framework Agreement (Synovus Financial Corp)
Efforts. (a) Subject to the terms and conditions set forth in of this Agreement, each of the parties hereto shall party will use all its reasonable best efforts to take promptlytake, or cause to be taken, all actions, actions and to do promptlydo, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws laws and regulations to consummate and make effective the Mergers Merger and the other transactions contemplated by this AgreementAgreement as soon as practicable after the date hereof, including including, without limitation, (i) obtaining preparing and filing, in consultation with the other party and as promptly as practicable and advisable after the date hereof, all documentation to effect all necessary actions applications, notices, petitions, filings, and other documents and to obtain as promptly as practicable all waiting period expirations or nonactions, waiversterminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits, and expirations authorizations necessary or terminations advisable to be obtained from any third party and/or any Governmental Entity in order to consummate the Merger or any of waiting periods, the other transactions contemplated by this Agreement (including the Galaxy Specified Approvals financing thereof) and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and filings and the (ii) taking of all steps as may be necessary to obtain an approvalall such waiting period expirations or terminations, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) obtaining all necessary consents, approvals or waivers from third partiesclearances, (iii) defending any lawsuits or other legal proceedingswaivers, whether judicial or administrativelicenses, challenging this Agreement or the consummation of the Mergers registrations, permits, authorizations, orders and the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreementapprovals; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement Financing and the consummation of the transactions contemplated hereby Required Indebtedness, other than notices and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law applications with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be State Regulators required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it consults with Financing and the other party in advance andRequired Indebtedness, to the extent shall be governed by Section 7.11 and not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate.
(d) this Section 7.3. In furtherance and not in limitation of the covenants foregoing, each party hereto agrees (A) to make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated hereby as promptly as practicable, and in any event within 40 calendar days after the execution of this Agreement, and to supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the parties contained applicable waiting periods under the HSR Act as soon as practicable, (B) to file all applications required to be filed with the FCC within 40 calendar days after the execution of this Agreement, (C) to file all notices and applications with State Regulators within 30 Business Days after the execution of this Agreement, (D) to file timely notices, submissions, draft agreements and amendments, or agreement termination proposals with the Team Telecom Agencies and DSS, (E) to file in this Section 5.6a timely manner all notifications and filings required under any foreign antitrust laws, including, if applicable the EUMR, as promptly as practicable, (F) to file, as promptly as practicable, all appropriate filings, notices, applications, agreement termination proposals, or similar notifications or documents required or advisable in order to obtain such approvals of the Team Telecom Agencies, DSS, and any administrative other Government Entity as required under applicable industrial security regulations and (G) make all filings required under applicable foreign investment regulations, including, if Parent determines appropriate after consultation with the Company, to CFIUS.
(b) Each of Parent and the Company shall, in connection with the efforts referenced in Section 7.3(a) to obtain all waiting period expirations or judicial action terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits, and authorizations for the transactions contemplated by this Agreement under the HSR Act, the Communications Act, the Cable Landing License Act, or proceedingany other Regulatory Law (as defined below), (i) cooperate in all respects and consult with each other in connection with any communication, filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other party and/or its counsel to have a reasonable opportunity to review in advance and comment on drafts of any communications, filings and submissions (and documents submitted therewith); (ii) promptly inform the other party of any communication received by such party from, or given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”), the FCC, any other Governmental Entity or, in connection with any proceeding by a private party, is instituted (or threatened with any other person, including by promptly providing copies to be instituted) challenging any transaction contemplated by this Agreement as violative the other party of any Lawsuch written communications, and of any material communication received or given in connection with any proceeding by a private party, in each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist case regarding any such 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 Mergers and the other transactions contemplated by this Agreement, and (iii) permit the other party to review any communication it gives to, and consult with each other in advance of any meeting substantive telephone call, or conference with the DOJ, the FTC, FCC, or such other Governmental Entity or other person, and to the extent permitted by the DOJ, the FTC, the FCC, or any other applicable Governmental Entity or other Person, give the other party and/or its counsel the opportunity to attend and participate in such meetings, substantive telephone calls and conferences, provided, however, that materials may be redacted (A) to remove references concerning the valuation of Parent, the Company or any of their Subsidiaries, (B) as necessary to comply with contractual arrangements in effect prior to the date hereof, (C) as necessary to address reasonable privilege or confidentiality concerns, and (D) as necessary to address reasonable privilege concerns, and to remove personal and confidential information provided in connection with CFIUS and/or FOCI review. Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material to be provided to the other under this Section 7.3(b) as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Centurylink, Inc)
Efforts. (a) Subject to the terms and conditions set forth in of this Agreement, the Company and Parent shall, and shall cause their respective Affiliates to, cooperate with each of the parties hereto shall other and use all their reasonable best efforts to take promptlytake, or cause to be taken, all actions, actions and to do promptlydo, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws Applicable Law to consummate and make effective the Mergers Merger and the other transactions contemplated by this AgreementAgreement as promptly as practicable, including (i) obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) obtaining all necessary consents, approvals or waivers from third partiesThird Parties, (ii) preparing and filing as promptly as practicable after the date hereof with any Governmental Authority all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, financial statements, records, applications and other documents, in each case, to the extent applicable, (iii) obtaining and maintaining all approvals, consents, registrations, Permits, authorizations, licenses, waivers and other confirmations required to be obtained from any Governmental Authority that are necessary to consummate the transactions contemplated by this Agreement, (iv) defending or contesting any lawsuits action, suit or other legal proceedings, whether judicial or administrative, proceeding challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement hereby and (ivv) the execution executing and delivery of delivering any additional instruments necessary to consummate the transactions contemplated hereby.
(b) In furtherance and not in limitation of the foregoing, each of Parent and the Company shall, and shall cause their respective Affiliates to, make (i) an appropriate filing of a Notification and Report Form pursuant to the HSR Act as promptly as practicable (and in any event within 5 Business Days after the date hereof), (ii) each other appropriate filing required pursuant to any Foreign Antitrust Law (collectively with the HSR Act, the “Antitrust Laws”) as promptly as practicable (and in any event within 15 Business Days after the date hereof), (iii) comply at the earliest practicable date with any request under any of the Antitrust Laws for additional information, documents, or other materials received by this Agreement; provided, however, that in no event shall Galaxy each of them or any of its Subsidiariestheir respective Subsidiaries or Affiliates from any Governmental Authority in respect of such filings or such transactions and (iv) cooperate with each other in connection with any such filing (including, to the extent permitted by Applicable Law, providing copies of all such documents to the non-filing parties prior to filing and considering all reasonable additions, deletions or Mars changes suggested in connection therewith), and in connection with resolving any investigation or other inquiry of any Governmental Authority under any of the Antitrust Laws with respect to any such filing or any of such transaction. Each such party shall use its Subsidiaries or Holdco be reasonable best efforts to furnish to each other all information required to pay prior to the Effective Time for any fee, penalty application or other consideration filing to be made pursuant to any third party for any consent or approval required for the consummation of Applicable Law in connection with the transactions contemplated by this Agreement under Agreement. Each such party shall as promptly as practicable inform the other parties hereto of any contract oral communication with, and provide copies of written communications with, any Governmental Authority regarding any such filings or agreement.
(b) any such transaction. No party hereto shall independently participate in any formal meeting with any Governmental Authority in respect of any such filings, investigation, or other inquiry without giving the other parties hereto prior notice of the meeting and, to the extent permitted by such Governmental Authority, the opportunity to attend and/or participate. Subject to the terms and conditions herein provided and without limiting the foregoingApplicable Law, the parties hereto will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto relating to proceedings under any of the Antitrust Laws. Any party may, as it deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other parties under this Section 8.01 as “outside counsel only”. Such materials and the information contained therein shall (i) promptlybe given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, but officers, or directors of the recipient, unless express written permission is obtained in no event later than fifteen (15) Business Days after advance from the date hereof (or such later date as may be mutually agreed in writing by source of the materials. The parties hereto), file any and all required Notification and Report Forms shall take reasonable efforts to share information protected from disclosure under the HSR Act with respect attorney-client privilege, work product doctrine, joint defense privilege or any other privilege pursuant to the Mergers this section so as to preserve any applicable privilege.
(c) The Company and the other transactions contemplated by this AgreementParent shall, and shall cause their respective Affiliates to, cooperate with each other and use their reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and use reasonable best efforts to do, or cause to be done, all other things necessary, proper or advisable under Applicable Law to consummate the Merger and make effective the other transactions contemplated herebyby this Agreement as promptly as practicable, including taking (subject to the last sentence of this paragraph): (i) selling or otherwise disposing of, or holding separate and agreeing to sell or otherwise dispose of, assets, categories of assets or businesses of the Company or Parent or their respective Subsidiaries; (ii) terminating existing relationships, contractual rights or obligations of the Company or Parent or their respective Subsidiaries; (iii) terminating any venture or other arrangement; (iv) creating any relationship, contractual rights or obligations of the Company or Parent or their respective Subsidiaries or (v) effectuating any other change or restructuring of the Company or Parent or their respective Subsidiaries (and, in each case, to enter into agreements or stipulate to the case entry of Mars, Holdco an order or decree or file appropriate applications with the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division Department of Justice, or any attorney general of any state of the United States Department in connection with any of Justicethe foregoing) (each a “Divestiture Action”). In the event Parent agrees to effect a Divestiture Action, state antitrust enforcement authorities the Company and its Subsidiaries shall, upon request by Parent, consent and/or agree as needed in order to effectuate a Divestiture Action to the extent such action relates to the Company or competition authorities its Subsidiaries or its or their businesses or assets. Further Parent and the Company shall not take, and shall not permit their respective Affiliates to take any action (including the acquisition by it or its Affiliates of any other nation interest in any Person that derives revenues from products, services or other jurisdiction lines of business similar to the Company’s products, services or lines of business) if such action would make it materially more likely that there would arise any other person may assert impediments under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Entity Authority to the consummation of the transactions contemplated hereby as promptly as practicable. In the event that any action is threatened or instituted challenging the Merger as violative of any Antitrust Law, Parent shall, and shall cause its Affiliates to, defend and contest or otherwise resolve the action (with the Company’s cooperation). In the event that any permanent or preliminary injunction or other order is entered or becomes reasonably foreseeable to be entered in any proceeding that would make consummation of the transactions contemplated hereby in accordance with the terms of this Agreement unlawful or that would restrain, enjoin or otherwise prevent or materially delay the consummation of the transactions contemplated by this Agreement, Parent shall use its reasonable best efforts to vacate, modify or suspend such injunction or order so as to permit such consummation prior to the End Date. The Company shall cooperate with Parent and shall use its reasonable best efforts to assist Parent in resisting and reducing any Divestiture Action. Parent shall, in a manner consistent with the terms and the objective of this Agreement, control and lead all actions, strategy and communications, and make all determinations as to the appropriate course of action and the timing of all actions and communications, with respect to Antitrust Laws, Governmental Authorities and all other related matters, including dealings with Governmental Authorities and any Divestiture Actions or litigation under Antitrust Laws; provided, however, that Parent shall, and shall cause its Affiliates to, to the Mergers so as extent permitted by Applicable Law and Governmental Authority, (i) without causing undue delay or materially impeding Parent’s ability to enable the Closing to occur as soon as reasonably possible (and satisfy its obligations in any event no later than the End Datethis Section 8.01(c), includingconsult with the Company in advance of any meeting, without limitationteleconference or other communication with such Governmental Authority and provide the Company with an opportunity to attend or participate in such meeting, teleconference or other communication, (xii) proposingafford the Company an opportunity to review any written advocacy materials to be submitted to such Governmental Authority in advance of the submission thereof, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (yiii) otherwise taking furnish the Company with copies of all written materials received by or committing to take any actions that after the Closing Date would limit the freedom on behalf of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assetssuch party from such Governmental Authority, in each case as may be required in order to avoid commencement of litigation seeking the entry ofextent permitted by Applicable Law. The Company shall not, without Parent’s prior written consent or request, communicate, offer, negotiate, or to effect the dissolution ofagree or bind itself or Parent, with any injunction, temporary restraining order Governmental Authority or other order third party regarding any Divestiture Action. Notwithstanding anything to the contrary in any suit or proceeding which would otherwise have this Agreement, however, neither the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy Company nor any of its Subsidiaries shall become subject propose, consent to, or take any Divestiture Action without prior written consent of Parent, and neither Parent, nor the Company, nor any of their respective Affiliates shall be obligated to consent or agree commit to any Divestiture Action unless (A) the parties are informed by the Federal Trade Commission, the Department of Justice, or otherwise take any attorney general of any state of the United States that such actions are demanded and required as a condition to providing approval or resolving proceedings under any Antitrust Law and (B) such actions, considered individually or in the aggregate, would not result in a Detriment. For the purposes of this Section 8.01(c), an action with respect to, any requirement, condition, understanding, agreement or order of so demanded and required by a Governmental Authority would be deemed to sellresult in a “Detriment” if such action, considered individually or in the aggregate with all other actions so demanded and required by a Governmental Authority would have an adverse impact that is material to hold separate or otherwise dispose of(a) the reasonably anticipated benefits to Parent of the transactions contemplated by this Agreement, or to conduct, restrict, operate, invest or otherwise change (b) the assets or business of Galaxy or any of the Parent and its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised business of the status of matters relating Company and its Subsidiaries, provided, further that in no event shall Parent be required to the completion license any of the transactions contemplated therebyIntellectual Property of Parent, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, Company or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers and the other transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Veeco Instruments Inc), Merger Agreement (Ultratech Inc)
Efforts. (ai) Subject Each of Purchaser, Parent and Seller shall (and Purchaser, Parent and Seller shall cause each of their respective Affiliates to) use its reasonable best efforts to consummate the terms transactions contemplated hereby and, in the case of Parent, Seller and their respective Affiliates, by the Merger Agreement, and to cause the conditions set forth in this AgreementArticle VI to be satisfied and, in the case of Parent, Seller and their respective Affiliates, the conditions set forth in the Merger Agreement to be satisfied (it being understood that the foregoing shall not prohibit Parent or Seller from exercising any right pursuant to the Merger Agreement to terminate the Merger Agreement in accordance with its terms). Without limiting the generality of the foregoing, Purchaser shall (and shall cause its Affiliates to) and Parent and the Seller shall (and shall cause each of their respective Affiliates to) use its reasonable best efforts to (A) as promptly as practicable obtain all Purchaser Required Approvals and Seller Required Approvals, (B) as promptly as practicable, and in any event within thirty (30) Business Days after the date hereof, make and not withdraw (without the Seller’s consent, in the case of Purchaser, and without Purchaser’s consent, in the case of Seller or Parent) all registrations and filings with any Governmental Authority or other persons necessary or advisable in connection with the consummation of the transactions contemplated hereby, including the filings required of the parties hereto shall use all reasonable best efforts to take promptly, or cause to be taken, all actionstheir “ultimate parent entities” or “ultimate controlling persons” under any applicable Laws, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and promptly make effective the Mergers and the other transactions contemplated by this Agreement, including (i) obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and any further filings and the taking of all steps as pursuant thereto that may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entityadvisable, (iiC) obtaining defend all necessary consents, approvals or waivers from third parties, (iii) defending any lawsuits or other legal proceedingslegal, whether judicial regulatory, administrative or administrative, other proceedings to which it or any of its Affiliates is a party challenging or affecting this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement Agreement, in each case until the issuance of a final, non-appealable order with respect to each such lawsuit or other proceeding, (D) seek to have lifted or rescinded any injunction or restraining order which may adversely affect the ability of the parties to consummate the transactions contemplated hereby, in each case until the issuance of a final, non-appealable order with respect thereto and (ivE) seek to resolve any objection or assertion by any Governmental Authority challenging this Agreement or the execution transactions contemplated hereby.
(ii) In furtherance of the obligations set forth in Section 5.1(a)(i), (A) Purchaser shall promptly take (and delivery shall cause each of its Affiliates to take) any additional instruments and all actions necessary or advisable in order to avoid or eliminate each and every impediment to the consummation of the transactions contemplated hereby, and obtain all approvals and consents under any Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction, so as to enable the parties to consummate the transactions contemplated by this Agreement; provided, howeverincluding the Purchaser Required Approvals, that including by placing assets in no event shall Galaxy or any of its Subsidiariestrust, capital guarantees, or Mars operational restrictions or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreementlimitations on, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and or effecting, by consent decree, hold separate order orders, trust or otherwise, the sale, divestiture license, disposition or disposition of any holding separate of, such assets or businesses of Mars, Holdco Purchaser or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its Affiliates (and the entry into agreements with, and submission to decrees, judgments, injunctions or its Subsidiaries’ (including orders of the Surviving Corporations’relevant Governmental Authority) businesses, product lines or assets, in each case as may be required in order to obtain such approvals or consents of such Governmental Authorities or to avoid commencement of litigation seeking the entry of, or to effect the dissolution ofof or vacate or lift, any injunctiondecrees, temporary restraining order judgments, injunctions or other order in any suit or proceeding which orders that would otherwise have the effect of preventing the Closing, or materially delaying the Closing consummation of the transactions contemplated by this Agreement, (B) the Seller shall make, subject to the condition that the transactions contemplated hereby or delaying the Closing beyond the End Date; thereby actually occur, any undertakings (including undertakings to accept operational restrictions or limitations or to make sales or other dispositions, provided that neither Galaxy nor any such restrictions, limitations, sales or other dispositions are conditioned upon the consummation of its Subsidiaries shall become subject to, the transactions contemplated hereby) as are requested by Purchaser and are required to obtain such approvals or consent consents of such Governmental Authorities or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose avoid the entry of, or to conducteffect the dissolution of or vacate or lift, restrictany decrees, operatejudgments, invest injunctions or orders that would otherwise change have the assets effect of preventing or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in materially delaying the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion consummation of the transactions contemplated therebyby this Agreement. None of the parties hereto shall, including promptly furnishing the other with copies of notices directly or other communications received by Galaxy indirectly, through one or Mars, as the case may be, or any more of their respective SubsidiariesAffiliates, from take any third action (in the case of Parent and Seller, other than exercising any right under the Merger Agreement to terminate the Merger Agreement in accordance with its terms), that would reasonably be expected to prevent or cause a material delay in the satisfaction of the conditions contained in Article VI or the consummation of the transactions contemplated hereby or, in the case of Parent and Seller, by the Merger Agreement.
(iii) Without limiting the generality of anything contained in this Section 5.1(a)(i), each party and/or hereto shall, subject to applicable Law and supervisory confidentiality requirements imposed by any Government Authority: (A) give the other parties prompt notice of the making or commencement of any request, inquiry, investigation, action or legal proceeding by or before any Governmental Entity Authority with respect to such transactions. Galaxy and Mars shall permit counsel for the transactions contemplated by this Agreement; (B) keep the other parties informed as to the status of any such request, inquiry, investigation, action or legal proceeding; and (C) promptly inform the other parties of any communication to or from any Governmental Authority regarding the transactions contemplated by this Agreement. Each party reasonable opportunity to review in advance, hereto will consult and cooperate with the other parties and will consider in good faith the views of the other party parties in connection withwith any filing, any proposed written communication analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity Authority in connection with the proposed transactions unless it 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.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers and the other transactions contemplated by this Agreement.
(iv) Notwithstanding the foregoing and anything else in this Agreement, nothing contained herein shall be deemed to require Purchaser or its Affiliates, or permit Parent, Seller or their respective Affiliates (without Purchaser’s prior written consent), to take any action, or commit to take any action, or agree to any condition or restriction in connection with (A) obtaining the foregoing Seller Required Approvals and Purchaser Required Approvals and any other all approvals and consents under any Laws in connection with the transactions contemplated by this Agreement that may be required by any foreign or U.S. federal, state or local Governmental Authority, or (B) obtaining the consents and approvals referred to in Section 5.1(a)(v), in each case that would reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business, operations, results of operations or financial condition of Purchaser and its Affiliates (measured on a scale relative to the Acquired Assets, the Assumed Liabilities and the Program, taken as a whole) (a “Materially Burdensome Condition”).
(v) Seller and Parent shall take any actions reasonably necessary to, and subject to Section 5.1(a)(iv), Purchaser shall take all actions reasonably necessary to, as promptly as practicable obtain any and all consents and approvals necessary under the Securitization Documents to consummate the transactions contemplated by this Agreement, the Securitization Transfer Agreement, the Assignment and Assumption Agreement and the Merger Agreement, including those set forth on Schedule 5.1(a)(v).
(vi) If the Merger Agreement shall terminate, Purchaser, Parent and Seller shall (and shall cause their respective Affiliates to) promptly cause the Program Agreement and each of the other Ancillary Agreements to be terminated effective as of the time of the termination of the Merger Agreement; provided that the parties shall first discuss in good faith with each other whether it is desirable to the parties to negotiate for execution of an alternative definitive program and related agreements.
Appears in 2 contracts
Sources: Sale and Purchase Agreement (Cabelas Inc), Sale and Purchase Agreement (Cabela's Master Credit Card Trust)
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto Company, Parent and Offeror shall use all reasonable best efforts to take promptly, or cause to be taken, all actions, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Mergers and the other transactions contemplated by this AgreementOffer, including (i) the obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Offeror Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, ; (ii) the obtaining of all necessary consents, approvals or waivers from third parties, ; (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers Offer and the other transactions contemplated by this Agreement Agreement, including by pursuing all avenues of administrative and judicial appeal; and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto Company, Parent and Offeror shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and use all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely promptly making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (ivii) use reasonable best efforts to take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject The Company, Parent and Offeror shall, cooperate and consult with each other in connection with the making of all registrations, filings, notifications, communications, submissions, and any other material actions pursuant to this Section 4.03, and subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy the Company, on the one hand, and Mars Parent and Offeror, on the other hand, shall keep each other apprised on a current basis of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy the Company, Parent or MarsOfferor, as the case may be, or any of their respective SubsidiariesSubsidiaries or Affiliates, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy Subject to applicable Law relating to the exchange of information, the Company, on the one hand, and Mars Parent and Offeror, on the other hand, shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed notifications or filings and any written communications or submissions, and with respect to any such notification, filing, written communication or submission, any documents submitted therewith to any Governmental Entity; provided, however, that (i) no party shall be responsible for translating any materials in English, Chinese or another language into a different language or for the opportunity of the other party’s counsel to review and comment on materials in any language other than the original language of such materials and (ii) materials may be redacted (x) by the Company to remove proposals from third parties with respect thereto (subject to the Company’s obligations under Section 4.02), (y) by the Company or Offeror as necessary to comply with contractual agreements, and (z) by the Company or Offeror as necessary to address privilege or confidentiality concerns. Each of Galaxy the Company, on the one hand, and Mars Parent and Offeror, on the other hand, agrees not to participate in any substantive meeting or discussion, either in person Person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if If any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy the Company, on the one hand, and Mars Parent and Offeror, on the other hand, shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers Offer and the other transactions contemplated by this Agreement. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 4.03 shall limit a party’s right to terminate this Agreement pursuant to Article V so long as such party has, prior to such termination, complied with its obligations under this Section 4.03.
(e) Without limiting any other obligation under this Agreement, during the period from the date of this Agreement until the Offer Closing Date, each of the Company, Parent and Offeror shall not take or agree to take any action that would reasonably be expected to prevent or delay the parties from obtaining any Governmental Approval in connection with the Offer, or to prevent or materially delay or impede the consummation of the Offer.
Appears in 2 contracts
Sources: Investment and Tender Offer Agreement (Global Aviation Leasing Co., Ltd.), Investment and Tender Offer Agreement (Avolon Holdings LTD)
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall use all its reasonable best efforts to take promptly, or to cause to be taken, all actions, and to do promptly, or to cause to be done, and to assist and to cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Mergers Merger and the other transactions contemplated by this Agreementhereby, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Company Approvals and the Mars Specified Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance clearance, or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers Merger and the other transactions contemplated by this Agreement hereby and (iv) the execution and delivery of any additional instruments reasonably necessary to consummate the transactions contemplated by this Agreementhereby; provided, however, that in no event shall Galaxy or any of its SubsidiariesParent, or Mars Merger Sub, the Company or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty penalties or other consideration to any third party for to obtain any consent or approval required for the consummation of the transactions contemplated by this Agreement Merger under any contract or agreementContract.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto Company and Parent shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto)hereof, file any and all required Notification and Report Forms required under the HSR Act with respect to the Mergers Merger and the other transactions contemplated by this Agreementhereby, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; , (ii) if required, promptly make an appropriate filing under the ECMR, and use (and, in reasonable best efforts to obtain a decision from the case European Commission allowing the consummation of Mars, Holdco or the Merger Subsand the other transactions contemplated hereby, cause each of their respective affiliates to use(iii) use reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; , (iiiiv) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Regulatory Law or by such Governmental Entity; , and (ivv) use reasonable best efforts to take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the Merger and the other transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Regulatory Law with respect to the Merger and the other transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers Merger so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, limitation (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco Parent or their respective its Subsidiaries or affiliates, Affiliates or of Galaxy the Company or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit limits the freedom of Holdco Parent or its Subsidiaries’ (including the Surviving Corporations’Corporation’s) or affiliatesAffiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’Corporation’s) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy the Company nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy the Company or any of its SubsidiariesAffiliates, unless such requirement, condition, understanding, agreement or order is binding on Galaxy the Company only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy the Company and Mars Parent shall keep each other apprised of the status of matters relating to the completion of the Merger and the other transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy the Company or MarsParent, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy The Company and Mars Parent shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy the Company and Mars Parent agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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.
(d) In Subject to the rights of Parent in Section 5.11, and in furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging the Merger or any other transaction contemplated by this Agreement as violative of any Regulatory Law, each of Galaxy the Company and Mars Parent shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers and the Merger or any other transactions contemplated by hereby. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.6 shall limit a party’s right to terminate this Agreement pursuant to Section 7.1(b)(i) or (ii) so long as such party has, prior to such termination, complied with its obligations under this Section 5.6.
(e) For purposes of this Agreement, “Regulatory Law” means any and all state, federal and foreign statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other Laws requiring notice to, filings with, or the consent, clearance or approval of, any Governmental Entity, or that otherwise may cause any restriction, in connection with the Merger and the transactions contemplated thereby, including (i) the S▇▇▇▇▇▇ Act of 1890, the C▇▇▇▇▇▇ Antitrust Act of 1914, the HSR Act, the Federal Trade Commission Act of 1914, the ECMR and all other Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening competition through merger or acquisition, (ii) any Law governing the direct or indirect ownership or control of any of the operations or assets of the Company and its Subsidiaries or (iii) any Law with the purpose of protecting the national security or the national economy of any nation.
Appears in 2 contracts
Sources: Merger Agreement (Leever Daniel H), Merger Agreement (Court Square Capital Partners II LP)
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall use all reasonable best efforts to take promptly(and shall cause each of their respective Affiliates to) promptly take, or cause to be taken, all actions, and to do promptlypromptly do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to cause the conditions to Closing set forth in Article 6 of this Agreement to be satisfied and to consummate and make effective the Mergers and the other transactions contemplated by this AgreementAgreement as promptly as practicable after the date of this Agreement and in any event prior to the End Date, including (i) the obtaining of all necessary actions or nonactions, authorizations, permits, waivers, consents, clearances, approvals, approvals and expirations or terminations of waiting periodsperiods (collectively, “Consents”), including the Galaxy Specified Company Approvals and the Mars Specified Parent Approvals, from Governmental Entities and the making of all necessary registrations registrations, notices, notifications, petitions, applications, reports and other and filings and the taking of all steps as may be necessary necessary, proper or advisable to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers Consents from third parties, (iii) the defending of any Actions, lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement (including the Voting Trust), or seeking to prohibit or delay the Closing and (iv) the execution and delivery of any additional instruments necessary necessary, proper or advisable to consummate consummate, and to fully carry out the purposes of the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy either the Company or Parent or any of its Subsidiaries, or Mars or any of its their respective Subsidiaries or Holdco be required to pay prior to the First Effective Time any fee, penalty or other consideration to any third party for any consent or approval Consent required for or triggered by the consummation of the transactions contemplated by this Agreement under any contract or agreementagreement or otherwise.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto Company, Parent and each Merger Sub shall (i) promptly, but in no event later than fifteen (15) 30 Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto)of this Agreement, file any and all notification and report forms to the COFECE and the IFT required Notification and Report Forms under the HSR Act applicable Law with respect to the Mergers and the other transactions contemplated by this Agreement, and use reasonable best efforts take all other actions necessary to cause the expiration or termination of any applicable waiting periods under applicable Law as soon as practicable after the HSR Act; date of this Agreement, (ii) use take all actions with CFIUS as may be advisable under applicable Law to obtain Completion of the CFIUS Process with respect to the transactions contemplated by this Agreement, including (andA) promptly, but in no event later than 10 Business Days after the date of this Agreement, jointly providing notification to CFIUS of the execution of this Agreement, (B) promptly, and in no event later than 10 Business Days after the Closing, submitting a draft CFIUS Joint Voluntary Notification to CFIUS, (C) submitting a final Joint Notice to CFIUS after promptly resolving all comments to the draft CFIUS Joint Voluntary Notice from CFIUS and (D) in the case of Marsa CFIUS Declaration, Holdco submitting a CFIUS Joint Voluntary Notification if CFIUS so requests or informs the Merger Subsparties that it is not able to conclude action under Section 721 with respect to the Mergers and the other transactions contemplated by this Agreement on the basis of such CFIUS Declaration, cause each of their respective affiliates to use(iii) reasonable best efforts to cooperate with each other in (xA) determining whether any other filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods Consents are required to be obtained from, or with respect to, any third parties or Governmental Entities, including under other Governmental Entities applicable Antitrust Laws and/or in connection with the Company Approvals and Parent Approvals, in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (yB) timely promptly making all such filings and timely obtaining all such consentsConsents, permits, authorizations or approvals; (iiiiv) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; , including responding to any request for information from CFIUS in the applicable timeframe set forth in 31 C.F.R. Part 800, subject to any extensions of such time that may be granted by CFIUS staff upon request of a party to the Joint Notice, and (ivv) other than with respect to the STB Voting Trust Opinion, the STB Voting Trust Approval (if required) and the STB Final Approval, which are discussed in Section 5.8(c), take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, any state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction authorities, CFIUS, or any other person Governmental Entity or other Person may assert under any Law (including in connection with the Company Approvals and Parent Approvals) with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon promptly as reasonably possible practicable after the date of this Agreement, including (and in any event no later than the End Date), including, without limitation, (xA) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture divestiture, license, hold separate or disposition of any and all of the share capital or other equity interest, assets (whether tangible or intangible), products or businesses of Mars, Holdco or their respective Parent and its Subsidiaries or affiliatesof the Company and its Subsidiaries, or of Galaxy or its Subsidiaries and (yB) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco Parent’s or its Subsidiaries’ (including the Second Surviving Corporations’Corporation’s) or affiliates’ freedom of action with respect to, or its their ability to retain, one or more of its or its their Subsidiaries’ (including the Second Surviving Corporations’Corporation’s) assets (whether tangible or intangible), products, or businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which that would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End DateClosing; provided provided, that neither Galaxy the Company nor any of its Subsidiaries shall be required to become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to divest, license, hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets assets, operations or business of Galaxy the Company or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy or otherwise applicable to the Company or its Subsidiaries only from and after the First Effective Time in the event that the Closing occurs; provided that none of Mars. Notwithstanding the foregoing, Holdco or other than with respect to the Merger Subs STB Voting Trust Opinion, the STB Voting Trust Approval (if required) and the STB Final Approval, which are discussed in Section 5.8(c), nothing in this Section 5.8 shall be required deemed to require Parent or any of its Affiliates to take any of the actions described action, or commit to take any action, or agree to any condition or restriction in clauses (iv)(x) or (y) above connection with obtaining any Parent Approvals that would reasonably be expected to have a Parent Material Adverse Effect with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy Parent and their respective its Subsidiaries, taken as a whole, at after giving effect to the Mergers (measured on a scale relative to the Company and its Subsidiaries, taken as a whole). Except as otherwise permitted under this Agreement (including pursuant to the authority granted to Parent under Section 5.8(e)), the Company, Parent and each Merger Sub shall not (and shall cause their Subsidiaries not to) take or after agree to take any action that would be reasonably likely to prevent or materially delay the Effective TimeClosing. In the event that any information in the filings submitted pursuant to this Section 5.8(b) or any such supplemental information furnished in connection therewith is deemed confidential by either party, the parties shall maintain the confidentiality of the same, and the parties shall seek authorization from the applicable Governmental Entity to withhold such information from public view.
(c) Subject In furtherance and not in limitation of the other covenants of the parties contained in this Section 5.8:
(i) (A) Parent shall, within two Business Days after the date of this Agreement, submit to the STB a copy of the form of voting trust agreement attached hereto as Exhibit A (with such changes as may be made in accordance with Section 5.8(f)) (the “Voting Trust Agreement”), and (B) Parent and the Company shall use their reasonable best efforts to solicit, as promptly as practicable thereafter, a written informal advisory opinion of the STB staff to the effect that the proposed deposit of all outstanding shares of the Second Surviving Corporation into an irrevocable voting trust (the “Voting Trust” and such deposit, the “Voting Trust Transaction”) immediately following the completion of the Post-Closing Contributions, subject to such Voting Trust Agreement, will preclude unlawful control of the Company by Parent (the “STB Voting Trust Opinion”); provided, that if the STB or the STB staff determines that the approval or authorization of the STB is required in order to consummate the Voting Trust Transaction (the “STB Voting Trust Approval”) and notifies Parent or the Company of such determination or otherwise makes such determination public, Parent and the Company shall use reasonable best efforts to obtain, as promptly as practicable thereafter, the STB Voting Trust Approval;
(ii) each of Parent and the Company shall, as promptly as practicable, but in no event later than two Business Days after the date of this Agreement, file with the STB a notice of intent to file the appropriate and necessary documentation for the approval of the Mergers and the transactions contemplated hereby (the “STB Approval Application”);
(iii) each of Parent and the Company shall, as promptly as promptly as practicable, but in no event later than six months, after the date of this Agreement, file the STB Approval Application with the STB and shall use its reasonable best efforts to obtain, as promptly as practicable, the final and non-appealable approval or exemption by the STB of the Mergers and the other transactions contemplated hereby pursuant to 49 U.S.C. § 11323 et seq. (the “STB Final Approval”);
(iv) each of Parent and the Company shall use their reasonable best efforts to (A) prosecute all such filings and other presentations made, and promptly make any subsequent filings or presentations, with the STB with diligence, (B) diligently oppose any third party’s objections to, appeals from or petitions to reconsider or reopen any approval, opinion, exemption or other authorization obtained from the STB, and (C) take all such further action as in the reasonable judgment of Parent and the Company may facilitate obtaining the STB Final Approval; and
(v) each of Parent and Company shall promptly furnish any information requested by CFIUS prior to filing of the draft CFIUS Joint Voluntary Notification and/or Joint Notice with CFIUS, including information relating to the Voting Trust Transaction.
(d) The Company, Parent and each Merger Sub shall cooperate and consult with each other in connection with the making of all registrations, filings, notifications, communications, submissions and any other actions pursuant to this Section 5.8(d), and, subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy the Company, on the one hand, and Mars Parent and each Merger Sub, on the other hand, shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly informing and furnishing the other with copies of notices or other communications received or given by Galaxy the Company or MarsParent, as the case may be, or any of their respective Subsidiaries, from or to any third party and/or any Governmental Entity with respect to such transactions. Galaxy Subject to applicable Law relating to the exchange of information, the Company, on the one hand, and Mars Parent and each Merger Sub, on the other hand, shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed notifications or filings and any written communications or submissions, and with respect to any such notification, filing, written communication or submission, any documents submitted therewith to any Governmental EntityEntity (except for any exhibits to such communications providing the personal identifying information required by 31 C.F.R. Section 800.502(c)(5)(vi) or that otherwise is requested by any Governmental Entity to remain confidential from the other parties); provided, that materials may be redacted (i) to remove references concerning the valuation of the businesses of the Company and its Subsidiaries, or proposals from third parties with respect thereto, (ii) as necessary to comply with contractual agreements and (iii) as necessary to address reasonable privilege or confidentiality concerns. The parties shall take reasonable efforts to share information protected from disclosure under the attorney-client privilege, work product doctrine, joint defense privilege or any other privilege pursuant to this Section 5.8 in a manner so as to preserve the applicable privilege. Each of Galaxy the Company, Parent and Mars the Merger Subs agrees not to initiate or agree to participate in any substantive meeting or discussion, either in person or by telephonetelephone or videoconference, with any Governmental Entity in connection with the proposed transactions unless it 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.
(de) In furtherance and not in limitation Subject to the obligations of the covenants of the parties contained in this Section 5.65.8, if Parent shall, acting reasonably, devise and implement the strategy and timing for obtaining any administrative or judicial action or proceeding, including Consents required under any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction applicable Law in connection with the transactions contemplated by this Agreement as violative and Parent shall, for the avoidance of any Lawdoubt, each have the final authority over the development, presentation and conduct of Galaxy and Mars the STB case. Parent shall cooperate take the lead in all respects meetings and communications with each other any Governmental Entity in connection with obtaining such Consents; provided, that Parent shall consult in advance with the Company and in good faith take the Company’s views into account regarding the overall strategy and timing. The Company and its Subsidiaries shall use their respective reasonable best efforts to contest and resist not initiate any such action discussions or proceeding and proceedings with any Governmental Entity, or take or agree to have vacatedtake any actions, lifted, reversed restrictions or overturned conditions with respect to obtaining any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is Consents in effect and that prohibits, prevents or restricts consummation of connection with the Mergers and the other transactions contemplated by this AgreementAgreement without the prior written consent of Parent.
(f) Subject to Section 5.17(a), applicable Law and to the rules, regulations and practices of the STB, the Voting Trust Agreement may be modified or amended at any time by Parent in its sole discretion; provided, that (i) prior to the First Effective Time, the Voting Trust Agreement may not be modified or amended without the prior written consent of the Company unless such modification or amendment is not inconsistent with this Agreement and is not adverse to the Company or its stockholders and would not reasonably be expected to have a material and adverse effect on receipt of STB Voting Trust Opinion or, if required, the STB Voting Trust Approval, and (ii) whether prior to or after the First Effective Time, the Voting Trust Agreement may not be modified or amended without the prior written consent of the Company if su
Appears in 2 contracts
Sources: Merger Agreement (Kansas City Southern), Merger Agreement (Canadian Pacific Railway LTD/Cn)
Efforts. (a) Subject to Upon the terms and subject to the conditions set forth in of this Agreement, each of the parties hereto Parties shall use all its commercially reasonable best efforts to take promptlytake, or cause to be taken, all actions, and to do promptlydo, or cause to be done, and to assist and cooperate with the other parties Parties in doing, all things necessary, proper or advisable under applicable Laws Law to consummate and make effective the Mergers and the other transactions contemplated by this AgreementAgreement as promptly as practicable, including including: (i) obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals, the preparation and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making filing as promptly as practicable of all necessary registrations applications, notices, petitions, registrations, filings, ruling requests, and filings other documents, and the taking of all steps as may be necessary necessary, to obtain an approvalas promptly as practicable all consents, clearance waivers, licenses, orders, registrations, approvals, permits, rulings, authorizations and clearances necessary or waiver from, or advisable to avoid an action or proceeding by, be obtained from any Governmental EntityAuthority in order to consummate the transactions contemplated by this Agreement, (ii) the obtaining of all other necessary consents, approvals Consents or waivers from third parties, provided that, other than payments required to be made pursuant to Section 6.4(b)(i), none of the Seller, any Company or its Subsidiaries, or the Buyer shall be obligated to make any payment in connection with seeking such Consents or waivers or shall have any liability for failure to obtain any such Consents or waivers, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement Agreement, and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the other terms and conditions herein provided and without limiting the foregoing, the parties hereto Seller shall cause its Subsidiaries and Seller Parent to, and the Buyer shall cause each Buyer Parent to:
(i) promptly, but use their commercially reasonable efforts to cooperate with one another in no event later than fifteen (15A) Business Days after the date hereof determining whether filings are required (or such later date as may be mutually agreed in writing considered by the parties heretoParties to be advisable) under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976 and the rules and regulations thereunder (“HSR Act”), file any and all required Notification and Report Forms (B) to make their respective filings under the HSR Act within 10 business days after execution of this Agreement;
(ii) promptly notify each other of any communication concerning this Agreement and the transactions contemplated hereunder from any Governmental Authority and consult with respect and permit the other Party to review in advance any proposed communication concerning this Agreement and the transactions contemplated hereunder to any Governmental Authority;
(iii) not agree to participate in any meeting or substantive discussion (including any discussion relating to the Mergers antitrust merits, any potential remedies, commitments or undertakings, the timing of any waivers, consents, approvals, permits, orders or authorizations, and any agreement regarding the other timing of consummation of the transactions contemplated by this Agreement, and use reasonable best efforts ) with any Governmental Authority relating to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of investigation concerning this Agreement and the consummation of or the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions hereunder unless it consults with the other party Party and its Representatives in advance andand invites the other Party’s Representatives to attend unless the Governmental Authority prohibits such attendance;
(iv) promptly furnish the other Party, subject in appropriate cases to appropriate confidentiality agreements to limit disclosure to outside lawyers and consultants, with draft copies prior to submission to a Governmental Authority, with reasonable time and opportunity to comment, of all correspondence, filings and communications (and memoranda setting forth the substance thereof) that they, their Subsidiaries or their respective Representatives intend to submit to any Governmental Authority, it being understood that correspondence, filings and communications received from any Governmental Authority shall be immediately provided to the extent not prohibited other Party upon receipt;
(v) promptly furnish the other Party, subject in appropriate cases to appropriate confidentiality agreements to limit disclosure to outside lawyers and consultants, with such necessary information and reasonable assistance as such other Party and its Subsidiaries may reasonably request in connection with their preparation of necessary filings, registrations or submissions of information to any Governmental Authority, including any filings necessary or appropriate under the provisions of the HSR Act; and
(vi) deliver to the other Party’s outside counsel complete copies of all documents furnished to any Governmental Authority as part of any filing.
(c) The Buyer shall use commercially reasonable efforts to eliminate any concern on the part of any Governmental Authority regarding the legality of the transactions contemplated by this Agreement under the HSR Act; provided, however, that in no event shall Buyer be obligated to take any action to sell or dispose of any particular businesses, product lines, assets or voting securities, or take any other similar actions to secure antitrust clearance from such Governmental Entity, gives the other party the opportunity to attend and participateAuthority.
(d) In furtherance addition to the foregoing, the Buyer agrees to provide such assurances as to financial capability, resources and not in limitation of the covenants of the parties contained in this Section 5.6, if creditworthiness as may be reasonably requested by any administrative third party whose consent or judicial action or proceeding, including any proceeding by a private party, approval is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers and the other transactions contemplated by sought under this Agreement.
(e) Whether or not the Acquisition is consummated, each Party shall be responsible for all filing fees and payments imposed on such Party by any Governmental Authority in order to obtain any consents, approvals or waivers pursuant to this Section 6.4.
Appears in 2 contracts
Sources: Membership Interest Purchase Agreement (American Midstream Partners, LP), Membership Interest Purchase Agreement (Green Plains Inc.)
Efforts. (a) Subject to the terms and conditions set forth in this Agreementhereof, each of the parties party hereto shall use all its reasonable best efforts to take promptlytake, or cause to be taken, all actions, actions and to do promptlydo, or cause to be done, and to assist and cooperate with the other parties in doing, all things reasonably necessary, proper or advisable under applicable Laws Law to consummate and make effective the Mergers and the other transactions contemplated by this Agreementhereby as promptly as practicable, including (i) obtaining using its reasonable best efforts to obtain or make all necessary actions or nonactions, waivers, consents, clearances, approvals, appropriate filings required under applicable Law and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, lift any Governmental Entity, (ii) obtaining all necessary consents, approvals or waivers from third parties, (iii) defending any lawsuits injunction or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary bar to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under as promptly as practicable after the date of this Agreement. None of the parties shall knowingly take, cause or permit to be taken any contract action which would reasonably be expected to materially delay or agreement.prevent consummation of the transactions contemplated by this Agreement. 67
(b) Subject The Company shall use its reasonable best efforts to obtain any consents required pursuant to the terms and conditions herein provided and without limiting Material Contracts in connection with the foregoing, consummation of the parties hereto shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and Parent shall use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) its reasonable best efforts to cooperate with each other the Company in (x) determining whether such efforts. Anything to the contrary in this Agreement notwithstanding, nothing herein shall obligate or be construed to obligate the Company or any filings are required of its Affiliates to be made withmake, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be takenmade, all other actions and doany payment to any third party in order to obtain the consent or approval of such third party under any Material Contract or otherwise. Anything to the contrary in this Agreement notwithstanding, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates Parent and ▇▇▇▇▇▇ Sub agrees that neither the Company nor any of its Affiliates shall have any liability whatsoever to takeParent or Merger Sub arising out of or relating to the failure to obtain any such consent and no representation, warranty or covenant herein shall be breached or deemed breached, no condition shall be deemed not satisfied and no termination right shall be deemed triggered as a result of such failure.
(c) all such further action as may be necessary promptly to resolve such objectionsThe Company and Parent will, if anywithin ten (10) Business Days after the date hereof, as file with the United States Federal Trade Commission, Commission (the “FTC”) and the Antitrust Division of the United States Department of JusticeJustice (the “DOJ”) the notification and report forms required for the transactions contemplated hereby, state antitrust enforcement authorities or competition authorities and subsequent to such filings, any supplemental information that may be requested in connection therewith pursuant to the HSR Act, which notification and report forms and supplemental information will comply in all material respects with the requirements of the HSR Act. Each of Parent and the Company will promptly furnish to the other (x) all necessary information as the other may reasonably request in connection with the preparation of any filing or submission pursuant to the HSR Act and (y) copies of all written communications (and memoranda setting forth the substance of any oral communication) with the FTC or the DOJ in connection with the transactions contemplated by this Agreement. To the extent practicable, each of Parent and the Company will consult with the other nation prior to any meetings, by telephone or in person, with the staff of the FTC or the DOJ in connection with the transactions contemplated by this Agreement, and each of Parent and the Company will have the right to have a representative present at any such meeting to the extent permitted by such Governmental Authority. Parent shall pay all filing fees required with respect to the notification, report and other jurisdiction requirements of the HSR Act.
(d) The parties shall (i) respond as promptly as practicable to any inquiries or requests for documentation or information or any request for additional information (a “second request”) received from the FTC or the DOJ and to all inquiries and requests received from any other person Governmental Authority in connection with Competition Law matters, and (ii) use their reasonable best efforts to resolve objections, if any, as may assert under be asserted by any Law Governmental Authority with respect to the transactions contemplated hereby, by this Agreement under any Competition Laws and to avoid cause the waiting periods, approvals or eliminate other requirements under the HSR Act and all other Competition Laws to terminate or expire or be obtained at the earliest possible date.
(e) Without limiting the generality of the foregoing, each party to this Agreement shall: (i) cooperate fully with the other parties hereto, shall execute and every impediment under any Law that deliver such further documents, certificates, agreements and instruments and shall take such other actions as may be asserted reasonably requested by any Governmental Entity with respect other party hereto to evidence or reflect the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ Merger (including the Surviving Corporations’execution and delivery of all documents, certificates, agreements and instruments reasonably necessary for all filings hereunder); (ii) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ give all notices (including the Surviving Corporations’if any) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if be made and given by such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers Merger and the other transactions contemplated by this Agreement; (iii) use reasonable best efforts to obtain each approval, consent, ratification, permission, waiver or authorization required to be obtained by such party in connection with the Merger or any of the other transactions contemplated by this Agreement; and (iv) use reasonable best efforts to lift any restraint, injunction or other legal bar to the Merger. In furtherance of the foregoing, each of Parent and ▇▇▇▇▇▇ Sub agrees to provide such assurances as to financial capability, resources and creditworthiness as may be reasonably requested by any Governmental Authority or other Person whose consent or approval is sought hereunder. For purposes of this Agreement, “reasonable best efforts” shall not include nor require either party or its subsidiaries to (A) sell, or agree to sell, hold or agree to hold separate, or otherwise dispose or agree to dispose of any asset, in each case if such sale, separation or disposition or agreement with respect thereto would, individually or in the aggregate, reasonably be expected to have a material adverse effect on the expected benefits of the transactions contemplated by this Agreement to such party, (B) conduct or agree to conduct its business in any particular manner if such conduct or agreement with respect thereto would, individually or in the aggregate, reasonably be expected to have a material adverse effect on the expected benefits of the transactions contemplated by this Agreement to such party, (C) agree to any order, action or regulatory condition of any regulatory body, whether in an approval proceeding or another regulatory proceeding, that, if effected, would cause a material reduction in the expected benefits to Parent of the Merger and the other transactions contemplated this Agreement or (D) to litigate before any Governmental Authority (any of the foregoing effects, a “Burdensome Effect”). In the event that any action or proceeding is threatened or instituted challenging the Merger as violative of any Law, Parent and the Company shall use reasonable best efforts to avoid or resolve such action; provided, however, that no party shall be required to take any action that constitutes a Burdensome Effect. The parties shall take reasonable efforts to share information protected from disclosure under the attorney-client privilege, work product doctrine, joint defense privilege or any other privilege pursuant to this section so as to preserve any applicable privilege.
Appears in 2 contracts
Sources: Acquisition Agreement, Acquisition Agreement
Efforts. (a) Subject to the terms and conditions provided herein, each of the Company, Parent and the Purchaser shall, and the Company shall cause each of its subsidiaries to, cooperate and use their respective reasonable best efforts to take, or cause to be made, all filings necessary, proper or advisable under applicable laws and regulations to consummate and make effective the transactions contemplated by this Agreement, including but not limited to cooperation in the preparation and filing of the Offer Documents, the Schedule 14D-9, the Proxy Statement, any required filings or requests for additional information under the HSR Act, or other foreign filings and any amendments to any thereof. In addition, if at any time prior to the Effective Time any event or circumstance relating to either the Company or Parent or the Purchaser or any of their respective subsidiaries should be discovered by the Company or Parent, as the case may be, which should be set forth in an amendment to the Offer Documents or Schedule 14D-9, the discovering party will promptly inform the other party of such event or circumstance.
(b) Each of the parties will use its reasonable best efforts to obtain as promptly as practicable all Consents of any Governmental Entity or any other person required in connection with, and waivers of any Violations that may be caused by, the consummation of the transactions contemplated by the Offer and this Agreement.
(c) Neither the Company nor the Company Board nor any committee thereof shall withdraw or modify, or propose publicly to withdraw or modify, in a manner adverse to Parent or Purchaser, the recommendation of the Company Board of this Agreement, the Offer or the Merger, or approve or recommend, or propose publicly to approve or recommend, an Acquisition Transaction, unless the Company Board determines in good faith by a vote of a majority of the members of the full Company Board that failing to take such action would create a reasonable likelihood of a breach of the fiduciary duties of the Company Board, after consultation with and receipt of advice from its outside counsel to such effect. Nothing contained in this Section 6.3(c) shall prohibit the Company from taking and disclosing to its stockholders a position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or from making any required disclosure to the Company's stockholders if the Company Board determines in good faith by a vote of a majority of the members of the full Company Board, based on the opinion of outside counsel, that a failure so to disclose would be inconsistent with its obligations under applicable law. Any withdrawal, modification or change of the recommendation of the Company Board of this Agreement, the Merger or the Offer shall not change the approval of the Company Board for purpose of causing any state takeover statute or other law or the Rights Agreement or the Rights to be inapplicable to this Agreement, the Merger, the Company Stock Option Agreement and the Support Agreements, and the transactions contemplated hereby and thereby.
(d) Subject to the terms and conditions herein provided, each of the parties hereto shall agrees to use all their respective reasonable best efforts to take promptlytake, or cause to be taken, all actionsaction, and to do promptlydo, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws laws and regulations to consummate and make effective the Mergers and the other transactions contemplated by this Agreement. If at any time after the Effective Time any further action is necessary or desirable to carry out the purposes of this Agreement, including (i) obtaining the parties hereto shall take or cause to be taken all such necessary actions or nonactionsaction, waiversincluding, consentswithout limitation, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) obtaining all necessary consents, approvals or waivers from third parties, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional such further instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date documents as may be mutually agreed in writing reasonably requested by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration party for such purposes or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable otherwise to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers and the other transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (United States Filter Corp), Merger Agreement (United States Filter Corp)
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each Each of the parties hereto shall use all reasonable best efforts to take promptlypromptly take, or cause to be taken, all actions, and to do promptlydo, or cause to be done, and to assist and cooperate with the other parties party in doing, all things necessary, proper or advisable under this Agreement and applicable Laws to consummate and make effective effective, as soon as reasonably possible, the Mergers Acquisition, the Purchaser Share Issuance and the other transactions contemplated by this Agreementhereby.
(b) In connection with and without limiting the generality of Section 5.01(a), including (i) obtaining all necessary actions or nonactions, waivers, consents, clearances, approvalsPurchaser shall take, and expirations or terminations of waiting periodsPurchaser and Seller shall use reasonable best efforts to cause the Company to take, including the Galaxy Specified Approvals any and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as necessary to avoid or eliminate every impediment under any antitrust, competition, foreign investment or trade regulation Law that may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, asserted by any Governmental EntityEntity so as to enable the parties hereto to close the Acquisition, (ii) obtaining all necessary consents, approvals or waivers from third parties, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers Purchaser Share Issuance and the other transactions contemplated by hereby as promptly as practicable, and in any event prior to the Outside Date. Notwithstanding the foregoing, nothing in this Agreement Section 5.01(b) shall require, or be construed to require, Purchaser or any of its affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of Purchaser or any of its affiliates, other than in any immaterial respect; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses, or interests which, in the case of sub-clauses (i) and (ivii) of this Section 5.01(b), could reasonably be expected to result in a Purchaser Material Adverse Effect or materially and adversely impact the execution and delivery economic or business benefits to Purchaser or any of any additional instruments necessary to consummate its affiliates of the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or (iii) any material modification or waiver of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoingof this Agreement. Purchaser shall, the parties hereto shall as promptly as practicable (i) promptly, but in no event later than fifteen (15) Business Days 30 business days after the date hereof (or such later date as may be mutually agreed in writing by the parties heretoof this Agreement), file make the appropriate filing(s) pursuant to the Competition Act. Purchaser and Seller shall use their reasonable best efforts to cause the Company to assist in the making of such filing. Purchaser shall consult and seek the opinion of Seller and the Company in preparing such filing and keep Seller informed of any material developments and all required Notification communications with the CCI, including on the progress of the CCI filing, as soon as reasonably practicable. Purchaser shall, and Report Forms under Purchaser and Seller shall use reasonable best efforts to cause the HSR Act Company to, as promptly as practicable (but in no event later than 30 business days after the date of this Agreement) make any other competition, merger control, antitrust or similar Law of any jurisdiction that are applicable to the Acquisition or the Purchaser Share Issuance (“Non-Indian Antitrust Laws”), with respect to the Mergers transactions contemplated by this Agreement. Each of Purchaser and Seller shall, and Purchaser and Seller shall use reasonable best efforts to cause the Company to, (i) promptly provide all information or documents required for preparing the filing with the CCI and other filings required to be made pursuant to Non-Indian Antitrust Laws, (ii) promptly provide all information requested by any Governmental Entity (including the CCI) in connection with the Acquisition, the Purchaser Share Issuance or the other transactions contemplated by this Agreement, and (iii) take all actions necessary to cause the expiration or termination of the applicable waiting periods under the Competition Act and Non-Indian Antitrust Laws and not extend such waiting period or enter into any legally binding commitment or other contract or agreement with any Governmental Entities not to consummate any of the transactions contemplated hereby, except with the prior written consent of the other party, which consent will not be unreasonably withheld, delayed or conditioned; provided that no party hereto shall be required pursuant to this Section 5.01(b) to commit to or effect any action that is not conditioned upon the consummation of the Acquisition, the Purchaser Share Issuance or the other transactions contemplated hereby.
(c) In connection with and without limiting the generality of Section 5.01(a), unless prohibited by applicable Law or by the applicable Governmental Entity, Seller and Purchaser, as applicable, shall, and Seller and Purchaser shall use reasonable best efforts to cause the expiration or termination Company to, (A) promptly notify the other party of any applicable waiting periods under communication received from, or given by such party or any of its affiliates to, any Governmental Entity or Person relating to the HSR Act; matters that are the subject of this Agreement, (iiB) use permit the other party to review in advance any proposed communication by such party (andand its advisors) to any Governmental Entity, in (C) deliver complete and accurate copies to the case other party of Marsall filings, Holdco or submissions, correspondence and other written communications (and memoranda setting forth the Merger Subs, cause each of substance thereof) between it and its affiliates and their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made withrepresentatives, or consents, permits, authorizations, waivers, clearances, approvalson the one hand, and expirations any Governmental Entity or terminations members of waiting periods are required any Governmental Entity’s staff, on the other hand, with respect to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (andsubject to redaction of competitively sensitive information, in the case of Mars, Holdco valuation material or the Merger Subs, cause each of their respective affiliates information subject to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the other party reasonable opportunity to review in advanceattorney-client privilege, and consider in good faith the views of the other party in connection withwith such communications, (D) unless such party has consulted with the other party, not participate in or attend any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate meeting, or engage in any substantive meeting or discussionconversation with, either in person or by telephone, with any Governmental Entity in connection with respect of the proposed transactions unless it consults with contemplated hereby without the other party, (E) to the extent reasonably practicable, give the other party reasonable prior notice of any such meeting or conversation, (F) in advance and, to the extent not event one party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending any such meeting or engaging in any such conversation, keep such party reasonably apprised with respect thereto, and (G) cooperate in the filing of any substantive memoranda, white papers, filings, correspondence or other written communications explaining or defending this Agreement and the transactions contemplated hereby, articulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Entity, gives the other party the opportunity to attend and participate.
(d) In furtherance Notwithstanding anything to the contrary in the foregoing, Purchaser and not in limitation Seller shall by mutual agreement determine and direct the strategy and process (including all timing, substantive matters and decisions to propose, negotiate, commit to or effect any action) by which the parties will seek to cause the expiration or termination of the covenants applicable waiting periods under the Competition Act and Non-Indian Antitrust Laws and the expiration or termination of any other applicable waiting periods and the receipt of any Consents required in connection with the transactions contemplated hereby (including all elements of any Proceeding and any communications with Governmental Entities). If Seller and Purchaser initially disagree upon any such proposed strategy or process, Seller and Purchaser agree to work together in good faith to resolve the disagreement and endeavor to implement such strategy or process in a mutually acceptable manner; provided that to the extent that a disagreement is unresolved after good faith discussions between Seller and Purchaser, the implementation of such strategy or process will be controlled by Purchaser after full consideration of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative views of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers and the other transactions contemplated by this AgreementSeller.
Appears in 2 contracts
Sources: Share Purchase Agreement (Ctrip Com International LTD), Share Purchase Agreement (Naspers LTD)
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each Each of the parties hereto shall use all its reasonable best efforts to take promptly, or cause to be taken, all actions, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things reasonably necessary, proper or advisable under applicable Laws to consummate and make effective the Mergers and the other transactions contemplated by this Agreement, including (i) obtaining obtain all necessary actions or nonactions, waivers, consents, clearances, approvals, and or expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps periods as may be necessary to obtain an approval, clearance required by any law or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) obtaining all necessary consents, approvals or waivers from third parties, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to Parent and the terms and conditions herein provided and without limiting the foregoing, the parties hereto Company shall (i) promptly, but in no event later than fifteen ten (1510) Business Days after the date hereof hereof, file (or such later date as may cause to be mutually agreed in writing by the parties hereto), file filed) any and all required Notification and Report Forms under the HSR Act with respect to the Mergers Merger; Parent and the other transactions contemplated by this AgreementCompany shall request early termination of any applicable waiting period under the HSR Act, and use their reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; , and shall supply to the Antitrust Division of the United States Department of Justice (ii“Antitrust Division”) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to useUnited States Federal Trade Commission (“FTC”) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as reasonably practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division or the FTC.
(c) In furtherance of the United States Department covenants of Justicethe parties contained in this Section 5.6, state antitrust enforcement authorities but subject to the limitations set forth in Section 5.6(d), (i) each of the Parent and the Company shall use its reasonable best efforts to avoid the entry of, or competition authorities of to have vacated or lifted, reversed or overturned any other nation decree, judgment, injunction or other jurisdiction order, whether temporary, preliminary or any other person may assert under any Law with respect to permanent, that would restrain, prevent or delay the transactions contemplated hereby, Closing on or before the End Date and (ii) Parent shall use its reasonable best efforts to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon promptly as reasonably possible (and in any event no later than the End Date), including, without limitationin the case of Parent, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order order, or otherwise, the sale, divestiture or disposition of any such businesses, product lines or assets of Parent or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries the Company and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ Parent’s freedom of action with respect to, or its ability to operate and/or retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assetsassets of Parent or the Company.
(d) Notwithstanding anything to the contrary in this Section 5.6, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided parties hereto understand and agree that neither Galaxy Parent nor any of its Subsidiaries shall become subject be required, nor shall the Company or any of its Subsidiaries without the prior written consent of Parent agree or offer to: (i) sell, divest or otherwise hold separate (including by establishing a trust or otherwise), or consent take any other action (or otherwise agree to do any of the foregoing) with respect to any of the businesses, assets or properties of Parent, the Company, the Surviving Corporation or any of their respective Affiliates or (ii) otherwise take any or commit to take actions that after the Closing would limit Parent’s freedom of action with respect to, or its ability to operate any requirementof the businesses, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business properties of Galaxy Parent, the Company, the Surviving Corporation or any of their respective Affiliates if the aggregate net effect of all such sales, divestitures, dispositions, actions or commitments referred to in clauses (i) and (ii) would be material to the Company and its Subsidiaries, unless taken as a whole (it being understood that if any such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above are proposed with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of HoldcoParent, Mars, Galaxy and their respective Subsidiaries, taken “material” shall be determined as a whole, at if such assets or after business were owned by the Effective TimeCompany).
(ce) Subject Parent and the Company shall cooperate and consult with each other in connection with the making of all filings, notifications, communications, submissions, and any other material actions pursuant to this Section 5.6, and, subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy Parent and Mars the Company shall keep each other apprised on a current basis of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other material communications received by Galaxy or MarsParent and the Company, as the case may be, or any of their respective SubsidiariesSubsidiaries or Affiliates, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy Subject to applicable Law relating to the exchange of information, Parent and Mars the Company shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed notifications or filings and any written communications or submissions, and with respect to any such notification, filing, written communication or submission, any documents submitted therewith to any Governmental Entity; provided, however, that materials may be redacted (i) to remove references concerning the valuation of the businesses of the Parent, or proposals from third parties with respect thereto, (ii) as necessary to comply with contractual agreements, and (iii) as necessary to address reasonable privilege or confidentiality concerns. Each of Galaxy Parent and Mars agrees the Company agree not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers and the other transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Reliance Steel & Aluminum Co), Merger Agreement (Metals Usa Holdings Corp.)
Efforts. (a) Subject to the terms and conditions set forth in of this AgreementAgreement (including Section 7.03), each of Parent and the parties hereto Company shall use all reasonable best efforts to take promptlytake, or cause to be taken, all actions, actions and to do promptlydo, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws Law or Order to consummate and make effective the Mergers and the other transactions contemplated by this AgreementTransactions as promptly as reasonably practicable, including (i) obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals, preparing and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps filing as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, promptly as reasonably practicable with any Governmental EntityAuthority or other Third Party all documentation to effect all necessary, proper or advisable filings, notices, petitions, statements, registrations, submissions of information, applications and other documents and (ii) obtaining and maintaining all necessary approvals, consents, approvals or waivers from third parties, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consentsregistrations, permits, authorizations, waivers, clearances, approvals, authorizations and expirations or terminations of waiting periods are other confirmations required to be obtained from, from any third parties Governmental Authority or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents Third Party that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things are necessary, proper or advisable to consummate and make effective the transactions contemplated herebyTransactions (whether or not such approvals, including taking consents, registrations, permits, authorizations and other confirmations are conditions to the consummation of the Merger pursuant to ARTICLE 8); provided, however, that none of the Company, its Subsidiaries nor any of their respective Representatives shall provide notice to, or request consent from, any Third Party with respect to this Agreement or the Transactions without the prior written consent of Parent (andsuch consent not to be unreasonably withheld or delayed).
(b) In furtherance, and not in limitation of the foregoing, each of Parent and the Company shall make, as promptly as reasonably practicable after the date of this Agreement (and in any event within fifteen (15) Business Days of the date of this Agreement in the case of Marsthe following clause (i) and within 30 days of the date of this Agreement in the case of the following clauses (ii), Holdco (iii) and (iv) (unless counsel to the Parties have previously agreed to extend such periods)), (i) an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions, (ii) an appropriate filing of a Notification of the Transactions with the German Federal Cartel Office (“Bundeskartellamt”) as prescribed by the ARC, (iii) a notification to The Federal Antimonopoly Service of the Russian Federation pursuant to FLN 135 (the jurisdictions referenced in clauses (ii) and (iii), the “Required Jurisdictions”) and (iv) a filing of a joint voluntary notice with CFIUS under Exon-▇▇▇▇▇▇ with respect to the Transactions. The draft voluntary notice shall be delivered to CFIUS as reasonably practicable after the date of this Agreement (and in any event within thirty (30) days of the date of this Agreement), and then as promptly as reasonably practicable and, in any event, within ten (10) Business Days of CFIUS notification that the draft filing meets all requirements of 31 C.F.R. § 800.402 of the regulations and is, accordingly, complete, the parties shall jointly file the voluntary notice with CFIUS as contemplated by 31 C.F.R. § 800.401(a). Each of Parent and the Company shall use reasonable best efforts to supply as promptly as practicable any additional information and documentary material that may be reasonably requested pursuant to the foregoing, and use reasonable best efforts to take all other actions necessary to cause the expiration or termination of (and not to extend) the Merger Subsapplicable waiting periods regarding the foregoing as soon as reasonably practicable.
(c) Except as prohibited by applicable Law or Order or by applicable Governmental Authority, cause each of their respective affiliates Parent and the Company shall use reasonable best efforts to take(i) all cooperate with each other in connection with any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private party, (ii) promptly inform the other Party of (and if in writing, supply to the other Party) any communication (other than any ministerial communications) received by such further action as may be necessary promptly to resolve Party from, or given by such objectionsParty to, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction CFIUS or any other person may assert under any Law with respect to the transactions contemplated hereby, Governmental Authority and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets material communication received or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take given in connection with any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assetsproceeding by a private party, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take regarding any of the actions described Transactions, (iii) consult with each other prior to taking any material position in clauses (iv)(x) discussions with or (y) above with respect filings to be submitted to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of Governmental Authority regarding any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated therebyTransactions, including promptly furnishing (iv) permit the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the other party reasonable opportunity to review and discuss in advance, and consider in good faith the views of the other party in connection with, any proposed written communication analyses, presentations, memoranda, briefs, arguments, opinions, proposals and litigation to be submitted to any Governmental Entity. Each Authority regarding any of Galaxy the Transactions, and Mars agrees not to participate (v) coordinate with the other in preparing and exchanging such information and promptly provide the other (and its counsel) with copies of all filings, presentations or submissions (and a summary of any substantive meeting or discussion, either in person or oral presentations) made by telephone, such Party with any Governmental Entity Authority relating to this Agreement or the Transactions. Notwithstanding anything to the contrary herein, Parent shall, on behalf of the Parties, have control over and lead all communications and strategy, including all analyses, presentations, memoranda, briefs, arguments, opinions, proposals and litigation, relating to obtaining all approvals, consents, waivers, registrations, permits, authorizations and other confirmations from any Governmental Authority in connection with consummating the proposed transactions unless it consults with Transactions, except for stockholder litigation as set forth in Section 7.08. The Parties shall take reasonable best efforts to share information protected from disclosure under the attorney-client privilege, work product doctrine, joint defense privilege or any other party privilege pursuant to this Section 7.01 in advance and, a manner so as to preserve the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participateapplicable privilege.
(d) In furtherance Unless prohibited by applicable Law or Order or by the applicable Governmental Authority or arbitrator (public or private), each of Parent and the Company shall (i) to the extent reasonably practicable, not participate in limitation or attend any meeting, or engage in any conversation (other than ministerial conversations) with any Governmental Authority or arbitrator (public or private) in respect of the covenants Transactions (including with respect to any of the parties actions referred to in Section 7.01(a)) without the other, (ii) to the extent reasonably practicable, give the other reasonable prior notice of any such meeting or conversation and (iii) in the event one such Party is prohibited by applicable Law or Order or by the applicable Governmental Authority or arbitrator (public or private) from participating or attending any such meeting or engaging in any such conversation, keep such non-participating Party reasonably apprised with respect thereto.
(e) Subject to Section 7.01(f), Parent and the Company shall use reasonable best efforts to take, or cause to be taken, all actions necessary to consummate the Transactions. Without limiting the generality of the foregoing, but subject to Section 7.01(f), each Party: (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such Party in connection with the Transactions; (ii) shall use reasonable best efforts to obtain each consent (if any) required to be obtained (pursuant to any applicable Law or Contract, request by a Governmental Authority or arbitrator (public or private), or otherwise) by such Party in connection with the Transactions; and (iii) shall use reasonable best efforts to lift or cause to be overturned any restraint, injunction or other legal bar to the Transactions.
(f) Notwithstanding anything to the contrary contained in this Section 5.67.01 or elsewhere in this Agreement, if neither Parent nor Merger Sub shall have any administrative obligation under this Agreement: (i) to commence or judicial action threaten to commence litigation; (ii) to agree to hold separate, divest, license or proceeding, including any proceeding by cause a private party, is instituted third party to purchase (or threatened cause any of its Subsidiaries to agree to hold separate, divest, license or cause a third party to purchase) any of its respective businesses, product lines or assets; or (iii) to agree to any condition or limitation contemplated in this Section 7.01, that would, or would reasonably be expected to, have a Parent Material Adverse Effect.
(g) In connection with obtaining the CFIUS Approval, and notwithstanding anything to the contrary in this Agreement, neither Parent nor Merger Sub shall have any obligation to agree to any mitigation measure or condition requested by CFIUS or any other Governmental Authority where such measure or condition could reasonably be expected to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts materially adverse to contest and resist any such action the business 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 financial condition of the Mergers and Company or Parent or could reasonably be expected to materially reduce the other transactions contemplated by this Agreementbenefits to Parent of the Merger.
Appears in 2 contracts
Sources: Merger Agreement (Polycom Inc), Merger Agreement (Mitel Networks Corp)
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto Parties shall use all (and shall cause their respective Affiliates to use) their respective reasonable best efforts to take promptlypromptly take, or cause to be taken, all actions, and to do promptlypromptly do, or cause to be done, and to assist and cooperate with the other parties Parties in doing, all things reasonably necessary, proper or advisable under applicable Laws to cause the conditions to Closing set forth in Article 6 to be satisfied and to consummate and make effective the Mergers Transactions and the other transactions contemplated by this AgreementAgreement as promptly as practicable after the date of this Agreement and in any event prior to the End Date, including (i) the obtaining of all necessary actions or nonactions, authorizations, permits, waivers, consents, clearances, approvals, approvals and expirations or terminations of waiting periodsperiods (collectively, “Consents”), including the Galaxy Specified Company Approvals and the Mars Specified Parent Approvals, from Governmental Entities and the making of all other necessary registrations registrations, notices, notifications, petitions, applications, reports and other filings and the taking of all steps as may be necessary necessary, proper or advisable to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Action by any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers Consents from third parties, parties (that are not Governmental Entities) and (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary necessary, proper or advisable to consummate consummate, and to fully carry out the purposes of the transactions contemplated by this Agreement, including the Transactions; provided, however, provided that in no event shall Galaxy either the Company or Parent or any of its Subsidiaries, or Mars or any of its their respective Subsidiaries or Holdco be required to pay pay, prior to the First Parent Merger Effective Time any fee, penalty or other consideration to any third party (other than filing or administrative fees paid to a Governmental Entity) for any consent or approval Consent required for or triggered by the consummation of the Transactions and the other transactions contemplated by this Agreement under any contract or agreementotherwise.
(b) Subject to the terms and conditions herein provided set forth in this Agreement and without limiting the foregoingprovisions of Section 5.7(a), the parties hereto Parties shall (i) promptlyprepare and file (A) an appropriate filing of a Notification and Report Form pursuant to the HSR Act, but in no event later than fifteen (15) Business Days as promptly as practicable after the date hereof of this Agreement and (B) all other initial filings, notices, and reports (or such later date as may be mutually agreed in writing by the parties hereto)where applicable, file any and all required Notification and Report Forms under the HSR Act drafts thereof) with respect to the Mergers and Consents from Governmental Entities, including the other transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration or termination of Consents from any applicable waiting periods Governmental Entity under the HSR Act; (iiAntitrust Laws of the jurisdictions set forth on Section 6.3(f) use of the Company Disclosure Schedules, in each case as promptly as practicable (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to Consents from any Governmental Entity under the Antitrust Laws of the jurisdictions set forth on Section 6.3(f) of the Company Disclosure Schedules, within 35 days (unless a later date is mutually agreed upon by the Parties) after the date hereof except where: (i) actions or inactions of third parties not under the control of a Party; or (ii) the failure by the Company Parties to promptly supply all the information required for the filings has contributed to the delay in the preparation of such filings; provided, that the Parties shall prepare and file such filings as promptly as practicable any additional information or documents that may be requested pursuant to any Law or after taking into account the delays caused by such Governmental Entity; (i) and (ivii), and, in each case, request early termination of the statutory waiting period under the HSR Act, and to the extent applicable, under the applicable Laws with respect to all other Consents from Governmental Entities, (ii) promptly obtain all necessary Consents from third parties (that are not Governmental Entities) and (iii) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking the Transactions. No Party shall withdraw or pull and refile its Notification and Report Form under the HSR Act except with the prior written consent of the other Parties (andsuch consent not to be unreasonably withheld, conditioned or delayed). In the event that any information in the case filings submitted pursuant to this Section 5.7(b) or any such supplemental information furnished in connection therewith is deemed confidential by any Party, the Parties shall maintain the confidentiality of Marsthe same, Holdco and the Parties shall seek authorization from the applicable Governmental Entity to withhold such information from public view.
(c) The Parties acknowledge and agree that no provision of this Agreement shall require, or be construed to require, any Party or any of its Subsidiaries to (i) contest or defend against any actual, anticipated or threatened Order or Actions seeking to prevent, materially delay or materially impair the Merger Subsconsummation of the Transactions, cause each (ii) propose, effect or agree to the disposition of the businesses, assets and equity or other business interests of the Company, Parent or their respective affiliates to takeSubsidiaries, (iii) all such further action as may be necessary promptly to resolve such objectionscreate, if anyamend, as the United States Federal Trade Commissionterminate, the Antitrust Division divest or assign, or otherwise secure substitute parties for relationships, ventures or contractual rights and obligations of the United States Department of JusticeCompany, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco Parent or their respective Subsidiaries or affiliates, (iv) take or of Galaxy or its Subsidiaries and (y) otherwise taking or committing commit to take any actions action that after would restrict Parent’s, the Closing Date would limit the freedom Company’s or any of Holdco or its their respective Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action action, including with respect to, or its ability that would effect changes to retain, one or more the conduct of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution business of, any injunctionbusinesses, temporary restraining order assets, and equity or other order in any suit business interests, relationships, ventures or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any contractual rights and obligations of the actions described in clauses (iv)(x) Company, Parent or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries; provided, taken however, that if requested by Parent, the Company will take, and will cause its Subsidiaries to take, any action described in this Section 5.7(c) (any such action requested by Parent, a “Remedy Action”), so long as a whole, at or after such action is conditioned upon the Effective Timeconsummation of the Transactions.
(cd) Subject The Parties shall cooperate and consult with each other in connection with the making of all registrations, filings, notifications, communications, submissions and any other actions pursuant to this Section 5.7(d), and, subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy the Company Parties, on the one hand, and Mars Parent and each Parent Merger Sub, on the other hand, shall keep each other apprised of the status of matters relating to the completion of the Transactions and the other transactions contemplated thereby, including promptly informing and furnishing the other with copies of notices or other communications received or given by Galaxy the Company or MarsParent, as the case may be, or any of their respective Subsidiaries, from or to any third party and/or any Governmental Entity with respect to such transactions. Galaxy In addition to the obligations contemplated by Section 5.3 and Mars Section 5.5, and subject to applicable Law relating to the exchange of information, the Company Parties, on the one hand, and Parent and each Parent Merger Sub, on the other hand, shall permit counsel for the other party Party reasonable opportunity to review in advance, and consider in good faith the views of the other party Parties in connection with, any proposed notifications or filings and any written communications or submissions, and with respect to any such notification, filing, written communication or submission, any documents submitted therewith to any Governmental EntityEntity (except that is requested by any Governmental Entity to remain confidential from the other Parties); provided, that materials may be redacted (i) to remove references concerning the valuation of the businesses of the Company and its Subsidiaries, or proposals from third parties with respect thereto, (ii) as necessary to comply with contractual agreements and (iii) as necessary to address reasonable privilege or confidentiality concerns. The Parties shall take their respective reasonable efforts to share information protected from disclosure under the attorney-client privilege, work product doctrine, joint defense privilege or any other privilege pursuant to this Section 5.7(d) in a manner so as to preserve the applicable privilege. Each of Galaxy and Mars the Parties agrees not to initiate or agree to participate in any substantive meeting or discussion, either in person or by telephonetelephone or videoconference, with any Governmental Entity in connection with the proposed transactions unless it consults with the other party Parties in advance and, to the extent not prohibited by such Governmental Entity, gives the other party Parties the opportunity to attend and participate.
(de) In furtherance and not in limitation of Subject to the covenants of the parties contained obligations in this Section 5.65.7(e), if Parent and the Company shall reasonably cooperate with respect to devising and implementing the strategy and timing for obtaining any administrative or judicial action or proceeding, including Consents required under any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate applicable Law in all respects connection with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers Transactions and the other transactions contemplated by this Agreement. In addition, the Parties shall jointly develop, and each of the Parties shall consult and reasonably cooperate with one another, and consider in good faith the views of one another, the strategy in connection with all meetings and communications with any Governmental Entity in connection with obtaining such Consents. Neither Parent nor the Company nor any of their respective Subsidiaries shall initiate any such discussions or proceedings with any Governmental Entity, or take or agree to take any actions, restrictions or conditions with respect to obtaining any Consents in connection with the Transactions and the other transactions contemplated by this Agreement without the prior written consent of the other Party hereto. Notwithstanding the foregoing, in the event of any dispute between the Parties relating to the strategy or appropriate course of action or content of any submission or communication in connection with obtaining any Consents required under any applicable Law with respect to the Transactions and the other transactions contemplated by this Agreement, the Parties shall escalate such dispute to the general counsels (or most senior legal personnel) of the Company and Parent for resolution. If such dispute is not resolved pursuant to the preceding sentence, Parent shall have the right, in its sole discretion, to make the final determination with respect to such matter.
Appears in 2 contracts
Sources: Merger Agreement (Gildan Activewear Inc.), Merger Agreement (Hanesbrands Inc.)
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall use all its commercially reasonable best efforts to take promptlytake, or to cause to be taken, all actions, to file, or cause to be filed, all documents and to do promptlydo, or to cause to be done, and to assist and to cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective effective, as promptly as practicable, the Mergers Offer and Merger and the other transactions contemplated by this Agreementhereby, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Company Approvals and the Mars Specified Parent Approvals, from Governmental Entities Authorities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance clearance, or waiver from, or to avoid an action or proceeding by, any Governmental EntityAuthorities, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the giving of notice, if required, under real property leases, (iv) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers Offer, the Top-Up Option or the Merger and the other transactions contemplated by this Agreement hereby and (ivv) the execution and delivery of any additional instruments reasonably necessary to consummate the transactions contemplated by this Agreement; providedhereby. In furtherance of the foregoing, howeverthe Company may, that but in no event shall Galaxy or any of its Subsidiaries, or Mars the Company or any of its Subsidiaries or Holdco be required to to, pay prior to the Effective Time any fee, penalty penalties or other consideration to any third party for to obtain any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoingOffer, the parties Top-Up Option or the Merger. No party hereto shall (i) promptly, but in no event later than fifteen (15) Business Days after take any action that would reasonably be expected to prevent or materially delay or impede the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration or termination receipt of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco necessary actions or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizationsnonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained fromperiods, any third parties or other Governmental Entities in connection with including the execution and delivery of this Agreement Company Approvals and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective SubsidiariesParent Approvals, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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 participateAuthorities.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers and the other transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Dune Energy Inc), Merger Agreement (Eos Petro, Inc.)
Efforts. (a) Subject to the terms and conditions set forth in this AgreementAgreement (including Section 5.8(c)), each of the parties hereto shall use all their reasonable best efforts to take promptly(and shall cause each of their respective Affiliates to) take, or cause to be taken, all actions, and to do promptlydo, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to cause the conditions to Closing set forth in Article 6 of this Agreement to be satisfied and to consummate and make effective the Mergers and the other transactions contemplated by this AgreementAgreement prior to the End Date, including (i) the obtaining of all necessary actions or nonactions, authorizations, permits, waivers, consents, clearances, approvals, approvals and expirations or terminations of waiting periodsperiods (collectively, “Consents”), including the Galaxy Specified Company Approvals and the Mars Specified Parent Approvals, from Governmental Entities and the making of all necessary registrations registrations, notices, notifications, petitions, applications, reports and other filings and the taking of all steps as may be necessary necessary, proper or advisable to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers Consents from third parties, (iii) the defending of any Actions, lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement Agreement, or seeking to prohibit or delay the Closing and (iv) the execution and delivery of any additional instruments necessary necessary, proper or advisable to consummate consummate, and to fully carry out the purposes of the transactions contemplated by this Agreement; provided, howeverthat solely with respect to approvals from third parties other than from Governmental Entities and other than under Railroad Laws or Antitrust Laws as provided in this Section 5.8, that in no event shall Galaxy either the Company or Parent or any of its Subsidiaries, or Mars or any of its their respective Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval Consent required for or triggered by the consummation of the transactions contemplated by this Agreement under any contract or agreementagreement or otherwise.
(b) Subject Without limiting the foregoing, but subject to the terms and conditions herein provided and without limiting the foregoing(including Section 5.8(c)), the parties hereto Company, Parent and each Merger Sub shall (i) promptly, but in no event later than fifteen six (156) Business Days months after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by of this Agreement, and use reasonable best efforts to cause file the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection Application with the execution and delivery of this Agreement and STB (provided, however, that if the consummation STB issues an order or otherwise implements a regulatory change that materially impedes the filing of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade CommissionApplication, the Antitrust Division of the United States Department of JusticeCompany, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, Parent and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers and the other transactions contemplated by this Agreement.Merger
Appears in 2 contracts
Sources: Merger Agreement (Union Pacific Corp), Merger Agreement (Norfolk Southern Corp)
Efforts. (a) Subject to the terms and conditions set forth in of this Agreement, Rocket, the Merger Subs, the Acquired RHI Group and DG shall cooperate with each of the parties hereto other and use, and shall use all cause their respective Subsidiaries to use, their respective reasonable best efforts to take promptlyto
(a) take, or cause to be taken, all actions, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Mergers and the other transactions contemplated by this Agreement, including (i) obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) obtaining all necessary consents, approvals or waivers from third parties, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things things, necessary, proper or advisable to consummate and make effective cause the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates conditions to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur be satisfied as soon promptly as reasonably possible practicable (and in any event no later than the End Termination Date), includingand to consummate and make effective, without limitationin the most expeditious manner practicable, the Transactions contemplated by this Agreement, including preparing and filing as promptly as practicable all documentation to effect all necessary filings, notifications, notices, petitions, statements, registrations, submissions of information, applications and other documents (including any required or recommended filings under applicable Regulatory Laws), (xb) proposingobtain promptly all approvals, negotiatingconsents, committing clearances, expirations or terminations of waiting periods, registrations, permits, authorizations and other confirmations from any Governmental Entity or third party necessary, proper or advisable to consummate the Transactions contemplated by this Agreement and effecting(c) defend any Proceedings challenging this Agreement or the consummation of the Transactions contemplated by this Agreement. Notwithstanding anything to the contrary contained in this Agreement, by consent decree, hold separate order or otherwisenone of Rocket, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco Merger Subs or their respective Subsidiaries or affiliatesshall be required to, or and none of Galaxy RHI or its Subsidiaries and (y) otherwise taking or committing DG shall, without the prior written consent of Rocket, take any action, or commit to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect toaction, or its ability agree to retain, one any condition or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assetslimitation, in each case as may be required in order to avoid commencement contemplated by this Section 8.2 that is not conditioned on the consummation of litigation seeking the entry ofMergers, the DG Exchange or that would result in, or would be reasonably likely to effect the dissolution ofresult in, any injunction, temporary restraining order individually or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Marsaggregate, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be a material in relation to the assets or business of Holdcoadverse effect on Rocket, MarsRHI, Galaxy and DG and, as applicable, their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating giving effect to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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 participateMergers.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers and the other transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Transaction Agreement (Gilbert Daniel B), Transaction Agreement (Rocket Companies, Inc.)
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall use all reasonable best efforts to take promptly(and shall cause each of their respective Affiliates to) promptly take, or cause to be taken, all actions, and to do promptlypromptly do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to cause the conditions to Closing set forth in Article 6 of this Agreement to be satisfied and to consummate and make effective the Mergers and the other transactions contemplated by this AgreementAgreement as promptly as practicable after the date of this Agreement and in any event prior to the End Date, including (i) the obtaining of all necessary actions or nonactions, authorizations, permits, waivers, consents, clearances, approvals, approvals and expirations or terminations of waiting periodsperiods (collectively, “Consents”), including the Galaxy Specified Company Approvals and the Mars Specified Parent Approvals, from Governmental Entities and the making of all necessary registrations registrations, notices, notifications, petitions, applications, reports and other and filings and the taking of all steps as may be necessary necessary, proper or advisable to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers Consents from third parties, (iii) the defending of any Actions, lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement (including the Voting Trust), or seeking to prohibit or delay the Closing and (iv) the execution and delivery of any additional instruments necessary necessary, proper or advisable to consummate consummate, and to fully carry out the purposes of the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy either the Company or Parent or any of its Subsidiaries, or Mars or any of its their respective Subsidiaries or Holdco be required to pay prior to the First Effective Time any fee, penalty or other consideration to any third party for any consent or approval Consent required for or triggered by the consummation of the transactions contemplated by this Agreement under any contract or agreementagreement or otherwise.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto Company, Parent and each Merger Sub shall (i) promptly, but in no event later than fifteen (15) 30 Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto)of this Agreement, file any and all notification and report forms to the COFECE and the IFT required Notification and Report Forms under the HSR Act applicable Law with respect to the Mergers and the other transactions contemplated by this Agreement, and use reasonable best efforts take all other actions necessary to cause the expiration or termination of any applicable waiting periods under applicable Law as soon as practicable after the HSR Act; date of this Agreement, (ii) use take all actions with CFIUS as may be advisable under applicable Law to obtain Completion of the CFIUS Process with respect to the transactions contemplated by this Agreement, including (andA) promptly, but in no event later than 10 Business Days after the date of this Agreement, jointly providing notification to CFIUS of the execution of this Agreement, (B) promptly, and in no event later than 10 Business Days after the Closing, submitting a draft CFIUS Joint Voluntary Notification to CFIUS, (C) submitting a final Joint Notice to CFIUS after promptly resolving all comments to the draft CFIUS Joint Voluntary Notification from CFIUS and (D) in the case of Marsa CFIUS Declaration, Holdco submitting a CFIUS Joint Voluntary Notification if CFIUS so requests or informs the Merger Subsparties that it is not able to conclude action under Section 721 with respect to the Mergers and the other transactions contemplated by this Agreement on the basis of such CFIUS Declaration, cause each of their respective affiliates to use(iii) reasonable best efforts to cooperate with each other in (xA) determining whether any other filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods Consents are required to be obtained from, or with respect to, any third parties or Governmental Entities, including under other Governmental Entities applicable Antitrust Laws and/or in connection with the Company Approvals and Parent Approvals, in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (yB) timely promptly making all such filings and timely obtaining all such consentsConsents, permits, authorizations or approvals; (iiiiv) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; , including responding to any request for information from CFIUS in the applicable timeframe set forth in 31 C.F.R. Part 800, subject to any extensions of such time that may be granted by CFIUS staff upon request of a party to the Joint Notice, and (ivv) other than with respect to the STB Final Approval, which is discussed in Section 5.8(c), take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, any state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction authorities, CFIUS, or any other person Governmental Entity or other Person may assert under any Law (including in connection with the Company Approvals and Parent Approvals) with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon promptly as reasonably possible practicable after the date of this Agreement, including (and in any event no later than the End Date), including, without limitation, (xA) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture divestiture, license, hold separate or disposition of any and all of the share capital or other equity interest, assets (whether tangible or intangible), products or businesses of Mars, Holdco or their respective Parent and its Subsidiaries or affiliatesof the Company and its Subsidiaries, or of Galaxy or its Subsidiaries and (yB) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco Parent’s or its Subsidiaries’ (including the Second Surviving Corporations’Corporation’s) or affiliates’ freedom of action with respect to, or its their ability to retain, one or more of its or its their Subsidiaries’ (including the Second Surviving Corporations’Corporation’s) assets (whether tangible or intangible), products, or businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which that would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End DateClosing; provided provided, that neither Galaxy the Company nor any of its Subsidiaries shall be required to become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to divest, license, hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets assets, operations or business of Galaxy the Company or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy or otherwise applicable to the Company or its Subsidiaries only from and after the First Effective Time in the event that the Closing occurs; provided that none of Mars. Notwithstanding the foregoing, Holdco or other than with respect to the Merger Subs STB Final Approval, which is discussed in Section 5.8(c), nothing in this Section 5.8 shall be required deemed to require Parent or any of its Affiliates to take any of the actions described action, or commit to take any action, or agree to any condition or restriction in clauses (iv)(x) or (y) above connection with obtaining any Parent Approvals that would reasonably be expected to have a Parent Material Adverse Effect with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy Parent and their respective its Subsidiaries, taken as a whole, at after giving effect to the Mergers (measured on a scale relative to the Company and its Subsidiaries, taken as a whole). Except as otherwise permitted under this Agreement (including pursuant to the authority granted to Parent under Section 5.8(e)), the Company, Parent and each Merger Sub shall not (and shall cause their Subsidiaries not to) take or after agree to take any action that would be reasonably likely to prevent or materially delay the Effective TimeClosing. In the event that any information in the filings submitted pursuant to this Section 5.8(b) or any such supplemental information furnished in connection therewith is deemed confidential by either party, the parties shall maintain the confidentiality of the same, and the parties shall seek authorization from the applicable Governmental Entity to withhold such information from public view.
(c) Subject In furtherance and not in limitation of the other covenants of the parties contained in this Section 5.8:
(i) each of Parent and the Company shall, as promptly as practicable, file the appropriate and necessary documentation for the approval of the Mergers and the transactions contemplated hereby (the “STB Approval Application”) with the STB, and shall use its reasonable best efforts to (x) make such filing within thirty (30) days after the date of this Agreement and (y) obtain, as promptly as practicable, the final and non-appealable approval or exemption by the STB of the Mergers and the other transactions contemplated hereby pursuant to 49 U.S.C. § 11323 et seq. (the “STB Final Approval”);
(ii) each of Parent and the Company shall use their reasonable best efforts to (A) prosecute all such filings and other presentations made, and promptly make any subsequent filings or presentations, with the STB with diligence, (B) diligently oppose any third party’s objections to, appeals from or petitions to reconsider or reopen any approval, opinion, exemption or other authorization obtained from the STB, and (C) take all such further action as in the reasonable judgment of Parent and the Company may facilitate obtaining the STB Final Approval; and
(iii) each of Parent and Company shall promptly furnish any information requested by CFIUS prior to filing of the draft CFIUS Joint Voluntary Notification and/or Joint Notice with CFIUS, including information relating to the Voting Trust Transaction.
(d) The Company, Parent and each Merger Sub shall cooperate and consult with each other in connection with the making of all registrations, filings, notifications, communications, submissions and any other actions pursuant to this Section 5.8(d), and, subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy the Company, on the one hand, and Mars Parent and each Merger Sub, on the other hand, shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly informing and furnishing the other with copies of notices or other communications received or given by Galaxy the Company or MarsParent, as the case may be, or any of their respective Subsidiaries, from or to any third party and/or any Governmental Entity with respect to such transactions. Galaxy Subject to applicable Law relating to the exchange of information, the Company, on the one hand, and Mars Parent and each Merger Sub, on the other hand, shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed notifications or filings and any written communications or submissions, and with respect to any such notification, filing, written communication or submission, any documents submitted therewith to any Governmental EntityEntity (except for any exhibits to such communications providing the personal identifying information required by 31 C.F.R. Section 800.502(c)(5)(vi) or that otherwise is requested by any Governmental Entity to remain confidential from the other parties); provided, that materials may be redacted (i) to remove references concerning the valuation of the businesses of the Company and its Subsidiaries, or proposals from third parties with respect thereto, (ii) as necessary to comply with contractual agreements and (iii) as necessary to address reasonable privilege or confidentiality concerns. The parties shall take reasonable efforts to share information protected from disclosure under the attorney-client privilege, work product doctrine, joint defense privilege or any other privilege pursuant to this Section 5.8 in a manner so as to preserve the applicable privilege. Each of Galaxy the Company, Parent and Mars the Merger Subs agrees not to initiate or agree to participate in any substantive meeting or discussion, either in person or by telephonetelephone or videoconference, with any Governmental Entity in connection with the proposed transactions unless it 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.
(de) Subject to the obligations of this Section 5.8, Parent shall, acting reasonably, devise and implement the strategy and timing for obtaining any Consents required under any applicable Law in connection with the transactions contemplated by this Agreement and Parent shall, for the avoidance of doubt, have the final authority over the development, presentation and conduct of the STB case. Parent shall take the lead in all meetings and communications with any Governmental Entity in connection with obtaining such Consents; provided, that Parent shall consult in advance with the Company and in good faith take the Company’s views into account regarding the overall strategy and timing. The Company and its Subsidiaries shall not initiate any such discussions or proceedings with any Governmental Entity, or take or agree to take any actions, restrictions or conditions with respect to obtaining any Consents in connection with the Mergers and the other transactions contemplated by this Agreement without the prior written consent of Parent.
(f) Subject to Section 5.17(a), applicable Law and to the rules, regulations and practices of the STB, the Voting Trust Agreement may be modified or amended at any time by Parent in its sole discretion, including to reflect changes requested by the STB or CFIUS; provided, that (i) prior to the First Effective Time, the Voting Trust Agreement may not be modified or amended without the prior written consent of the Company unless such modification or amendment is not inconsistent with this Agreement and is not adverse to the Company or its stockholders and would not reasonably be expected to have a material and adverse effect on the STB Voting Trust Approval, and (ii) whether prior to or after the First Effective Time, the Voting Trust Agreement may not be modified or amended without the prior written consent of the Company if such modification or amendment would reasonably be expected to materially increase the liability exposure of the board of directors of the Second Surviving Corporation under applicable Law. No power of the Second Surviving Corporation, Parent or any of its Affiliates provided for in the Voting Trust Agreement may be exercised in a manner which violates this Agreement.
(g) In furtherance and not in limitation of the other covenants of the parties contained in this Section 5.65.8, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy the Company, Parent and Mars the Merger Subs shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such action Action or proceeding and to have vacated, lifted, reversed or overturned any Action, decree, judgment, injunction or other orderOrder, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Mergers and the other transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Voting Trust Agreement (Canadian Pacific Railway LTD/Cn), Merger Agreement (Canadian Pacific Railway LTD/Cn)
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each of the Company (and its Subsidiaries) and Parent (and its Subsidiaries and Affiliates) shall cooperate with the other parties hereto shall and use all their respective reasonable best efforts to take promptlytake, or cause to be taken, all actions, and to do promptlydo, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Mergers Merger and the other transactions contemplated by this AgreementAgreement prior to the End Date, including (i) preparing and filing all documentation necessary to effect all necessary actions or nonactions, waivers, consents, clearances, approvals and expirations or terminations of waiting periods from any Governmental Entity, (ii) obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) obtaining all necessary consents, approvals or waivers from third parties, (iii) defending any Actions, lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or challenging, hindering, impeding, interfering with or delaying the consummation of the Mergers Merger and the other transactions contemplated by this Agreement under any Antitrust Law or Foreign Investment Law, including seeking to have any stay, temporary restraining order or injunction entered by any court or other Governmental Entity in connection with the foregoing vacated or reversed and (iv) the execution executing and delivery of delivering any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that that, without limitation to filings fees to be paid to any Governmental Entity in accordance with Section 8.2, in no event shall Galaxy or any of its SubsidiariesParent, or Mars Merger Sub, the Company or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for or triggered by the consummation of the transactions contemplated by this Agreement under any contract or agreementagreement or otherwise.
(b) Subject to the terms and conditions herein provided in this Agreement and without limiting the foregoing, the parties hereto Company (and its Subsidiaries) and Parent (and its Subsidiaries and Affiliates) shall (i) promptlyfile, but in no event later than fifteen or cause to be filed, all required Notification and Report Forms pursuant to the HSR Act with respect to the Merger and the other transactions contemplated by this Agreement within ten (1510) Business Days after the date hereof and file, or cause to be filed, any filing (or such later draft thereof) required under each other Antitrust Law or Foreign Investment Law set forth on Section 6.1(c) of the Company Disclosure Letter as promptly as practicable after the date as may be mutually agreed in writing by the parties hereto)hereof, file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco supply or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made withsupplied, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents documentary material that may be requested pursuant to the HSR Act or any other applicable Antitrust Law or by such Governmental Entity; Foreign Investment Law and (iviii) use its reasonable best efforts to promptly obtain all necessary actions or nonactions, waivers, consents, clearances, approvals and expirations or terminations of waiting periods under the HSR Act and any other applicable Antitrust Law or Foreign Investment Law but in any event prior to the End Date.
(c) In furtherance and not in limitation of the foregoing, Parent (and its Subsidiaries and Affiliates) shall take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated herebyby this Agreement, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of objections any other nation or other jurisdiction or any other person Governmental Entity may assert under any Antitrust Law or Foreign Investment Law with respect to the Merger and the other transactions contemplated herebyby this Agreement, and to avoid or eliminate each and every impediment under any Antitrust Law or Foreign Investment Law that may be asserted by any Governmental Entity with respect to the Mergers Merger and the other transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, including (x) proposing, negotiating, committing to, effecting, agreeing to and effectingexecuting, by consent decree, hold separate order settlement, undertaking, stipulations or otherwise, the sale, divestiture divestiture, transfer, license, hold separate or disposition of any and all of the share capital or other equity voting interests, assets (whether tangible or businesses intangible), businesses, divisions, operations, products or product lines of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or Parent (including its Subsidiaries and Affiliates) and of the Company (including its Subsidiaries), (y) terminating, transferring or creating relationships, contractual rights or other obligations of Parent (including its Subsidiaries and Affiliates) and the Company (including its Subsidiaries); and (z) otherwise taking or committing to take any actions or agree to any undertakings that after the Closing Date would limit the freedom of Holdco or Parent’s (including its Subsidiaries’ (including ’, Affiliates’, and the Surviving Corporations’Corporation’s) or affiliates’ freedom of action with respect to, or its their ability to retain, one or more of its or impose obligations on Parent’s (including its Subsidiaries’ ’, Affiliates’, and the Surviving Corporation’s) future operations with respect to, assets (whether tangible or intangible), businesses, divisions, personnel, operations, products or product lines of Parent (and its Subsidiaries and Affiliates, including the Surviving Corporations’Corporation) businesses, product lines or assetsthe Company (and its Subsidiaries), in each case so as may be required in order to satisfy the conditions to Closing or to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which Action that would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End DateDate (each such action in the foregoing clauses (x), (y) and (z), a “Burdensome Condition”); provided provided, that neither Galaxy nor any of the Company (and its Subsidiaries Subsidiaries) shall become subject to, or consent not be permitted to offer or agree to or otherwise take effectuate any action with respect toBurdensome Condition without the prior written consent of Parent; provided, any requirementfurther, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change that the assets or business of Galaxy or any of Company (and its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs ) shall be required to take agree to or effectuate any Burdensome Condition upon written direction from Parent so long as the effectiveness thereof is conditioned on the Closing. Except as otherwise permitted under this Agreement, Parent shall not (and shall cause its Subsidiaries and Affiliates not to) acquire or agree to acquire any business, or a substantial portion of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business equity of Holdcoany business, Mars, Galaxy that competes with the Company or otherwise operates in the electronic test and their respective Subsidiaries, taken as a whole, at measurement industry if such acquisition would be reasonably likely to prevent or after materially delay the Effective TimeClosing.
(cd) Subject Each of the Company (and its Subsidiaries) and Parent (and its Subsidiaries and Affiliates) shall use its reasonable best efforts, to the extent permitted under applicable legal limitations Law, to (i) consult and cooperate in all respects with each other in connection with any filing or submission with a Governmental Entity in connection with the Merger and the instructions of other transactions contemplated by this Agreement and in connection with any investigation or other inquiry by or before a Governmental Entity, Galaxy and Mars shall keep each Entity or any other apprised of the status of matters Person relating to the completion of Merger and the other transactions contemplated therebyby this Agreement, including promptly furnishing (ii) keep the other with copies parties hereto promptly informed of notices or other communications any communication received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, such party from any third party and/or any Governmental Entity and of any communication received in connection with respect to such transactions. Galaxy any proceeding by any other Person, in each case regarding the Merger and Mars shall permit counsel for the other party reasonable opportunity transactions contemplated by this Agreement (and in the case of such written communications, furnish the other parties with a copy of such communication), (iii) permit the other parties to review and discuss in advance, and consider in good faith the views of the other party parties in connection with, any proposed written filing, submission or other communication to any Governmental Entity. Each of Galaxy Entity or other Person, and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it consults with the other party in advance and, (iv) to the extent not prohibited by such the applicable Governmental EntityEntity or other Person, gives give the other party parties hereto the opportunity to attend and participateparticipate in any meetings (whether in-person or otherwise), telephone or video calls or other conferences. Notwithstanding the forgoing, any party may, as it deems advisable and necessary, reasonably (x) redact materials to protect competitively sensitive information or information concerning valuation, or as necessary to address reasonable attorney-client, attorney work product or other privilege concerns and (y) reasonably designate any competitively sensitive material provided to the other parties under this Section 5.7(d) 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 written permission is obtained in advance from the party providing the materials).
(de) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.65.7, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging by any Governmental Entity under any Antitrust Law or Foreign Investment Law challenging, hindering, impeding, interfering with or delaying any transaction contemplated by this Agreement as violative of any such Law, each Parent shall, upon consultation with the Company and in consideration of Galaxy the Company’s views in good faith, be entitled to direct the defense and Mars shall cooperate lead in the development of the defense strategy in all respects with and each other of the Company (and its Subsidiaries) and Parent (and its Subsidiaries and Affiliates) shall use their respective reasonable best efforts to contest and resist any such action Action or proceeding and to have vacated, lifted, reversed or overturned any such Action, decree, judgment, injunction or other such order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Mergers Merger and the other transactions contemplated by this Agreement.
(f) Parent shall, upon consultation with the Company and in consideration of the Company’s views in good faith, be entitled to lead the development of the (i) strategy for obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals and expirations or terminations of waiting periods so as to enable Closing to occur prior to the End Date, (ii) response to any request from, inquiry by, or investigation by (including, subject to the last sentence of this Section 5.7(f), the timing, nature and substance of all such responses) any Governmental Entity with respect to the Merger and the other transactions contemplated by this Agreement and (iii) strategy for the defense and settlement of any action brought by or before any Governmental Entity that has authority to enforce the applicable Antitrust Laws or Foreign Investment Laws. In furtherance thereof, and subject to applicable Law, the Company and its Subsidiaries shall not settle or compromise or offer to settle or compromise any request, inquiry, investigation or other Action by a Governmental Entity with respect to the Merger or the transactions contemplated hereby without the prior written consent of Parent (which may be withheld or given in its sole discretion). Notwithstanding anything to the contrary in this Agreement, no party shall extend any waiting period under the HSR Act (including by withdrawing and refiling its filing under the HSR Act) or any other Antitrust Law or Foreign Investment Law or enter into any agreement with any Governmental Entity to delay, or otherwise not to consummate as promptly as practicable, the Merger or the transactions contemplated by this Agreement except with the prior written consent of the other party (such consent not to be unreasonably withheld).
Appears in 2 contracts
Sources: Merger Agreement (National Instruments Corp), Merger Agreement (Emerson Electric Co)
Efforts. (a) Subject to the terms and conditions set forth in of this Agreement, each of the parties hereto Company and Parent shall use all its reasonable best efforts to take promptlytake, or cause to be taken, all actions, actions and to do promptlydo, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws Law to consummate and make effective the Mergers and the other transactions contemplated by this Agreement, including (i) obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) obtaining all necessary consents, approvals or waivers from third parties, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers Merger and the other transactions contemplated by this Agreement and (iv) as promptly as reasonably practicable after the execution and delivery date of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto shall including (i) promptlypreparing and filing, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act consultation with respect to the Mergers and the other transactions contemplated by this AgreementParties, as promptly as reasonably practicable with any Governmental Authority or other Third Party all documentation to effect all necessary, proper or advisable filings, notices, petitions, statements, registrations, submissions of information, applications and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; other documents and (ii) use (andobtaining and maintaining all approvals, in the case of Marsconsents, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consentsregistrations, permits, authorizations, waivers, clearances, approvals, authorizations and expirations or terminations of waiting periods are other confirmations required to be obtained from, from any third parties Governmental Authority or other Governmental Entities Third Party, in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consentseach case, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things are necessary, proper or advisable to consummate and make effective the Merger and the other transactions contemplated herebyby this Agreement (whether or not such approvals, including taking (andconsents, in registrations, permits, authorizations and other confirmations are conditions to the case consummation of Mars, Holdco or the Merger Subspursuant to Article VIII); provided, cause notwithstanding anything in this Agreement to the contrary, nothing in this Agreement shall require (or be deemed to require) Parent or any of its Affiliates to agree to or accept (nor shall the Company or any of its Subsidiaries, without Parent’s prior written consent, agree to or accept) any obligation, restriction, requirement, limitation, divestiture, condition, remedy or other action imposed by a Governmental Authority that would reasonably be expected to result in a material adverse effect on the financial condition, properties, assets and liabilities (considered together), business or results of operation of the Surviving Corporation (assuming the consummation of the Merger) and its Subsidiaries, taken as a whole (any such obligation, restriction, requirement, limitation, divestiture, condition, remedy or other action, a “Burdensome Condition”).
(b) In furtherance and not in limitation of the foregoing, each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objectionsParent and the Company, if anyincluding, as the United States Federal Trade Commissionnecessary, the Antitrust Division respective Affiliates of each, shall (i) make, as promptly as reasonably practicable, and in any event within fifteen (15) Business Days of the United States Department date of Justicethis Agreement, state antitrust enforcement authorities or competition authorities an appropriate filing of any other nation or other jurisdiction or any other person may assert under any Law a Notification and Report Form pursuant to the HSR Act with respect to the transactions contemplated herebyby this Agreement and (ii) make, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon promptly as reasonably possible (practicable, and in any event no later than within twenty-five (25) Business Days of the End Date)date of this Agreement, includingeach in a materially complete form, without limitationany filing that may be required with any other Governmental Authority. Each of the Company and Parent shall supply as promptly as reasonably practicable any additional information and documentary material that may be requested by any Governmental Authority and necessary to obtain approval, (x) proposingconsent, negotiatingregistration, committing a permit, authorization or other confirmation from such Governmental Authority and furnish to the other such necessary information and effecting, by consent decree, hold separate order or otherwise, reasonable assistance as the sale, divestiture or disposition other may reasonably request in connection with the preparation of any assets or businesses of Marsrequired applications, Holdco or their respective Subsidiaries or affiliatesnotices, or of Galaxy or its Subsidiaries registrations and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case requests as may be required in order or advisable to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, be filed with any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate (including providing financial information and certificates as well as personal information of senior management or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any directors of the actions described Company or Parent, as applicable, and making individuals with appropriate seniority and expertise of the Company or Parent, as applicable, available to participate in clauses (iv)(x) discussions or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Timehearings).
(c) Subject to Except as prohibited by applicable legal limitations Law or Order, each of Parent and the instructions Company, including, as necessary, the respective Affiliates of any Governmental Entityeach, Galaxy shall (i) cooperate and Mars shall keep consult with each other apprised of in connection with any filing or submission with a Governmental Authority in connection with the status of matters transactions contemplated by this Agreement and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the completion transactions contemplated by this Agreement, including any Proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions (except documents or portions thereof for which confidential treatment has been requested or given), (ii) promptly inform the other Party of (and if in writing, supply to the other Party) any substantive communication received by such Party from, or given by such Party to, any Governmental Authority, including the Federal Trade Commission or the Antitrust Division of the Department of Justice, and of any material communication received or given in connection with any Proceeding by a private party, in each case regarding any of the transactions contemplated therebyby this Agreement, including promptly furnishing the (iii) consult with each other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or prior to taking any of their respective Subsidiaries, from any third party and/or any Governmental Entity material position with respect to such transactions. Galaxy and Mars shall the filings under the HSR Act or in discussions with or filings to be submitted to any other Governmental Authority, (iv) permit counsel for the other party reasonable opportunity to review and discuss in advance, and consider in good faith the views of the other party (to the extent timely communicated) in connection with, any proposed written communication analyses, presentations, memoranda, briefs, arguments, opinions and proposals to be submitted to any Governmental Entity. Each Authority and (v) coordinate with the other in preparing and exchanging such information and promptly provide the other (and its counsel) with copies of Galaxy all filings, presentations or submissions (and Mars agrees a summary of any oral presentations) made by such Party with any Governmental Authority relating to this Agreement or the transactions contemplated hereby, including under the HSR Act, provided, however, that materials may be redacted or provided on an outside counsel only basis as necessary to address reasonable privilege or confidentiality concerns (including with respect to other businesses of the Parent, its Subsidiaries and any other Affiliates or stockholders of Parent or the Company), and to remove references concerning the valuation of the Company and its Subsidiaries, or Parent and its Subsidiaries, and other competitively sensitive material.
(d) Unless prohibited by applicable Law or Order or by the applicable Governmental Authority, each of the Company and Parent, including, as necessary, the respective Affiliates of each, shall (i) to the extent reasonably practicable, not to participate in or attend any meeting, or engage in any substantive meeting or discussion, either in person or by telephoneconversation, with any Governmental Entity Authority in connection respect of the Merger (including with respect to any of the proposed transactions unless it consults with actions referred to in Section 7.1(a)) without the other party in advance andother, (ii) to the extent not reasonably practicable, give the other reasonable prior notice of any such meeting or conversation and (iii) in the event one such Party is prohibited by applicable Law or Order or by the applicable Governmental Authority from participating or attending any such Governmental Entitymeeting or engaging in any such conversation, gives keep the other party the opportunity to attend and participatenon-participating Party reasonably apprised with respect thereto.
(de) In furtherance and not in limitation of the covenants of foregoing, Parent and the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, Company shall each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective its reasonable best efforts to contest and resist any such action avoid the entry of, or proceeding and to have vacated, lifted, reversed or overturned overturned, any decree, judgment, injunction or other orderOrder, whether temporary, preliminary or permanent, that is in effect and that prohibitswould restrain, prevents prevent or restricts delay the consummation of the Mergers Merger and the other transactions contemplated hereby.
(f) To the extent that any consent, approval or waiver of a Third Party (other than any Governmental Authority) is required with respect to any Contract in connection with the transactions contemplated by this Agreement (each, a “Third Party Consent”), the Company and Parent shall cooperate with each other and use their respective reasonable best efforts to obtain such Third Party Consent as promptly as practicable after the date of this Agreement; provided that nothing in this Agreement shall require the Company to make any payment or deliver anything of value to any Third Party in order to obtain any Third Party Consent. Parent shall reasonably cooperate with the Company in connection with obtaining such Third Party Consents, including by making its Representatives reasonably available to meet with such Third Parties by telephone or in person during normal business hours as reasonably requested by the Company, and shall reasonably cooperate to provide such documentation or information as is required by any such Third Parties as promptly as practicable.
Appears in 2 contracts
Sources: Merger Agreement (Wmih Corp.), Merger Agreement (Nationstar Mortgage Holdings Inc.)
Efforts. (a) Subject to Upon the terms and subject to the conditions set forth in this AgreementAgreement (including Section 5.5(b)), each of the parties hereto shall agrees to use all its commercially reasonable best efforts to take promptlytake, or cause to be taken, all actions, actions and to do promptlydo, or cause to be done, and to assist and cooperate with the other parties party in doing, all things that are necessary, proper or advisable under this Agreement and applicable Laws to consummate and make effective the Mergers Merger and the other transactions contemplated by this Agreement as promptly as practicable, including using commercially reasonable efforts to accomplish the following: (i) obtain all required consents, approvals or waivers from third parties, including under any Material Contract as may be necessary in order to consummate the Merger and the other transactions contemplated hereby (and Company and Parent shall cooperate in seeking any other consents, approvals or waivers from third parties under any other Contract if the parties determine that doing so is necessary or desirable in connection with the consummation of the Merger and the other transactions contemplated by this Agreement), including (iii) obtaining obtain all necessary required actions or nonactions, waivers, consents, clearances, approvals, orders and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, authorizations from Governmental Entities and the making of Entities, make all necessary registrations registrations, declarations and filings and the taking of take all steps as may be necessary to obtain an approval, clearance approval or waiver from, or to avoid an action or proceeding any Action by, any Governmental Entity, (ii) obtaining all necessary consents, approvals or waivers from third parties, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms including filings under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, Commission and the Antitrust Division of the United States Department of JusticeJustice within the time periods specified thereunder (or, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law if such time period is not specified, within a reasonable time, except that with respect to the transactions contemplated hereby, making of the appropriate filing of a Notification and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect Report Form pursuant to the Mergers so as HSR Act, the parties shall make such filing within 10 Business Days of the date hereof, unless otherwise agreed to enable by the Closing to occur as soon as reasonably possible (and in any event no later than the End Dateparties), including(iii) resist, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order contest or otherwise, the sale, divestiture or disposition of defend any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ Action (including the Surviving Corporations’administrative or judicial Actions) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or challenging the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated therebyhereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such action or proceeding and seeking to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, order (whether temporary, preliminary or permanent, ) that is in effect and that prohibitscould restrict, prevents prevent or restricts prohibit consummation of the Mergers transactions contemplated hereby, including by pursuing avenues of administrative and judicial appeal, and (iv) execute and deliver any additional instruments necessary to consummate the transactions contemplated hereby and fully to carry out the purposes of this Agreement without the prior written consent of the other party. Each of the parties hereto shall furnish to each other party such necessary information and reasonable assistance as such other party may reasonably request in connection with the foregoing. Subject to applicable Law relating to the exchange of information, Parent and Company shall have the right to review in advance, and to the extent practicable, each shall consult with the other in connection with, all of the information relating to Parent or Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. In exercising the foregoing rights, each of Parent and Company shall act reasonably and as promptly as practicable. Subject to applicable Law and the instructions of any Governmental Entity, Company and Parent shall keep each other reasonably apprised of the status of matters relating to the completion of the transactions contemplated hereby, including promptly furnishing the other with copies of notices or other written communications received by Company or Parent, as the case may be, or any of their respective Subsidiaries, from any Governmental Entity and/or third party with respect to such transactions, and, to the extent practicable under the circumstances, shall consult with the other party in advance of, and provide the other party and its counsel with the opportunity to attend and participate in, any meeting with any Governmental Entity in respect of any filing, investigation or other inquiry in connection with the transactions contemplated hereby at which substantive matters are to be discussed. Notwithstanding the foregoing, Parent will determine strategy, lead all proceedings and coordinate all activities with respect to seeking any actions, consents, approvals or waivers of any Governmental Entity or third party as contemplated hereby, and Company and its Subsidiaries will use its commercially reasonable efforts to take such actions as reasonably requested by Parent in connection with obtaining any such actions, consents, approvals or waivers; provided that Parent will in good faith consider any views or input provided by Company with respect to such matters.
(b) Parent shall, and shall cause its Subsidiaries to, propose, negotiate, offer to commit and effect (and if such offer is accepted, commit to and effect), by consent decree, hold separate order, or other agreement, the sale, divestiture or disposition of such assets or businesses of Parent or any of its Subsidiaries, or effective as of the Effective Time, the Surviving Corporation or its Subsidiaries, or otherwise offer to take or offer to commit to take any action (including any action that limits its freedom of action, ownership or control with respect to, or its ability to retain or hold, any of the businesses, assets, product lines, properties or services of Parent, the Surviving Corporation, or any of their respective Subsidiaries) which it is lawfully capable of taking and if the offer is accepted, take or commit to take such action, in each case as may be required so as to enable the Closing to occur as promptly as practicable (any of the foregoing, a “Divestiture Action”). Notwithstanding the foregoing or anything contained in this Agreement that may be to the contrary, (1) neither Parent nor Company shall be required to take any Divestiture Action that is not conditioned upon consummation of the Merger, (2) Company shall not agree to take any Divestiture Action without the consent of Parent, (3) none of Parent or any of its Subsidiaries shall be required to take or accept (or commit to take or accept) any action, condition, restriction, obligation or requirement (each of the foregoing, for the purposes of this Section, an “action”) in order to obtain any approval, exemption or other authorization of a Governmental Entity involving any business or asset of Parent or its Subsidiaries that would otherwise be required by this Section 5.5 unless there is no action (including a Divestiture Action) that would permit such approval, exemption or other authorization of a Governmental Entity to be obtained that involves solely businesses or assets of Company and its Subsidiaries and to which Parent is required by this Section 5.5, or is otherwise willing in Parent’s sole discretion, to agree and (4) Parent shall not be required to take (pursuant to this Section 5.5 or any other provision of this Agreement) any action (including a Divestiture Action) to the extent such action (including a Divestiture Action), individually or in the aggregate with all other actions (including Divestiture Actions), would reasonably be expected to result in a Substantial Detriment. “Substantial Detriment” means (i) any material limitation, restriction or prohibition on the ability of Parent or any of its Subsidiaries effectively to acquire, hold or exercise full rights of ownership (including with respect to voting) of the Shares or shares of the Surviving Corporation to be acquired or owned pursuant to the Merger or the assets of Company and its Subsidiaries, (ii) a loss by Parent and its Subsidiaries of a material benefit or material benefits (including synergies), after taking into account the adverse effect of the proposed actions on Parent and its Subsidiaries (including, for these purposes, the Surviving Corporation and its Subsidiaries), arising from or relating to the Merger and the other transactions contemplated by this Agreement, (iii) an impact that is adverse in a material manner to the assets, business, results of operation or financial condition of Parent and its Subsidiaries, assuming for purposes of this determination that Parent and its Subsidiaries are of equivalent size to the Surviving Corporation and its Subsidiaries, taken as a whole or (iv) an impact that is adverse in a material manner to the assets, business, results of operation or financial condition of the Surviving Corporation and its Subsidiaries, taken as a whole).
Appears in 2 contracts
Sources: Merger Agreement (PSS World Medical Inc), Merger Agreement (McKesson Corp)
Efforts. (a) Subject to Upon the terms and subject to the conditions set forth in of this Agreement, each of the parties hereto shall Parties will use all reasonable best efforts to take promptlytake, or cause to be taken, all actions, actions and to do promptlydo, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective defend the Mergers and Transactions. From the other transactions contemplated by this AgreementExecution Date through the Closing Date, including (i) obtaining Seller will operate the Radiopharmacy Business in the Ordinary Course of Business in all necessary actions or nonactions, waivers, consents, clearances, approvalsmaterial respects. Not in limitation of the foregoing, and expirations notwithstanding any limitation in the foregoing:
(a) If an application (not including, for greater certainty, mere investigations or terminations inquiries) is initiated by the Commissioner under section 92 of waiting periodsthe Competition Act seeking an Order from the Competition Tribunal that would rescind, dissolve or otherwise unwind any of the Transactions or any provision of any Transaction Document, in whole or in part, then in each such case, Buyer and its Affiliates and Subsidiaries will, prior to an Order being made by the Competition Tribunal, take any and all actions (at its and their own cost and expense) including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance by selling or waiver fromdivesting, or agreeing to sell or divest, assets (including any of the Purchased Assets) to a third party or modifying or terminating, or agreeing to modify or terminate, any existing commercial relationships (other than with Seller) or Contracts (other than any of the Transaction Documents) or entering into, or agreeing to enter into, supply agreements and/or agreements for the licensing of intellectual property, in each case, solely to the extent required to avoid an action or proceeding byOrder from the Competition Tribunal requiring rescission, any Governmental Entity, (ii) obtaining all necessary consents, approvals or waivers from third parties, (iii) defending any lawsuits dissolution or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation unwinding of any of the Mergers and Transactions in a manner that involves Seller or its Affiliates or adversely affects any of Seller’s rights under the Transaction Documents, or that would involve the put or other transactions contemplated by this Agreement and (iv) the execution and delivery sale of any additional instruments necessary of the Purchased Assets or Assumed Liabilities back to consummate Seller or its Affiliates; provided further that Buyer will, and will cause its Affiliates, to take any and all actions (at its and their own cost and expense) to have vacated, lifted, reversed, repealed or rescinded any Order from the transactions contemplated by this Agreement; providedCompetition Tribunal requiring rescission, however, that in no event shall Galaxy dissolution or other unwinding of any of the Transactions in a manner that involves Seller or its SubsidiariesAffiliates or adversely affects any of Seller’s rights under the Transaction Documents, or Mars that would involve the put or other sale of any of the Purchased Assets or Assumed Liabilities back to Seller or its Subsidiaries Affiliates; provided further that Buyer will not consent to any agreement with the Commissioner (whether under Section 92 of the Competition Act or Holdco otherwise) that involves rescission, dissolution or unwinding of any of the Transactions, in whole or in part, or that involves the put or sale of any of the Purchased Assets or Assumed Liabilities back to Seller or its Affiliates or that adversely affects any of Seller’s rights under the Transaction Documents; and provided further that Buyer will not be required to pay prior take actions that, in the aggregate, would cause a material adverse effect on its combined business (including the Radiopharmacy Business). In addition, Buyer will provide Seller on a timely basis with a copy of all communications and correspondence with respect to the Effective Time any feeTransactions, penalty or other consideration to any third party for any consent or approval required for including attachments and briefs, between (A) Buyer, its Affiliates and its advisors, on the consummation one hand, and (B) the Commissioner of Competition, on the transactions contemplated by this Agreement under any contract or agreementother.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this AgreementBuyer agrees, and use will cause its Affiliates, to exercise reasonable best efforts to cause take any and all actions (at its and their own cost and expense) necessary to avoid, contest and defend against any dissolution, rescission or other unwinding or modification of the expiration Transactions, in whole or termination of any applicable waiting periods in part, under the HSR Investment Canada Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed reversed, repealed or overturned rescinded any decreeOrder for dissolution, judgment, injunction rescission or other order, whether temporary, preliminary unwinding or permanent, that is in effect and that prohibits, prevents or restricts consummation modification of the Mergers and Transactions that may be initiated, asserted or issued by any Governmental Authority with respect to the other transactions contemplated Transactions, under the Investment Canada Act, including by this Agreementway of notice, requirement, referral, investigation, inquiry, Order or Legal Proceeding.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Lantheus Holdings, Inc.), Asset Purchase Agreement (Lantheus Holdings, Inc.)
Efforts. (a) Subject to From and after the terms date hereof, Purchaser, Seller and conditions set forth in this Agreement, each of the parties hereto their respective Affiliates shall use all reasonable best efforts to take promptlytake, or cause to be taken, all actions, and to do promptlydo, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under any applicable Laws Law to consummate and make effective in the Mergers most expeditious manner possible the Transaction and the other transactions contemplated by this Agreement, including (i) obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals, the preparation and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making filing of all necessary forms, registrations and filings and notices required to be filed to consummate the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) obtaining all necessary consents, approvals or waivers from third parties, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers Transaction and the other transactions contemplated by this Agreement as soon as practicable and (ivii) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers Transaction and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement. Without limiting the foregoing, Purchaser, Seller and their respective Affiliates shall use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions actions, and to do, or cause to be done, all other things necessary, proper or advisable to consummate obtain (and make effective shall cooperate with each other in obtaining) any Regulatory Approvals (which actions shall include furnishing all information required in connection with such Approvals) required to be obtained or made by Purchaser, Seller, the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco other Seller Entities or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity Target Entities in connection with the proposed transactions unless it consults with Transaction or 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.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction transactions contemplated by this Agreement as violative of any LawAgreement. Additionally, each of Galaxy Purchaser and Mars shall cooperate in all respects with each other Seller (and their respective Affiliates) shall use their respective reasonable best efforts to contest fulfill all conditions precedent to this Agreement (including those set forth in Section 7.1) and resist shall not take any such action after the date of this Agreement that would reasonably be expected to impair or proceeding and materially delay the obtaining of, or result in not obtaining, any Regulatory Approval necessary to have vacated, lifted, reversed be obtained prior to the Closing. To the extent that transfers of any Permits are required as a result of the execution of this Agreement or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts the consummation of the Mergers and Transaction or the other transactions contemplated by this Agreement, the Parties shall use reasonable best efforts to effect such transfers.
Appears in 2 contracts
Sources: Stock and Asset Purchase Agreement (GCP Applied Technologies Inc.), Stock and Asset Purchase Agreement (GCP Applied Technologies Inc.)
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall, and the Company shall cause each of its Subsidiaries to, use all reasonable best efforts to take promptly, or cause to be taken, all actions, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate the Offer and to consummate and make effective the Mergers Merger and the other transactions contemplated by this Agreement, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers Merger and the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments reasonably necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars the Company or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreementagreement (other than de minimis amounts or if Parent and Merger Sub have provided adequate assurance of repayment). Neither party shall take any action that is intended or would reasonably be expected to, individually or in the aggregate, result in any of the Tender Offer Conditions or the conditions to the Merger set forth in Article VI not being satisfied or the satisfaction of those conditions being materially delayed.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto Company and Parent shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of of, the Merger and the transactions contemplated hereby and (y) timely making all such filings and timely obtaining seeking all such consents, permits, authorizations or approvals; , (iiiii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; Entity and (iviii) take, or cause to be taken, taken all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the Merger and the other transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the Merger and the other transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers Merger so as to enable the Expiration Date and the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any material assets or businesses of Mars, Holdco Parent or their respective its Subsidiaries or affiliates, controlled affiliates or of Galaxy the Company or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco Parent or its Subsidiaries’ (including the Surviving Corporations’Corporation’s) or controlled affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ Subsidiaries (including the Surviving Corporations’Corporation’s) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, of or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the consummation of the Offer on the Expiration Date or the Closing, materially delaying the Expiration Date or the Closing or delaying the Expiration Date or the Closing beyond the End Date; provided that neither Galaxy the Company nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy the Company or any of its Subsidiariesaffiliates, unless such requirement, condition, understanding, agreement or order is binding on Galaxy the Company only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy the Company and Mars Parent shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated therebyhereby, including to the extent permitted by Law promptly furnishing the other with copies of notices or other communications sent or received by Galaxy the Company or MarsParent, as the case may be, or any of their respective Subsidiaries, to or from any third party and/or any Governmental Entity with respect to such transactions. Galaxy The Company and Mars Parent shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, advance any proposed written communication to any supervisory or Governmental Entity. Each of Galaxy the Company and Mars Parent agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any LawAgreement, each of Galaxy the Company and Mars Parent shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers Merger and the other transactions contemplated by this Agreement. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.6 shall limit a party’s right to terminate this Agreement pursuant to Section 7.1(b) or 7.1(c) so long as such party has, prior to such termination, complied with its obligations under this Section 5.6.
(e) It is agreed that this Section 5.6 shall not govern the obligations of the parties with respect to obtaining the Financing, which obligations are set forth in Section 5.11.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Elkcorp), Agreement and Plan of Merger (CGEA Investor, Inc.)
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, including Section 5.5 and the other provisions of this Section 5.3, Seller and Purchaser shall reasonably cooperate with each of the parties hereto other and use (and shall use all cause their respective Affiliates to use) their respective reasonable best efforts to take promptly, or cause to be taken, taken all actions, and to do promptly, or cause to be donedone all things, and to assist and cooperate with the other parties in doing, all things reasonably necessary, proper or advisable on their part under applicable Laws to consummate and make effective the Mergers and the other transactions contemplated by this Agreement, including (i) obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) obtaining all necessary consents, approvals or waivers from third parties, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary applicable Law to consummate the transactions contemplated by this Agreement; providedAgreement as soon as practicable after the date hereof (including, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation avoidance of doubt, obtaining the transactions contemplated by this Agreement under any contract or agreementConsent Order).
(b) Subject to the terms and conditions herein provided and without Without limiting the foregoinggenerality of Section 5.3(a), the parties hereto shall (i) promptlyunless otherwise agreed in writing by the Parties, Purchaser shall file as promptly as practicable, but in any event no event later than fifteen (15) Business Days after the date hereof hereof, all necessary notices, reports and other filings (or such later date drafts thereof where applicable) and shall use its reasonable best efforts to obtain as may promptly as practicable all consents, registrations, approvals, permits and authorizations necessary to be mutually agreed obtained under any Foreign Antitrust Laws in writing by order to consummate the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, Purchaser shall prepare and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity provide as promptly as practicable any additional information or documents that may be all documentation requested pursuant to any Law or by such Governmental Entity; and (iv) takethe FTC in connection with its review of Purchaser as an acceptable purchaser of the Business, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case terms of Mars, Holdco this Agreement or the Merger Subs, cause each terms of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective TimeAncillary Agreements.
(c) Subject to applicable Laws relating to the exchange of information, Purchaser and Seller shall have the right to review in advance, and, to the extent practicable, each will consult with the other on and consider in good faith the views of the other in connection with, all of the information relating to Purchaser or Seller or the Business, as the case may be, and any of their respective Affiliates, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the transactions contemplated by this Agreement. In exercising the foregoing rights, Seller and Purchaser shall act reasonably and as promptly as practicable.
(d) Without limiting the generality of the foregoing, Purchaser shall take, and cause its Affiliates to take, any and all actions reasonably necessary to make any filings, or obtain the Consent Order and any other consents, clearances or approvals, in each case, that are required under or in connection with any Antitrust Law to consummate the transactions contemplated hereby prior to the Outside Date including contesting, defending and appealing any Action, threatened or pending preliminary or permanent injunction or other Order, decree or applicable Law that would adversely affect the ability of any Party to consummate the transactions contemplated hereby or by any Ancillary Agreement and taking any and all other actions to prevent the entry, enactment or promulgation thereof, in each case, if and only to the extent reasonably necessary.
(e) Purchaser will not take, or cause to be taken by any of its Affiliates, any actions or do, or cause to be done by any of its Affiliates, any things that would be reasonably likely to delay the obtaining of the Consent Order, the Closing or the Burgundy Closing or to cause any Governmental Entity to object to the transactions contemplated by this Agreement, any Ancillary Agreement, the Burgundy Merger Agreement or any Ancillary Burgundy Agreement, including acquiring or agreeing to acquire any assets or businesses engaged in whole or in part in a line of business similar to the Business.
(f) If staff of the Bureau of Competition of the FTC (or the Director of the Bureau of Competition of the FTC with respect to any material provisions of this Agreement or any Ancillary Agreement) notifies Seller or Burgundy that this Agreement or any of the Ancillary Agreements is not an acceptable manner of divesting the Transferred Assets and the proposed Consent Order is being withheld pending modification of the terms or provisions of this Agreement or any Ancillary Agreement, as applicable, subject to Section 5.3(i), Seller and Purchaser shall reasonably seek to modify this Agreement as may be necessary to satisfy the FTC.
(g) Subject to applicable Laws, Purchaser and Seller shall, upon request by the other, furnish Seller, Burgundy or Purchaser, as applicable, with all information concerning itself, its Affiliates, directors, officers or equityholders, as applicable, and such other matters as may be reasonably necessary or advisable in connection with any statement, filing, notice or application made (or to be made) by or on behalf of Purchaser, Seller, Burgundy or any of their respective Affiliates to any Governmental Entity in connection with the transactions contemplated by this Agreement or any Ancillary Agreement, including with respect to the Consent Order or any other Antitrust Law. Notwithstanding the foregoing, in connection with the performance of each Party’s respective obligations, Seller and Purchaser may, as each determines is reasonably necessary, designate competitively sensitive material provided to the other pursuant to this Section 5.3(g) as “Outside Counsel Only”. Such materials and the information contained therein shall be given only to the outside legal limitations counsel of the recipient and will not be disclosed by such outside counsel to directors, officers or employees of the recipient unless express permission is obtained in advance from the source of the materials (Seller or Purchaser, as the case may be) or its legal counsel. Notwithstanding anything to the contrary in this Section 5.3(g), materials provided to the other Parties or their counsel may be redacted to remove references concerning the valuation of the Business or information otherwise not germane to regulatory review.
(h) Subject to applicable Laws and the instructions of any Governmental Entity, Galaxy Seller and Mars Purchaser shall keep each the other apprised of the status of matters relating to the completion consents, clearances, approvals or authorizations of any Governmental Entity of the transactions contemplated therebyby this Agreement or the Burgundy Merger Agreement, including promptly furnishing the other with copies of notices or other communications received by Galaxy Seller or MarsPurchaser, as the case may be, or any of their respective SubsidiariesAffiliates, from any third party and/or any Governmental Entity with respect to such transactionsconsents, clearances, approvals or authorizations (except that no copies of such notices or other communications will be required to be furnished to the extent they relate exclusively to the Burgundy Merger Agreement). Galaxy and Mars Neither Seller nor Purchaser shall permit counsel for the any of their respective Affiliates, officers or any other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not Representatives to participate in any substantive meeting or discussion, either in person or by telephone, (other than purely administrative phone calls) with any Governmental Entity in connection respect of any consents, clearances, approvals, authorizations, filings, investigation or other inquiry with respect to the proposed transactions contemplated by this Agreement unless it such Party consults with the other party Party in advance and, to the extent not prohibited permitted by such Governmental Entity, gives the other party Party the opportunity to attend and participateparticipate thereat.
(di) In furtherance and not in limitation of Notwithstanding the covenants of foregoing or anything to the parties contained contrary in this Section 5.6Agreement, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be institutedi) challenging any transaction contemplated by nothing in this Agreement as violative shall require (A) Seller or its Affiliates or Purchaser or its Affiliates to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing, or (B) Seller or its Affiliates to take or agree to take any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers and the other transactions not contemplated by this Agreement, other than any action that is reasonably required by, or any condition of or other term reasonably imposed by, the FTC in connection with or arising out of the Consent Order, (ii) the rights and obligations of the Parties under this Agreement with respect to the transfer of the Transferred Registrations shall be governed by Section 5.20 and the Transition Services Agreement (and not this Section 5.3), (iii) the rights and obligations of the Parties under this Agreement with respect to Third-Party Consents shall be governed by Section 5.5 (and not this Section 5.3), and (iv) all costs incurred in connection with obtaining any consents or approvals or taking any other action required by this Section 5.3 (including making any filing or application), including any filing fees under Antitrust Laws or with respect to any of the Transferred Registrations, shall be borne by Purchaser.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Amgen Inc), Asset Purchase Agreement (Celgene Corp /De/)
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto to this Agreement shall, and NPCC shall cause DCLIC to, use all its reasonable best efforts (subject to, and in accordance with, applicable Law) to take promptly, or to cause to be taken, all actions, and to do promptly, or to cause to be done, and to assist and to cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Mergers Merger and the other transactions contemplated by this Agreement, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, consents and approvals, and expirations or terminations of waiting periods, including the Galaxy Specified NPCC Approvals and the Mars Specified USAC Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement and Agreement, (iv) the execution and delivery of any additional instruments reasonably necessary to consummate the transactions contemplated by this Agreement; provided, however, that Agreement and (v) such actions as necessary to cause the conditions to Closing set forth in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco Article 6 to be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreementsatisfied.
(b) Subject to the terms and conditions herein provided set forth in this Agreement and without limiting the foregoing, the parties hereto NPCC and USAC shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations waivers or terminations of waiting periods approvals are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby by this Agreement and (y) timely making all such filings and timely obtaining seeking all such consents, permits, authorizations or approvals; , (iiiii) supply use reasonable best efforts to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or to cause to be taken, all other actions and to do, or to cause to be done, all other things necessary, proper or advisable to consummate and make effective the Merger and the other transactions contemplated herebyby this Agreement, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as reasonably may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction Governmental Entity or any other person may assert under any Regulatory Law (as hereinafter defined) with respect to the Merger and the other transactions contemplated herebyby this Agreement, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers Merger so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End DateDate (as hereinafter defined)), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (yiv) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated therebyby this Agreement, including to the extent permitted by Law promptly furnishing the other with copies of notices or other communications received by Galaxy NPCC or MarsUSAC, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy thereto.
(c) For purposes of this Agreement, “Regulatory Law” means any and Mars shall permit counsel for the all state, federal and foreign statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other party reasonable opportunity to review in advanceLaws requiring notice to, and consider in good faith the views of the other party in connection filings with, any proposed written communication to or the consent or approval of, any Governmental Entity. Each of Galaxy and Mars agrees not to participate in , or that otherwise may cause any substantive meeting or discussionrestriction, either in person or by telephone, with any Governmental Entity in connection with the proposed Merger and the transactions unless it consults contemplated thereby, including (i) the ▇▇▇▇▇▇▇ Act of 1890, the ▇▇▇▇▇▇▇ Antitrust Act of 1914, the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, the Federal Trade Commission Act of 1914 and all other Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening competition through merger or acquisition, (ii) any Law governing the direct or indirect ownership or control of any of the operations or assets of NPCC or DCLIC, including, without limitation, the North Dakota Insurance Code or (iii) any Law with the other party in advance and, to purpose of protecting the extent not prohibited by such Governmental Entity, gives national security or the other party the opportunity to attend and participate.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative national economy of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers and the other transactions contemplated by this Agreementnation.
Appears in 2 contracts
Sources: Merger Agreement (US Alliance Corp), Plan and Agreement of Merger (US Alliance Corp)
Efforts. Buyer shall use commercially reasonable efforts (awithout the obligation to incur any undue expense) Subject to the terms assume and conditions set forth in this Agreement, each perform all of the parties hereto shall use all reasonable best efforts to take promptlyobligations under the Transferred Rights, Obligations and Agreements. To the extent that the assignment or novation of any of the Transferred Rights, Obligations and Agreements, or cause to be takenthe assignment under (S)2.1 above, all actions, and to do promptly, shall require the consent of any other party (or cause to be done, and to assist and cooperate with in the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Mergers and the other transactions contemplated by this Agreement, including (i) obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, event that any Governmental Entity, (ii) obtaining all necessary consents, approvals or waivers from third parties, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and same shall be non-assignable), neither the other transactions agreements contemplated by this Agreement and (iv) nor any actions taken hereunder pursuant to the execution and delivery provisions of any additional instruments necessary such agreements shall constitute an assignment or novation or an agreement to consummate assign or novate if such assignment or novation or attempted assignment or novation would constitute a breach thereof or result in the transactions contemplated by this Agreementloss or diminution thereof; provided, however, that in no event each such case, ▇▇▇▇ and Buyer shall Galaxy use commercially reasonable efforts (without the obligation to incur any undue expense) to obtain the consent of such other party to an assignment or novation to Buyer. Notwithstanding the foregoing, it shall be a condition to closing that any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval consents required for the consummation assignment of the transactions contemplated Transferred Rights, Obligations and Agreements designated by this Agreement under any contract or agreement.
(b) Subject to the Buyer shall have been obtained on terms and conditions herein provided satisfactory to Buyer, in its reasonable discretion. If such consent is not obtained, ▇▇▇▇ shall cooperate with Buyer in any reasonable arrangement designed to provide Buyer with the benefits under any such Transferred Rights, Obligations and without limiting Agreements, including appointing Buyer to act as its agent to perform all of Dana's obligations under such Transferred Rights, Obligations and Agreements and to collect and promptly remit to Buyer all compensation payable pursuant to those Transferred Rights, Obligations and Agreements and to enforce, for the foregoingaccount and benefit of Buyer, any and all rights of ▇▇▇▇ against any other person arising out of the parties hereto breach or cancellation of such Transferred Rights, Obligations and Agreements by such other person or otherwise (any and all of which arrangements shall (i) promptlyconstitute, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by between the parties hereto, a deemed assignment or transfer); provided that, file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers extent that Buyer requires ▇▇▇▇ to undertake any services or take any actions in furtherance of the performance of such Transferred Rights, Obligations and Agreements, any such services or actions shall be the other transactions contemplated by this Agreement, and use reasonable best efforts to cause subject of a separate agreement that the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (andparties shall, in good faith, negotiate as promptly as possible and which shall be mutually acceptable to the case parties. Each party shall be responsible for all of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, its costs and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities expenses incurred by it in connection with the execution and delivery actions required of it under this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective TimeS)2.15.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers and the other transactions contemplated by this Agreement.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions set forth in of this Agreement, BGC Partners, Holdco and the Merger Subs, on the one hand, and each of BGC Holdings and the parties hereto BGC Holdings GP, on the other hand, shall use all cooperate with the other and use, and shall cause their respective Subsidiaries to use, its reasonable best efforts to take promptly(a) take, or cause to be taken, all actions, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Mergers and the other transactions contemplated by this Agreement, including (i) obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) obtaining all necessary consents, approvals or waivers from third parties, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things things, necessary, proper or advisable to consummate and make effective cause the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates conditions to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur be satisfied as soon promptly as reasonably possible practicable (and in any event no later than the End Termination Date), includingand to consummate and make effective, without limitationin the most expeditious manner practicable, the transactions contemplated by this Agreement, including preparing and filing as promptly as practicable all documentation to effect all necessary filings, notifications, notices, petitions, statements, registrations, submissions of information, applications and other documents (including any required or recommended filings under applicable Regulatory Laws), (xb) proposingobtain promptly all approvals, negotiatingconsents, committing clearances, expirations or terminations of waiting periods, registrations, permits, authorizations and other confirmations from any Governmental Entity or third party necessary, proper or advisable to consummate the transactions contemplated by this Agreement and effecting(c) defend any Proceedings challenging this Agreement or the consummation of the transactions contemplated by this Agreement. Notwithstanding anything to the contrary contained in this Agreement, by consent decreenone of BGC Partners, hold separate order or otherwiseHoldco, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco Merger Subs or their respective Subsidiaries or affiliatesshall be required to, and none of BGC Holdings, the BGC Holdings GP and their respective Subsidiaries shall, without the prior written consent of BGC Partners, take any action, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing commit to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect toaction, or its ability agree to retain, one any condition or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assetslimitation, in each case as may be required in order to avoid commencement contemplated by this Section 5.4 that is not conditioned on the consummation of litigation seeking the entry ofMergers or that would result in, or would be reasonably likely to effect the dissolution ofresult in, any injunction, temporary restraining order individually or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Marsaggregate, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be a material in relation to the assets or business of Holdcoadverse effect on BGC Holdings, Mars, Galaxy BGC Partners and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating giving effect to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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 participateMerger.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers and the other transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Corporate Conversion Agreement (BGC Partners, Inc.)
Efforts. (a) Subject to the terms and conditions set forth in of this Agreement, each of the parties hereto shall cooperate with the other parties and use all (and shall cause their respective Affiliates to use) their respective reasonable best efforts (unless, with respect to take promptlyany action, another standard of performance is expressly provided for herein) to promptly (i) take, or cause to be taken, all actions, and to do promptlydo, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable under applicable Laws to cause the conditions to Closing to be satisfied as promptly as reasonably practicable and to consummate and make effective effective, in the Mergers and most expeditious manner reasonably practicable, the other transactions contemplated by this AgreementTransactions, including (i) obtaining preparing and filing promptly and fully all documentation to effect all necessary actions or nonactionsfilings, waiversnotices, consentspetitions, clearancesstatements, approvalsregistrations, submissions of information, applications and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entityother documents, (ii) obtaining obtain all necessary approvals, nondisapprovals, consents, approvals registrations, waivers, permits, authorizations, orders and other confirmations from any Banking Authority (including the OCC) and any other Governmental Authority or waivers from third partiesparty necessary to consummate the Transactions, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers execute and the other transactions contemplated by this Agreement and (iv) the execution and delivery of deliver any additional instruments necessary to consummate the transactions contemplated Transactions and (iv) defend or contest in good faith any Action brought by a third party that could otherwise prevent or impede, interfere with, hinder or delay in any material respect the consummation of the Transactions, in the case of each of clauses (i) through (iv), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other documents, approvals, consents, registrations, permits, authorizations and other confirmations relating to Antitrust Laws or FDI Laws, which are exclusively dealt with in Section 5.03(c) and (d) below. Notwithstanding anything in this Agreement; providedAgreement to the contrary, however, that nothing in no event this Agreement (including any provision of this Section 5.03) shall Galaxy require Parent or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required Affiliates to pay prior to the Effective Time any fee, penalty or other consideration agree to any third party for Materially Burdensome Regulatory Condition and the Company shall not agree to or take any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreementaction constituting a Materially Burdensome Regulatory Condition without Parent’s prior written consent.
(b) Subject to the terms In furtherance and conditions herein provided and without limiting not in limitation of the foregoing, the parties hereto Company and Parent shall each use its reasonable best efforts to (i) promptlytake all actions necessary to ensure that no Takeover Law is or becomes applicable to any of the Transactions and refrain from taking any actions that would cause the applicability of such Laws and (ii) if the restrictions of any Takeover Law become applicable to any of the Transactions, but in no event later than fifteen (15) Business Days after take all actions necessary to ensure that the date hereof (or such later date as Transactions may be mutually agreed in writing consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise lawfully minimize the effect of such Takeover Law on the Transactions.
(c) Each of the parties hereto)hereto agrees: (1) that each of the applicable parties shall make, file any and all required or cause to be made, (A) an appropriate filing of a Notification and Report Forms under Form pursuant to the HSR Act with respect to the Mergers and Transactions (which shall request the other transactions contemplated by early termination of any waiting period applicable to the Transactions under the HSR Act) as promptly as reasonably practicable following the date of this Agreement, and in any event within twenty Business Days following the date of this Agreement, (B) an appropriate filing of a notification and request for an advance ruling certificate pursuant to the Competition Act with respect to the Transactions as promptly as reasonably practicable following the date of this Agreement, and in any event within twenty Business Days following the date of this Agreement, (C) an appropriate filing with the OCC or other applicable Governmental Authority with respect to the approvals or notices listed on Section 8.12(b) of the Company Disclosure Letter in order to obtain the Requisite Change of Control Approvals as promptly as reasonably practicable following the date of this Agreement, and in any event within twenty-five Business Days following the date of this Agreement, and (D) any appropriate filings under any other applicable Antitrust and FDI Laws as promptly as reasonably practicable following the date of this Agreement, (2) to make an appropriate response as promptly as reasonably practicable to any reasonable request for information or documentary material under the HSR Act, the Competition Act, the Other Required Antitrust and FDI Laws and any other applicable Antitrust Laws and FDI Laws and (3) to use reasonable best efforts to avoid or eliminate each and every impediment and obtain all consents under any Antitrust Laws and FDI Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction, so as to enable the parties hereto to consummate the Transactions as promptly as practicable. Without limiting the foregoing, the Company and Parent shall, and shall cause each of their respective Subsidiaries, and, in the case of Parent, any Equity Investor’s Affiliate, to, use their reasonable best efforts to secure the expiration or termination of any applicable waiting periods period under the HSR Act and the Competition Act and to use their reasonable best efforts to secure the expiration or termination of any applicable waiting period and obtain any consent, clearance or approval required under any other applicable Antitrust Laws and FDI Laws and resolve any objections asserted with respect to the Transactions under any applicable Antitrust Law or FDI Law raised by any Governmental Authority, in order to prevent the entry of, or to have vacated, lifted, reversed or overturned, any Restraint that would prevent, prohibit, restrict or delay the consummation of the Transactions. Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned on the Closing. Neither Parent nor the Company shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act; (ii) use (and, in the Competition Act or any other Antitrust Laws or FDI Laws or enter into a timing agreement with any Governmental Authority, or withdraw its initial filing pursuant to the HSR Act, the Competition Act or any other Antitrust Law, as the case may be, and refile any of Marsthem, Holdco without the prior written consent of the other party, such consent not to be unreasonably refused, conditioned or delayed. In furtherance and not in limitation of this Section 5.03(c) and Section 5.03(d), the Merger Subs, cause each of their respective affiliates to use) parties hereto shall use reasonable best efforts to defend through litigation any claim asserted in court by any Person, including any Governmental Authority, under any Antitrust Laws or FDI Laws in order to avoid entry of, or to have vacated or terminated, any Judgment (whether temporary, preliminary or permanent) that could restrain, delay or prevent the Closing, including by pursuing all reasonable avenues of administrative and judicial appeal.
(d) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, (xii) determining whether keep the other party hereto informed in all respects and on a reasonably timely basis of any filings are required communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”), the Canadian Competition Bureau (the “CCB”), the OCC or any other Governmental Authority or third Person (including any Banking Authority) and of any substantive communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to be applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other party hereto with respect to information relating to the other parties hereto and their respective Affiliates, as the case may be, that appears in any filing made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained fromwritten materials submitted to, any third parties Person or other any Governmental Entities Authority in connection with the execution Transactions, other than “Transaction Related Documents” as that term is used in the rules and delivery regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, the CCB or such other applicable Governmental Authority or other Person, give the other parties hereto the opportunity to attend and participate in any meetings, telephonic conferences and videoconferences with such Governmental Authority or other Person regarding any of this Agreement the Transactions. Parent and the consummation of Company shall have the transactions contemplated hereby and (y) timely making right to review in advance all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply written materials submitted to any Governmental Entity Authority in connection with the Transactions, in each case to the extent such materials or communications are related to any Antitrust Laws or FDI Laws or the change of control of any Permit; provided that any such materials may be redacted (A) to remove references concerning the valuation of, other bidders for, or the assessment of other strategic alternatives available to, the Company, (B) as necessary to comply with contractual arrangements or applicable Law and (C) as necessary to address reasonable privilege or confidentiality concerns; provided further that a party may reasonably designate any competitively sensitive material provided to another party under this Section 5.03(d) as “Outside Counsel Only”, in which case such materials and the information contained therein shall be given only to outside counsel of the recipient and shall not be disclosed by such outside counsel to employees, officers or directors of the recipient without the advance written consent of the party providing such materials. In furtherance of the foregoing, Parent shall use its reasonable best efforts, and shall use its reasonable best efforts to cause its Affiliates (including Equity Investor’s Affiliates) to provide as promptly as practicable (including using reasonable best efforts to provide within five (5) Business Days) such information as is requested by the applicable Government Authority in connection with the Requisite Change of Control Approvals, including providing the information or taking the actions specified in Section 5.03(d) of the Company Disclosure Letter; provided that, to the extent a Government Authority requests any additional personal or financial information of any indirect owners or documents control persons of Parent who are individuals, Parent may seek to obtain a waiver or offer to provide alternative customarily accepted information so long as such attempt would not be reasonably expected to delay in any material respect, impair or prevent the applicable party or parties from obtaining the Requisite Change of Control Approvals. Notwithstanding anything to the contrary in this Agreement, with respect to any filing or supplement thereto required by a Governmental Authority that may be requested pursuant include sensitive financial or other information (including but not limited to any Law sensitive personal information) with respect to Parent or by Parent Related Parties, such Person may elect, in such Person’s sole discretion, to provide such information to such Governmental Entity; Authority directly through its legal counsel.
(e) Notwithstanding anything in this Agreement to the contrary, the foregoing Section 5.03(a) through Section 5.03(d), and not any other provisions, will solely govern the parties’ required efforts in order to make any required notices or filings, and obtain any consents or approvals, under any Antitrust Laws or FDI Laws.
(ivf) Parent shall take (and shall cause its Equity Investors’ Affiliates (the “Interested Parties”) to take) any and all actions, or cause to be taken, all other actions and do, or cause to be done, any and/or all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case ensure that any review of Mars, Holdco or the Merger Subsby CFIUS and any CFIUS Approval will not impede, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities prevent or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable delay the Closing to occur as soon as reasonably possible (and in connection therewith avoid any event no later than the End Daterestraint pursuant to Section 6.01(a), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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.
(d) In furtherance and not in limitation of the covenants foregoing, Parent shall take (and shall cause Interested Parties to take) the following actions (and the Company shall, solely to the extent provided below and subject to Section 5.03(i) below, use its commercially reasonable efforts to cooperate with Parent in connection with the following actions) as necessary, proper or advisable to obtain the CFIUS Approval:
(i) with respect to the CFIUS Approval, (A) as promptly as reasonably practical, the Parent and Company shall file, or cause to be filed, with CFIUS a draft of the parties contained in this Section 5.6CFIUS Notice (the “Draft Notice”) as contemplated under 31 C.F.R. 800.401(f), if and (B) as promptly as practicable after receiving and incorporating any administrative feedback from CFIUS regarding the Draft Notice, Parent and Company shall file, or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened cause to be institutedfiled, the CFIUS Notice in accordance with the DPA;
(ii) challenging supplying, as promptly as reasonably practicable, any transaction certification, additional information, documents or other materials in respect of such notice or the transactions contemplated by this Agreement as violative of any Lawthat may be requested by CFIUS, each of Galaxy and Mars shall cooperate respectively, in all respects connection with its review process related to the CFIUS Approval; and
(iii) cooperating with each other and shall use their respective reasonable best efforts to contest and resist in connection with any such action filing and in connection with resolving any investigation or proceeding other inquiry of CFIUS or any other Governmental Authority related to the review processes for the CFIUS Approval, including by (A) allowing each other to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions to CFIUS, (B) promptly informing each other of any communication received by Parent or the Company, or given by Parent or the Company to, CFIUS by promptly providing copies to the other party of any such written communication, except for any exhibits to such communications providing the personal identifying information required by 31 C.F.R. §800.402(c)(6)(vi), information otherwise requested by CFIUS to remain confidential or information reasonably determined by Parent or the Company to be business confidential information, (C) permitting each other to review in advance any written or oral communication that Parent or the Company gives to CFIUS, and consult with the Company in advance of any meeting, telephone call or conference with CFIUS, and to the extent not prohibited by CFIUS, give each other the opportunity to attend and participate in any telephonic conferences, videoconferences or in-person meetings with CFIUS and (D) cooperating in good faith to minimize any mitigation conditions or restrictions that may be imposed by CFIUS.
(g) Parent shall not commit to, or agree with CFIUS or any other Governmental Authority in connection with the CFIUS Approval to, delay or impede the Transactions without the prior written consent of the Company.
(h) Notwithstanding anything herein to the contrary, Parent shall bear the cost of any filing fee payable to a Governmental Authority in connection with any filings made in relation to CFIUS.
(i) Notwithstanding anything to the contrary in this Agreement, the failure of the Company to comply with Section 5.03(f) shall not give rise to the failure of a condition precedent set forth in Section 6.02(b) or a right to terminate this Agreement pursuant to Section 7.01(c)(i) unless such failure is the result of a material and intentional breach by the Company of any provision of Section 5.03(f).
(j) Notwithstanding anything in this Agreement to the contrary, the foregoing Section 5.03(f) through (i), and not any other provisions, will solely govern the parties’ required efforts in connection with the CFIUS Approval.
(k) Until such time as the required CFIUS Approval has been obtained, each non-US person that has, as of the Closing, any direct or indirect interest in Parent (x) shall solely hold passive economic interests in Parent and (y) shall not have vacated, lifted, reversed or overturned any decree, judgment, injunction board representation rights or other order, whether temporary, preliminary governance or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Mergers and the other transactions contemplated by this Agreement.cons
Appears in 1 contract
Sources: Merger Agreement (Dayforce, Inc.)
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall use all reasonable best efforts to take promptly, or cause to be taken, all actions, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Mergers Merger and the other transactions contemplated by this Agreement, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, periods from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers Merger and the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided. In furtherance and not in limitation of the foregoing, however, that in no event shall Galaxy the Company and Parent agree not to extend any waiting period under the HSR Act or any of its Subsidiariesother applicable foreign or domestic competition, merger control, antitrust or Mars similar Law or enter into any of its Subsidiaries agreement with any Governmental Entity not to consummate the Merger or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreementAgreement, except with the prior written consent of the other party.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto Company and Parent shall (i) promptly, but in no event later than fifteen (15) 10 Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto)hereof, file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers Merger and the other transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; Act as promptly as practicable, (ii) use (andpromptly file any and all required notifications or applications under any other applicable foreign or domestic competition, in the case of Marsmerger control, Holdco antitrust or similar Law with respect to the Merger Subsand the other transactions contemplated by this Agreement, and use reasonable best efforts to receive required approvals or clearances and cause each the expiration or termination of their respective affiliates to useany applicable waiting period under such applicable foreign or domestic competition, merger control, antitrust or similar Law as promptly as practicable, (iii) use reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining obtain all such consents, permits, authorizations or approvals; , (iiiiv) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Regulatory Law (as hereinafter defined) or by such Governmental Entity; , and (ivv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Regulatory Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every any impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers and the other transactions contemplated by this Agreement.Governmental
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions set forth in of this Agreement, each of the parties hereto shall cooperate with the other parties hereto and use all their respective reasonable best efforts (unless, with respect to take promptlyany action, another standard of performance is expressly provided for herein) to promptly (i) take, or cause to be taken, all actions, and to do promptlydo, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable under applicable Laws to cause the conditions to Closing to be satisfied as promptly as reasonably practicable and to consummate and make effective effective, in the Mergers and most expeditious manner reasonably practicable, the other transactions contemplated by this AgreementTransactions, including (i) obtaining preparing and filing promptly and fully all documentation to effect all necessary actions or nonactionsfilings, waiversnotices, consentspetitions, clearancesstatements, approvalsregistrations, submissions of information, applications and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entityother documents, (ii) obtaining obtain all necessary approvals, consents, approvals registrations, waivers, permits, authorizations, orders and other confirmations from any Governmental Authority or waivers from third partiesparty necessary, proper or advisable to consummate the Transactions and (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers execute and the other transactions contemplated by this Agreement and (iv) the execution and delivery of deliver any additional instruments necessary to consummate the transactions contemplated by this Agreement; providedTransactions, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (andthan, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates clauses (i) through (iii), with respect to use) reasonable best efforts to cooperate with each filings, notices, petitions, statements, registrations, submissions of information, applications and other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearancesdocuments, approvals, and expirations or terminations of waiting periods are required to be obtained fromconsents, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consentsregistrations, permits, authorizations or approvals; (iiiand other confirmations relating to Antitrust Laws, which are addressed in Section 5.03(c) supply below. Notwithstanding anything to the contrary herein, prior to the Effective Time, no party hereto shall be required to, and the Company shall not without the consent of Parent, pay any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation consent or other jurisdiction similar fee, “profit-sharing” or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid similar payment or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and other consideration in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ form (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order increased rent or other order in any suit similar payments or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent commercial accommodation or agree to enter into any amendments, supplements or other modifications to (or waivers of) the existing terms of any Contract), or provide additional security (including a guaranty) or otherwise take assume or incur or agree to assume or incur any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sellliability, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business obtain any consent of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take Person (other than any of the actions described in clauses (iv)(xGovernmental Authority) or (y) above with respect to under any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective TimeContract.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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.
(db) In furtherance and not in limitation of the covenants foregoing, the Company and Parent shall each (i) take all action necessary to ensure that no Takeover Law is or becomes applicable to any of the parties contained in this Section 5.6Transactions and refrain from taking any actions that would cause the applicability of such Laws and (ii) if the restrictions of any Takeover Law become applicable to any of the Transactions, if any administrative or judicial take all action or proceeding, including any proceeding by a private party, is instituted (or threatened reasonably necessary to ensure that the Transactions may be instituted) challenging any transaction consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise lawfully minimize the effect of such Takeover Law on the Transactions.
(c) Each of the parties hereto agrees to make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions, as violative soon as practicable and advisable after the date of this Agreement, and to supply as promptly as reasonably practicable any Lawadditional information and documentary material that may be requested pursuant to the HSR Act. Further, each party hereto shall use its reasonable best efforts to avoid or eliminate each and every impediment and obtain all consents under any such Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority pursuant thereto, in each case with competent jurisdiction, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date. The Company shall not, without the express written consent of Galaxy Parent, take or agree to take any action relating to any objections asserted by any Governmental Authority with respect to the Transactions under any Antitrust Laws with respect to its business or operations. Parent shall (x) control the strategy for obtaining any approvals, consents, registrations, waivers, permits, authorizations, orders and Mars other confirmations from any Governmental Authority in connection with the Transactions and (y) control the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto; provided that Parent shall consult and cooperate with the Company with respect to such strategy, positions and requested regulatory action and consider the Company’s views in good faith.
(d) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, and (ii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “4(c) documents” and “4(d) documents” as these terms are used in the rules and regulations under the HSR Act. To the extent reasonably practicable, all telephone calls and meetings with a Governmental Authority regarding the Transactions shall use include representatives of Parent and the Company, and each party hereto must inform the other of any material communications with a Governmental Authority relating to any Antitrust Laws. Except as otherwise restricted by this Section 5.03(d), Parent and the Company or their outside counsel shall have the right to review in advance all written materials submitted or communications made to any Governmental Authority in connection with the Transactions, in each case to the extent such materials or communications are related to any Antitrust Laws; provided that that materials required to be provided pursuant to this Section 5.03(d) may be redacted (A) to remove references concerning the valuation of the Company, (B) as necessary to comply with contractual arrangements, (C) as necessary to comply with applicable Law, and (D) as necessary to address reasonable privilege or confidentiality concerns; provided, further that a party may reasonably designate any competitively sensitive material provided to another party under this Section 5.03(d) as “Outside Counsel Only”.
(e) Notwithstanding anything to the contrary contained in this Agreement, (i) neither Parent nor its Affiliates shall be required (and the Company shall not agree to any of the following without the express written consent of Parent): (A) to offer, agree or consent to, sell, divest, lease, license, transfer, dispose of or otherwise encumber or hold separate (before or after the Closing) any assets, licenses, operations, rights, product lines, businesses or interest therein of Parent or the Company or any of their respective reasonable best efforts Affiliates; (B) to contest and resist offer, agree or consent to any changes (including through a licensing arrangement) to or restriction on (including any access or other requirements), or other impairment of Parent’s ability to own or operate, any such action assets, licenses, operations, rights, product lines, businesses or proceeding and interests or Parent’s ability to have vacatedvote, liftedtransfer, reversed receive dividends or overturned any decree, judgment, injunction otherwise exercise full ownership rights with respect to the equity securities or other orderownership interests of the Company; or (C) to contest, whether temporarydefend or appeal any Action brought by a Governmental Authority against such party which seeks to prohibit, preliminary prevent or permanent, restrict the Transactions or (ii) to commit to or effect any action that is in effect and that prohibits, prevents or restricts not conditioned upon consummation of the Mergers and the other transactions contemplated by this AgreementMerger.
Appears in 1 contract
Sources: Merger Agreement (Soliton, Inc.)
Efforts. (a) Subject to From and after the terms date hereof, Purchaser and conditions set forth in this Agreement, each of the parties hereto Seller shall (and shall cause their respective Affiliate to) use all reasonable best efforts to take promptlytake, or cause to be taken, all actions, and to do promptlydo, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under any applicable Laws Law to consummate and make effective in the Mergers most expeditious manner possible the Transaction and the other transactions contemplated by this Agreement, including (i) obtaining the preparation and filing of all necessary actions or nonactionsforms, waivers, consents, clearances, approvals, registrations and expirations or terminations of waiting periods, including notices required to be filed to consummate the Galaxy Specified Approvals Transaction and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps other transactions contemplated by this Agreement as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entitysoon as practicable, (ii) obtaining all the execution and delivery of any additional instruments necessary consentsto consummate the Transaction and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement, approvals or waivers from third parties, and (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers Transaction and the other transactions contemplated by this Agreement. Without limiting the foregoing, but subject to Section 5.1(c), Purchaser and use reasonable best efforts Seller shall take all actions reasonably necessary to cause the expiration or termination of any applicable waiting periods under the HSR Act; obtain (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to and shall cooperate with each other in obtaining) any Regulatory Approvals (xwhich actions shall include furnishing all information reasonably required in connection with such Approvals) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained fromor made by Purchaser, any third parties Seller, the other Seller Entities or other Governmental the Purchased Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco Transaction or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any LawAgreement. Additionally, subject to Section 5.1(c), each of Galaxy Purchaser and Mars shall cooperate in all respects with each other and Seller shall use their respective reasonable best efforts to contest fulfill all conditions precedent to this Agreement (including those set forth in Section 7.1) and resist shall not take any such action after the date of this Agreement that would reasonably be expected to impair or proceeding and materially delay the obtaining of, or result in not obtaining, any Regulatory Approval necessary to have vacated, lifted, reversed be obtained prior to the Closing. To the extent that transfers of any Permits are required as a result of the execution of this Agreement or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts the consummation of the Mergers and Transaction or the other transactions contemplated by this Agreement, the parties hereto shall use reasonable best efforts to effect such transfers.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Cbre Group, Inc.)
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall use all reasonable best efforts to take promptly, or cause to be taken, all actions, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Mergers Merger and the other transactions contemplated by this AgreementAgreement as promptly as practicable after the date hereof and in any event prior to the End Date, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, approvals and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any Actions, lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers Merger and the other transactions contemplated by this Agreement and Agreement, (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this AgreementAgreement and (v) promptly, but in no event later than 15 Business Days after the date hereof, file or cause to be filed any and all required notifications, applications and other filings set forth on Section 5.7(a) of the Company Disclosure Letter; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars the Company or any of its Subsidiaries or Holdco be required to pay, or pay any non-de minimis amounts without the prior written consent of Parent, prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for or triggered by the consummation of the transactions contemplated by this Agreement under any contract or agreementagreement or otherwise.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto Company, Parent and its Subsidiaries and Merger Sub shall (i) promptly, but in no event later than fifteen (15) 15 Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto)hereof, file or cause to be filed any and all required Notification notification and Report Forms report forms under the HSR Act with respect to the Mergers Merger and the other transactions contemplated by this Agreement, and use all reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; , (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) all reasonable best efforts to cooperate with each other in (xA) determining whether any other filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities pursuant to any Antitrust Law in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (yB) timely promptly making all such filings and timely obtaining all such consents, permits, authorizations authorizations, waivers, clearances, approvals or approvals; expirations or terminations of waiting periods, (iii) supply or cause to be supplied to any Governmental Entity pursuant to any Antitrust Law as promptly as reasonably practicable any additional information or documents that may be requested pursuant to any such Antitrust Law or by such Governmental Entity; Entity pursuant to any Antitrust Law and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction authorities, or any other person Governmental Entity may assert under pursuant to any Antitrust Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Entity with respect to the Mergers Merger so as to enable the Closing to occur as soon promptly as reasonably possible practicable after the date hereof (and in any event no later than the End Date), including, without limitation, including (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture divestiture, license, hold separate or disposition of any and all of the share capital or other equity voting interest, assets (whether tangible or intangible), products or businesses of Mars, Holdco Parent or their respective its Subsidiaries or affiliates, or of Galaxy the Company or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco Parent’s or its Subsidiaries’ (including the Surviving Corporations’Corporation’s) or affiliates’ freedom of action with respect to, or its their ability to retain, one or more of its or its their Subsidiaries’ (including the Surviving Corporations’Corporation’s) assets (whether tangible or intangible), products, or businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which Action pursuant to any Antitrust Law that would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that with respect to the matters in this Section 5.7, Parent shall in any event control the strategy and process relating to obtaining all approvals under any Antitrust Law so long as Parent reasonably consults in advance with the Company and considers in good faith the views of the Company with respect thereto. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 5.7(b) or elsewhere in this Agreement shall require Parent or Merger Sub to take or agree to take any action with respect to any of their Affiliates (other than Parent, the Surviving Corporation and their Subsidiaries), including selling, divesting, conveying, holding separate or otherwise limiting its freedom of action with respect to any assets, rights, products, licenses, businesses, operations or interest therein of any such Affiliates (other than Parent, the Surviving Corporation and their Subsidiaries) or any direct or indirect portfolio companies of investment funds advised or managed by one or more Affiliates of Parent or Merger Sub (other than the Surviving Corporation and its Subsidiaries). Notwithstanding anything to the contrary in this Agreement, neither Galaxy the Company nor any of its Subsidiaries shall be required to become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to divest, license, hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets assets, operations or business of Galaxy the Company or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy or otherwise applicable to the Company or its Subsidiaries only from and after the Effective Time in the event that the Closing occurs; provided that none of Mars. Except as otherwise permitted under this Agreement, Holdco the Company, Parent and Merger Sub shall not (and shall cause their Subsidiaries not to) take or the Merger Subs shall be required agree to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action that would be material in relation reasonably likely to prevent or materially delay the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective TimeClosing.
(c) Subject The Company, Parent and Merger Sub shall cooperate and consult with each other in connection with the making of all registrations, filings, notifications, communications, submissions and any other actions pursuant to this Section 5.7(c), and, subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy the Company, on the one hand, and Mars Parent and Merger Sub, on the other hand, shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy the Company or MarsParent, as the case may be, or any of their respective SubsidiariesSubsidiaries or HSR Affiliates, from any third party and/or any Governmental Entity pursuant to any Antitrust Law with respect to such transactionstransactions and promptly notifying the other of any transaction or agreement to effect any transaction known to the Company, Parent, or their respective Subsidiaries or HSR Affiliates, which would reasonably be expected to, individually or in aggregate, prevent or materially delay or impede the ability of any of the parties hereto to obtain any necessary approvals or clearances of any Governmental Entity required for the transactions contemplated hereby; provided that the foregoing shall not apply to third-party hedge fund or asset managers in which KKR & Co. L.P. or any Affiliate thereof owns a minority stake. Galaxy Subject to applicable Law relating to the exchange of information, the Company, on the one hand, and Mars Parent and Merger Sub, on the other hand, shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed notifications or filings and any written communications or submissions, and with respect to any such notification, filing, written communication or submission, any documents submitted therewith to any Governmental EntityEntity pursuant to any Antitrust Law. Any materials shared under this Section 5.7(c) may be redacted (x) to remove references concerning the valuation of the businesses of the Company and its Subsidiaries, or proposals from third parties made prior to the date hereof with respect thereto, (y) as necessary to comply with contractual agreements and (z) as necessary to address reasonable privilege or confidentiality concerns, and may be provided on an outside counsel only basis. Each of Galaxy the Company, Parent and Mars Merger Sub agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it consults with the other party in advance and, to the extent not prohibited by such Governmental Entity, gives the other party (or its outside counsel, as appropriate) the opportunity to attend and participate.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.65.7, but subject to the other provisions of this Section 5.7, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy the Company, Parent and Mars Merger Sub shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such action Action or proceeding and to have vacated, lifted, reversed or overturned any Action, decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Mergers Merger and the other transactions contemplated by this Agreement.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each Each of the parties hereto Company, Holdings, Parent and Merger Sub shall use all reasonable its best efforts to take promptly(i) take, or cause to be taken, all actions, appropriate action and to do promptlydo, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws Law or otherwise to consummate and make effective the Mergers and the other transactions contemplated by this Agreement, including (i) obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) obtaining all necessary consents, approvals or waivers from third parties, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers Merger and the other transactions contemplated by this Agreement and as promptly as practicable, (ivii) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or take all such later date actions as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration or termination of any applicable waiting the notice periods under Competition Laws with respect to such transactions as promptly as practicable after the HSR Act; execution of this Agreement, (iiiii) use (andobtain from any Governmental Entities any consents, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consentslicenses, permits, authorizations, waivers, clearances, approvals, and expirations authorizations or terminations of waiting periods are orders required to be obtained fromby Holdings, Parent, Merger Sub or the Company, or any third parties of their respective Subsidiaries to effect the Closing by not later than three (3) Business Days prior to the Outside Date, and to avoid any action or other proceeding by any Governmental Entities Entity (including those in connection with the pre-merger notification obligations of the HSR Act and the PRC Regulatory Approvals), in connection with the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consentshereby, permitsincluding the Merger, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) takecause the satisfaction of all conditions set forth in Article 6, (v) defend and seek to prevent the initiation of all actions, lawsuits or cause other legal, regulatory or other Proceedings to be takenwhich it is a party challenging or affecting this Agreement or the consummation of the transactions contemplated by this Agreement, all other actions and doin each case until the issuance of a final, nonappealable Order, (vi) seek to have lifted or cause to be done, all other things necessary, proper rescinded any injunction or advisable restraining order that may adversely affect the ability of the parties to consummate and make effective the transactions contemplated hereby, including taking in each case until the issuance of a final, nonappealable Order, (andvii) as promptly as practicable, make or cause to be made all necessary applications and filings, make any other required submissions, and pay any fees due in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) connection therewith (all such further action as may fees to be necessary promptly solely the responsibility of, and to resolve such objectionsbe paid by, if anyParent and Merger Sub), as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to this Agreement and the transactions contemplated hereby, and to avoid or eliminate each and every impediment Merger required under any Law that may be asserted by any Governmental Entity with respect to the Mergers so Competition Laws and (viii) as to enable the Closing to occur as soon promptly as reasonably possible practicable after the date hereof, make all necessary filings (and in any event no later than file all required HSR Act notifications within ten (10) Business Days after the End Datedate hereof), includingand thereafter make any other required submissions, without limitationand pay any fees due in connection therewith, with respect to this Agreement and the Merger required under any other applicable Law. The Company, Holdings, Parent and Merger Sub shall cooperate with each other in connection with (A) preparing and filing the Proxy Statement and any Other Filings, (xB) proposingdetermining whether any action by or in respect of, negotiatingor filing with, committing any Governmental Entity is required, in connection with the consummation of the Merger and (C) seeking any such actions, consents, approvals or waivers or making any such filings. The Company, on the one hand, and Holdings and Parent, on the other hand, shall furnish to each other all information required for any application or other filing under the rules and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition regulations of any assets or businesses applicable Law in connection with the transactions contemplated by this Agreement. No party to this Agreement shall consent to any delay of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit at the freedom behest of Holdco any Governmental Entity without the prior written consent of the other parties to this Agreement. Holdings, Parent and Merger Sub shall not, except as may be consented to in advance in writing by the Company, directly or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, indirectly through one or more of its affiliates, take any action, including acquiring or its Subsidiaries’ (including the Surviving Corporations’) businessesmaking any investment in any corporation, product lines or assetspartnership, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order limited liability company or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy Person or any division or assets thereof, that would reasonably be expected to cause a delay in or jeopardize the satisfaction of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only the conditions contained in the event that the Closing occurs; provided that none of Mars, Holdco Article 6 or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers and the other transactions contemplated by this Agreement.Merger. Without limiting this
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto to this Agreement shall use all its reasonable best efforts to take promptly, or cause to be taken, all actions, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Mergers Merger and the other transactions contemplated by this Agreement, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third partiesparties required to be obtained in connection with the Merger, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers Merger and the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy Parent, the Company, or any of its Subsidiaries, or Mars or any of its their respective Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract Contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto Company, Parent and Merger Sub shall (i) promptly, but in no event later than fifteen ten (1510) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto)hereof, file any and all required Notification notification and Report Forms report forms under the HSR Act Act, and file as promptly as practicable any other filings and/or notifications under other applicable Antitrust Laws, with respect to the Mergers Merger and the other transactions contemplated by this Agreement, and use their reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; Act or any other Antitrust Law as soon as reasonably possible, (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby by this Agreement and (y) timely promptly making all such filings and timely obtaining all such consents, permits, authorizations or approvals; , (iii) supply to any Governmental Entity as promptly as practicable practicable, to the extent reasonable and advisable, any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; Entity and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated herebyby this Agreement, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the any Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person Authority may assert under any Antitrust Law (other than with respect to any Action by any stockholder related to this Agreement, the Merger or the other transactions contemplated by this Agreement) with respect to the transactions contemplated herebyby this Agreement, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers Merger so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, including (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets assets, product lines or businesses of Mars, Holdco Parent or their respective its Subsidiaries or affiliates, Affiliates or of Galaxy the Company or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco Parent or its Subsidiaries’ (including the Surviving Corporations’Corporation’s) or affiliatesAffiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’Corporation’s) or Affiliates’ businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order Order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date(each such action described in (x) and (y), a “Remedial Action”); provided provided, that neither Galaxy Parent nor the Company shall take a Remedial Action without the other’s consent (not to be unreasonably withheld, delayed or conditioned); provided, further, that neither the Company, Parent, nor any of its their respective Subsidiaries shall become subject to, or consent or agree to or otherwise take any action Remedial Action with respect to, any requirement, condition, understanding, agreement or order Order of a Governmental Authority Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets assets, product lines or business of Galaxy or any of its Subsidiariestheir respective businesses, unless such requirement, condition, understanding, agreement or order Order is binding on Galaxy only in conditioned upon the event that occurrence of the Closing occurs; provided that none Closing. Except as otherwise permitted under this Agreement (including Section 6.1(b) of Marsthe Company Disclosure Letter), Holdco the Company, Parent and Merger Sub shall not (and shall cause their Subsidiaries and Affiliates not to) take or the Merger Subs shall be required agree to take any action that would be reasonably likely to prevent or materially delay the Closing beyond the End Date. Without limiting their obligations under this Section 6.11, the Company and Parent shall not (and shall cause their Subsidiaries and Affiliates not to) agree to stay, toll or extend any applicable waiting period under any Antitrust Law, or withdraw or refile any filing under the HSR Act or any other Antitrust Law, without the prior written consent of the actions described in clauses other party (iv)(x) which consent shall not be unreasonably withheld, delayed or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Timeconditioned).
(c) Subject Without limiting in any respect each party’s obligations under this Section 6.11, each party shall exercise reasonable best efforts to applicable legal limitations cooperate (i) to direct, devise and implement the instructions strategy for obtaining any necessary approval of, for responding to any request from, inquiry or investigation by (including directing the timing, nature and substance of all such responses), and participate in all meetings and communications (including any negotiations) with, any Antitrust Authority that has authority to enforce any Antitrust Law and (ii) with respect to the defense and settlement of any litigation, action, suit, investigation or proceeding brought by or before any Governmental EntityEntity that has authority to enforce any Antitrust Law.
(d) Notwithstanding anything to the contrary in this Agreement, Galaxy and Mars including, but not limited to, Section 6.11(b), nothing herein shall keep each obligate Parent or the Company to propose, negotiate, commit to or effect any Remedial Action that, in the good-faith judgment of Parent or the Company, would result in the sale, divestiture, disposal, holding separate, or other apprised disposition of assets, contracts, businesses or product lines of the status of matters relating to the completion of the transactions contemplated therebyCompany, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, Parent or any of their respective Subsidiaries (including the Surviving Corporation and its Subsidiaries) generating, from any third party and/or any Governmental Entity in the aggregate, Revenues in an aggregate amount in excess of $10,000,000. “Revenues” as used in this Section 6.11(d), shall mean, with respect to such transactions. Galaxy and Mars shall permit counsel any asset, contract, business or product line, gross revenues associated therewith for the other party reasonable opportunity to review in advancetwelve months ended December 31, and consider in good faith 2019; provided, however, that the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, revenues associated with any Governmental Entity in connection with the proposed transactions unless it consults with the other party in advance andasset, to the extent business or product line that was not prohibited by fully utilized during such Governmental Entityperiod shall be calculated as if such asset, gives the other party the opportunity to attend and participatebusiness or product line was fully utilized.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers and the other transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Era Group Inc.)
Efforts. (a) Subject to Upon the terms and subject to the conditions set forth in this AgreementAgreement and subject to and in accordance with applicable Law, the Company and Parent shall each of the parties hereto shall use all their reasonable best efforts to take promptlypromptly (i) take, or to cause to be taken, all actions, and to do promptlydo, or to cause to be done, and to assist and cooperate with the other parties in doing, doing all things necessary, proper or advisable under applicable Laws Law or otherwise to consummate and make effective the Mergers and the other transactions contemplated by this Agreement, including (isubject to, and without intending to limit, Section 2.1(c)) obtaining all necessary actions by causing the Closing to occur on or nonactionsbefore August 31, 2011, (ii) obtain from any Governmental Entities any actions, non-actions, clearances, waivers, consents, clearances, approvals, permits or orders required to be obtained by the Company, Parent or any of their respective Subsidiaries in connection with the authorization, execution, delivery and expirations or terminations performance of waiting periods, including the Galaxy Specified Approvals this Agreement and the Mars Specified Approvalsconsummation of the transactions contemplated hereby, from Governmental Entities (iii) make all necessary registrations and filings, and thereafter make any other required submissions, with respect to this Agreement and the Merger required under (A) any applicable federal or state securities Laws, (B) the HSR Act and any Competition Laws of jurisdictions other than the United States and (C) any other applicable Law; provided, however, that the Company and Parent shall cooperate with each other in connection with the making of all necessary registrations such filings, including as set forth below and with respect to providing copies of all such filings and attachments to outside counsel for the taking of non-filing party, (iv) obtain all steps as may consents, registrations, approvals, permits and authorizations required, necessary, proper or advisable to be necessary to obtain an approval, clearance or waiver obtained from, or renewed with, any other Person, in each case in order to avoid an action consummate as promptly as practicable the transactions contemplated by this Agreement, (v) furnish all information required for any application or proceeding byother filing to be made pursuant to any applicable Law in connection with the transactions contemplated by this Agreement, (vi) keep the other party informed in all material respects of any material communication received by such party from, or given by such party to, any Governmental EntityEntity and of any material communication received or given in connection with any proceeding by a private party, in each case relating to the transactions contemplated by this Agreement, (iivii) obtaining all necessary consentspermit the other parties to review any material communication delivered to, approvals and consulting with the other party in advance of any meeting or waivers from third partiesconference with, any Governmental Entity relating to the transactions contemplated by this Agreement or in connection with any proceeding by a private party relating thereto, and giving the other party the opportunity to attend and participate in such meetings and conferences (to the extent permitted by such Governmental Entity or private party), (iiiviii) avoid the entry of, or have vacated or terminated, any decree, order, or judgment that would restrain, prevent or delay the Closing, including defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement hereby and (ivix) the execution execute and delivery of deliver any additional instruments reasonably necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event . No parties to this Agreement shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration consent to any third party for any consent or approval required for the consummation voluntary delay of the transactions contemplated by this Agreement under Closing at the behest of any contract or agreement.
(b) Subject to Governmental Entity without the terms and conditions herein provided and without limiting the foregoing, the parties hereto shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and consent of the other transactions contemplated by parties to this Agreement, and use reasonable best efforts which consent shall not be unreasonably withheld. Without limiting this Section 6.7, Parent agrees to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or to cause to be taken, any and all other actions steps and do, or cause to be done, make any and all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be undertakings necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Competition Law that may be asserted by any Governmental Entity with respect to the Mergers Merger so as to enable the Closing to occur as soon as reasonably possible (and in any event event, no later than the End Termination Date), including, without limitation, (x) including proposing, negotiating, committing to to, and effecting, by consent decree, hold separate order order, or otherwise, the sale, divestiture divestiture, licensing or disposition of any such assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy Parent (or its Subsidiaries and (ySubsidiaries) or the Company or otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco Parent’s or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its their ability to retain, one or more any of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assetsassets of Parent (or its Subsidiaries) or the Company, in each case case, as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order order, or other order in any suit or proceeding proceeding, which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective TimeClosing.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers and the other transactions contemplated by this Agreement.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall use all their respective reasonable best efforts to take promptly, or cause to be taken, all actions, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate the Offer and to consummate and make effective the Mergers Merger and the other transactions contemplated by this AgreementAgreement as soon as practicable, including (i) the preparing and obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, approvals and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Parent Approvals, from Governmental Entities and the preparing and making of all necessary registrations registrations, filings and filings notices and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action Action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) satisfying the Tender Offer Conditions and the conditions to the consummation of the Merger set forth in Article VII, (iv) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers Offer and the Merger and the other transactions contemplated by this Agreement and (ivv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars the Company or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any material fee, penalty or other consideration to any third party for any consent consents or approval approvals required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto Company, Parent and Merger Sub shall (i) promptly, but in no event later than fifteen ten (1510) Business Days Days, after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto)hereof, file any and all required Notification and Report Forms forms under the HSR Act with respect to the Mergers Offer, Merger and the other transactions contemplated by this Agreement, and use their reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; , (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely preparing and making all such filings and timely preparing and obtaining all such consents, permits, authorizations or approvals; , and (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations Law and the instructions of any Governmental Entity, Galaxy the Company and Mars Parent shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly (i) notifying the other party of any communication from any Governmental Entity in respect of any filing, investigation or inquiry concerning this Agreement, (ii) furnishing the other with copies of notices or other communications received by Galaxy the Company or MarsParent, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy The Company and Mars Parent shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, and incorporate the other party’s reasonable comments with respect to, any proposed written communication to any Governmental EntityEntity and/or any third party. Each of Galaxy the Company and Mars Parent agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.66.6, if any administrative or judicial action Action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy the Company and Mars Parent shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such action 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 Mergers Merger and the other transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Merger Agreement (X Rite Inc)
Efforts. (a) Subject to the terms and conditions set forth in of this Agreement, each of the parties hereto shall cooperate with the other parties hereto and use all (and shall cause their respective Subsidiaries and Affiliates to use) their respective reasonable best efforts (unless, with respect to take promptlyany action, another standard of performance is expressly provided for herein) to promptly (i) take, or cause to be taken, all actions, and to do promptlydo, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable under applicable Laws to cause the conditions to Closing to be satisfied as promptly as reasonably practicable and to consummate and make effective effective, in the Mergers and most expeditious manner reasonably practicable, the other transactions contemplated by this AgreementTransactions, including (i) obtaining preparing and filing promptly and fully all documentation to effect all necessary actions or nonactionsfilings, waiversnotices, consentspetitions, clearancesstatements, approvalsregistrations, submissions of information, applications and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entityother documents, (ii) obtaining obtain all necessary approvals, consents, approvals registrations, waivers, permits, authorizations, orders and other confirmations from any Governmental Authority or waivers from third partiesparty necessary, proper or advisable to consummate the Transactions and (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers execute and the other transactions contemplated by this Agreement and (iv) the execution and delivery of deliver any additional instruments necessary to consummate the transactions contemplated by this Agreement; providedTransactions, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (andthan, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates clauses (i) through (iii), with respect to use) reasonable best efforts to cooperate with each filings, notices, petitions, statements, registrations, submissions of information, applications and other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearancesdocuments, approvals, and expirations or terminations of waiting periods are required to be obtained fromconsents, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consentsregistrations, permits, authorizations or approvals; (iiiand other confirmations relating to Antitrust Laws, which are addressed in Section 5.03(c) supply below. Notwithstanding anything to the contrary herein, prior to the Effective Time, no party hereto shall be required to, and the Company shall not without the consent of Parent, pay any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation consent or other jurisdiction similar fee, “profit-sharing” or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid similar payment or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and other consideration in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ form (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order increased rent or other order in any suit similar payments or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent commercial accommodation or agree to enter into any amendments, supplements or other modifications to (or waivers of) the existing terms of any Contract), or provide additional security (including a guaranty) or otherwise take assume or incur or agree to assume or incur any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sellliability, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business obtain any consent of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take Person (other than any of the actions described in clauses (iv)(xGovernmental Authority) or (y) above with respect to under any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective TimeContract.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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.
(db) In furtherance and not in limitation of the covenants foregoing, the Company and Parent shall each (i) take all action necessary to ensure that no Takeover Law is or becomes applicable to any of the parties contained in this Section 5.6Transactions and refrain from taking any actions that would cause the applicability of such Laws and (ii) if the restrictions of any Takeover Law become applicable to any of the Transactions, if any administrative or judicial take all action or proceeding, including any proceeding by a private party, is instituted (or threatened reasonably necessary to ensure that the Transactions may be instituted) challenging any transaction consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise lawfully minimize the effect of such Takeover Law on the Transactions.
(c) Each of the parties hereto agrees to use its reasonable best efforts to make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions, as violative soon as practicable and advisable after the date of this Agreement, but in no event later than ten (10) Business Days after the date hereof, and to utilize reasonable best efforts to supply as promptly as practicable any Lawadditional information and documentary material that may be requested pursuant to the HSR Act. Parent shall pay all filing fees applicable for filings made pursuant to this Section. Further, each party hereto shall use its reasonable best efforts to eliminate each and every impediment and obtain all consents under the HSR Act or any other such Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority pursuant thereto, in each case with competent jurisdiction, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date. Without limiting the foregoing, Parent’s and Merger Sub’s reasonable best efforts shall include (i) committing to or effecting, by consent decree, hold separate order, trust, or otherwise, the divestiture, sale, license, transfer, assignment or other disposition of Galaxy assets or businesses of the Company or its Subsidiaries, (ii) terminating, relinquishing, modifying, transferring, assigning, restructuring, or waiving existing agreements, collaborations, relationships, ventures, contractual rights, obligations or other arrangements of the Company or its Subsidiaries, and Mars (iii) creating or consenting to create any relationships, ventures, contractual rights, obligations, behavioral undertakings or other arrangements of the Company or its Subsidiaries (and, in each case, to enter, or offer to enter, into agreements and stipulate to the entry of an order or decree or file appropriate applications with any Governmental Authority in connection with any of the foregoing and in the case of actions by or with respect to any of the Company or its businesses or assets, by consenting to such action by the Company) (each a “Divestiture Action”); provided, that Parent and Merger Sub shall not be required to take a Divestiture Action or any other action pursuant to this Section 5.03(c) (x) if such Divestiture Action or other action would reasonably be expected to have, individually or in the aggregate, a material adverse impact on, or as measured in comparison to, the expected benefits of the Transactions to Parent and Merger Sub and (y) unless such Divestiture Action or other action is necessary to consummate the Transactions prior to the Outside Date. In no event shall Parent, the Company or their respective Affiliates be required to proffer, consent to or agree to or effect any undertaking or other action relating to any objections asserted by any Governmental Authority with respect to the Transactions under any Antitrust Laws unless such action is conditioned upon the consummation of the Merger. Neither the Company nor its Subsidiaries shall, without the express written consent of Parent, take or agree to take any action relating to any objections asserted by any Governmental Authority with respect to the Transactions under any Antitrust Laws with respect to its business or operations, but, if requested by Parent in writing, the Company shall, and shall cause its Subsidiaries to, subject to this Section 5.03(c), take any such actions to obtain any of the governmental approvals contemplated in this Section 5.03(c).
(d) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission with a Governmental Authority in connection with the Transactions and shall use in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, and (ii) subject to applicable Laws relating to the exchange of information, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “4(c) documents” and “4(d) documents” as these terms are used in the rules and regulations under the HSR Act. To the extent reasonably practicable, all telephone calls and meetings with a Governmental Authority regarding the Transactions shall include representatives of Parent and the Company, and each party hereto must inform the other of any communications with a Governmental Authority relating to any Antitrust Laws. Except as otherwise restricted by this Section 5.03(d), Parent and the Company or their outside counsel shall have the right to review in advance all written materials submitted or communications made to any Governmental Authority in connection with the Transactions, in each case, to the extent such materials or communications are related to any Antitrust Laws; provided that materials required to be provided pursuant to this Section 5.03(d) may be redacted (A) to remove references concerning the valuation of the Company, (B) as necessary to comply with contractual arrangements, (C) as necessary to comply with applicable Law, and (D) as necessary to address reasonable best privilege or confidentiality concerns; provided further, that a party may reasonably designate any competitively sensitive material provided to another party under this Section 5.03(d) as “Outside Counsel Only”. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to its views and acting reasonably and in good faith, direct and control all aspects of each party hereto’s efforts to contest and resist gain regulatory clearance either before any Governmental Authority or in any action brought to enjoin the Transactions pursuant to any Antitrust Laws.
(e) Neither Parent nor Merger Sub shall, nor shall they permit their Subsidiaries or controlled Affiliates to, acquire or agree to acquire any rights, interests, assets, business, Person or division thereof (through acquisition, license, joint venture, collaboration or otherwise), if such action acquisition would reasonably be expected to materially increase the risk of not obtaining any applicable clearance, consent, approval or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction waiver under the HSR Act or other order, whether temporary, preliminary Antitrust Laws with respect to the Offer or permanent, that is in effect and that prohibits, prevents the Merger or restricts consummation of the Mergers and the other transactions contemplated by Transactions or otherwise not complying with the requirements of this AgreementSection.
Appears in 1 contract
Sources: Merger Agreement (MyoKardia, Inc.)
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each Each of the parties hereto shall use all its commercially reasonable best efforts to take promptlypromptly take, or cause to be taken, all actions, and to do promptlypromptly do, or cause to be done, and to assist and cooperate with the other parties in doing, all things reasonably necessary, proper or advisable under applicable Laws to consummate and make effective the Mergers Merger and the other transactions contemplated by this AgreementAgreement as promptly as practicable and in any event prior to the End Date, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entityin connection therewith, (ii) obtaining using its commercially reasonable efforts to obtain all necessary consents, approvals or waivers from third parties, and (iii) subject to Section 5.7(b), the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this AgreementMerger; provided, however, that in no event shall Galaxy the Company, Parent or any of its Subsidiaries, Merger Sub or Mars or any of its their respective Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to Parent and the terms and conditions herein provided and without limiting the foregoing, the parties hereto Company shall (i) promptly, but in no event later than fifteen (15) 20 Business Days after the date hereof hereof, file (or such later date as may cause to be mutually agreed in writing by the parties hereto), file filed) any and all required Notification pre-merger notification and Report Forms report forms under the HSR Act and the Competition Act with respect to the Mergers Merger. Parent and the other transactions contemplated by this Agreement, Company shall request early termination of any applicable waiting periods under such Antitrust Laws and shall respectively use their commercially reasonable best efforts to cause the expiration or termination of any applicable such waiting periods under periods, and shall supply to the HSR Act; Antitrust Division of the United States Department of Justice (ii“Antitrust Division”) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates United States Federal Trade Commission (“FTC”) or to usethe Canadian Competition Bureau (the “Competition Bureau”) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as reasonably practicable any additional information or documents that may be requested pursuant to any Law or by any of them.
(c) In furtherance of the covenants of the parties contained in this Section 5.10, but subject to the limitations set forth in Section 5.10(d), (i) if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging the Merger as violative of any Antitrust Law, each of the parties hereto shall use its commercially reasonable efforts to contest and resist any such Governmental Entity; action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction, or other order, whether temporary, preliminary or permanent, that results from such action or proceeding and that prohibits, prevents or restricts consummation of the Merger on or before the End Date and (ivii) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) Parent shall take all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon promptly as reasonably possible practicable (and in any event no later than the End Date), and including, without limitationin the case of Parent, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order order, or otherwise, to (i) sell, divest, dispose of or otherwise hold separate (including by establishing a trust or otherwise), any of the salebusinesses, divestiture or disposition of any assets or businesses properties of MarsParent, Holdco the Company, the Surviving Corporation or any of their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries Affiliates and (yii) otherwise taking take or committing commit to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ Parent’s freedom of action with respect to, or its ability to retainoperate and/or retain any of the businesses, one assets or more properties of its or its Subsidiaries’ (including Parent, the Company, the Surviving Corporations’Corporation or any of their respective Affiliates (the actions described in the foregoing clauses (i) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Dateand (ii) being “Divestiture Actions”); provided that neither Galaxy the Company nor any of its Subsidiaries shall be required to become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to divest, license, hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets assets, operations or business of Galaxy the Company or any of its SubsidiariesAffiliates, unless such requirement, condition, understanding, agreement or order is binding on Galaxy or otherwise applicable to the Company only from and after the Effective Time in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(cd) Subject Parent shall have the right (subject to compliance with Section 5.10(e) and its other obligations under this Section 5.10) to determine, direct and have control over the strategy and process by which the parties will seek required approvals under the Antitrust Laws and to control the defense or prosecution of any claims, actions or proceedings relating thereto, including all matters relating to any Divestiture Actions.
(e) Parent and the Company shall cooperate and consult with each other in connection with the making of all filings, notifications, communications, submissions, and any other actions pursuant to this Section 5.10, and, subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy Parent and Mars the Company shall keep each other apprised on a current basis of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy or MarsParent and the Company, as the case may be, or any of their respective SubsidiariesSubsidiaries or Affiliates, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy Subject to applicable Law relating to the exchange of information, Parent and Mars the Company shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any material proposed notifications or filings and any material written communication communications or submissions to any Governmental Entity; provided, however, that materials may be redacted (i) to remove references concerning the valuation of the businesses of Parent, the Company or their respective Subsidiaries, or proposals from third parties with respect thereto, (ii) as necessary to comply with contractual agreements, and (iii) as necessary to address reasonable privilege or confidentiality concerns. Each of Galaxy Parent and Mars agrees the Company agree not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it consults with the other party in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the a reasonable opportunity to attend and participate.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers and the other transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Merger Agreement (CST Brands, Inc.)
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall, and the Company shall cause each of its Subsidiaries to, and shall request each of KMP and the Company Joint Ventures to, use all its reasonable best efforts (subject to, and in accordance with, applicable Law) to take promptly, or to cause to be taken, all actions, and to do promptly, or to cause to be done, and to assist and to cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Mergers Merger and the other transactions contemplated by this Agreementhereby, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, consents and approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Company Approvals and the Mars Specified Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement hereby and (iv) the execution and delivery of any additional instruments reasonably necessary to consummate the transactions contemplated by this Agreementhereby; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars the Company or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty penalties or other consideration to any third party for to obtain any consent or approval required for the consummation of the transactions contemplated by this Agreement Merger under any contract Contract (other than de minimis amounts or agreementif Parent and Merger Sub have provided adequate assurance of repayment).
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto Company and Parent shall (i) promptly, but in no event later than fifteen (15) Business Days days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto)hereof, file make their respective filings and thereafter make any and all other required Notification and Report Forms submissions under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreementas promptly as reasonably practicable, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations waivers or terminations of waiting periods approvals are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining seeking all such consents, permits, authorizations or approvals; , including but not limited to approvals from the California Public Utilities Commission, the Colorado Public Utilities Commission, the Wyoming Public Services Commission, the Nebraska Public Utilities Commission and under the Investment Canada Act and the Competition Act (Canada) (the “Specified Regulatory Clearances”), (iii) supply use reasonable best efforts to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or to cause to be taken, all other actions and to do, or to cause to be done, all other things necessary, proper or advisable to consummate and make effective the Merger and the other transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as reasonably may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state or foreign antitrust enforcement authorities or competition authorities, other Governmental Entities in connection with the Specified Regulatory Clearances, or other state or federal regulatory authorities of any other nation or other jurisdiction or any other person may assert under any Regulatory Law (as hereinafter defined) with respect to the Merger and the other transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers Merger so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End DateDate (as hereinafter defined)), including, without limitation, (xiv) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated therebyby this Agreement, including to the extent permitted by Law promptly furnishing the other with true and complete copies of notices or other communications sent or received by Galaxy the Company or MarsParent, as the case may be, or any of their respective Subsidiaries, to or from any third party and/or any Governmental Entity with respect thereto, and permit the other to review in advance any proposed communication by such transactionsparty to any supervisory or Governmental Entity and (v) give the other reasonable notice of, and, to the extent permitted by such Governmental Entity, allow the other to attend and participate at any meeting with any Governmental Entity in respect of any filings, investigation or other inquiry or proceeding relating thereto. Galaxy Notwithstanding anything in this Agreement to the contrary, except as provided below, nothing contained in this Agreement shall be deemed to require Parent, any of its Subsidiaries, the Company (unless requested by Parent), or the Surviving Corporation or any of its Subsidiaries to take or agree to take any Action of Divestiture or Limitation. For purposes of this Agreement, an “Action of Divestiture or Limitation” shall mean (i) executing or carrying out agreements or submitting to the requirements of any Governmental Entity providing for a license, sale or other disposition of any material assets or businesses or material categories of assets or businesses of the Company and Mars its Subsidiaries or the holding separate of any material assets or businesses or Company capital stock or imposing or seeking to impose any material limitation on the ability of the Company or any of its Subsidiaries to own such assets or to acquire, hold or exercise full rights of ownership of the Company’s business or on the ability of the Company to conduct the business of the Company and its Subsidiaries, (ii) modification of a Company Permit or the terms of any Contract with any customer of the Company or any of its subsidiaries in a manner that would materially affect the Company or (iii) the imposition of any condition or limitation that would materially affect the Company on or in connection with any approval listed on Section 6.3(e) of the Parent Disclosure Letter (other than any such condition or limitation to which such approval is customarily subject) or that materially restricts the business of Parent or that materially restricts the business of any of the Affiliates of Parent. The Company and Parent shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate Notwithstanding anything in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it consults with the other party in advance and, this Agreement to the extent contrary, the Company shall, upon the request of Parent, agree to take any Action of Divestiture or Limitation so long as such Action of Divestiture or Limitation is binding on the Company only in the event the Closing occurs; provided, however, that the Company shall not prohibited by such Governmental Entitybe required to take, gives the other party the opportunity to attend and participate.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened cause to be instituted) challenging any transaction contemplated by this Agreement as violative of any Lawtaken, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such action with respect to KMP or proceeding KMR unless such action is approved by the Conflicts and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is Audit Committee thereof in effect and that prohibits, prevents or restricts consummation accordance with Section 6.9 of the Mergers and Partnership Agreement. Notwithstanding anything in this Agreement to the other transactions contemplated by this Agreementcontrary, the Company shall not undertake any Action of Divestiture or Limitation without the consent of Parent.
Appears in 1 contract
Sources: Merger Agreement (Kinder Morgan Inc)
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall will use all its reasonable best efforts promptly to take promptlytake, or cause to be taken, all actions, to file, or cause to be filed, all documents and to do promptlydo, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate the Offer and to consummate and make effective the Mergers Merger and the other transactions contemplated by this Agreement, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third partiesThird Parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and Offer, the Merger or any other transactions transaction contemplated by this Agreement and (iv) the execution and delivery of any additional instruments reasonably necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars the Company or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party Third Party, other than a Governmental Entity, for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreementagreement (other than de minimis amounts or if Parent and Merger Sub have provided adequate assurance of repayment). No party shall take any action that is intended or would reasonably be expected to, individually or in the aggregate, result in any of the Tender Offer Conditions or the conditions to the Merger set forth in Article VII not being satisfied or the satisfaction of those conditions being materially delayed.
(b) On or before January 18, 2008, each party hereto shall file, or cause to be filed by their respective “ultimate parent entities”, with the Federal Trade Commission and the Antitrust Division of the Department of Justice, any Notification and Report Forms and related material required to be filed by it under the HSR Act and the rules and regulations promulgated thereunder with respect to the transactions contemplated by this Agreement and thereafter shall promptly make any further filings pursuant thereto that may be necessary, proper or advisable and to respond on a timely basis to any requests for additional information made by either of such agencies. Parent shall pay the filing fees in connection with any such required filings. Upon and subject to the terms of this Section 6.6, Parent and the Company shall, and shall cause their respective Subsidiaries to use their respective reasonable efforts to obtain prompt termination of any waiting period under the HSR Act and prompt termination of any other requisite waiting period under any applicable Law.
(c) From the date of this Agreement through the date of termination of the required waiting period under the HSR Act, the Company, Parent and Merger Sub and their respective Subsidiaries shall not take any action that would reasonably be expected to hinder or delay the obtaining of clearance or the expiration of the applicable waiting period under the HSR Act or any other applicable antitrust Law.
(d) Subject to the terms and conditions herein provided and without limiting the foregoing, until the parties hereto Agreement is terminated in accordance with its terms the Company and Parent shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities Third Parties in connection with the execution and delivery of this Agreement and the consummation of and effectiveness of, the Offer, the Merger and the other transactions contemplated hereby and (y) timely making all such filings and timely obtaining seeking all such consents, permits, authorizations or approvals; , (iiiii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; Entity and (iviii) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate the Offer and to consummate and make effective the Merger and the other transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person Person may assert under any Law with respect to the Offer, the Merger and the other transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers Offer, the Merger and the other transactions contemplated hereby so as to enable the Expiration Date and the Closing to occur as soon as reasonably possible (and in any event no later than the End Date).
(e) Notwithstanding any terms contained in this Agreement to the contrary, includingMerger Sub, without limitation, Parent and its other Subsidiaries shall have no obligation to agree to (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any material assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy Parent or its Subsidiaries and or controlled affiliates or of the Company or its Subsidiaries or (y) otherwise taking take or committing commit to take any actions that after the Closing Date would limit the freedom of Holdco Parent or its Subsidiaries’ (including the Surviving Corporations’Corporation’s) or controlled affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ Subsidiaries (including the Surviving Corporations’Corporation’s) businesses, product lines lines, services or assets, in each case as may be required in order to avoid commencement of litigation seeking ; nor shall the entry of, Company or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or be required to consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy the Company or any of its Subsidiariesaffiliates, unless (but only if Parent grants its written consent in Parent’s sole and absolute discretion) such requirement, condition, understanding, agreement or order is binding on Galaxy the Company only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(cf) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy the Company and Mars Parent shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated therebyhereby, including to the extent permitted by Law and with the exception of the HSR filings and competitively sensitive documents promptly furnishing the other with copies of notices or other communications sent or received by Galaxy the Company or MarsParent, as the case may be, or any of their respective Subsidiaries, to or from any third party and/or any Governmental Entity Third Party with respect to such transactions. Galaxy Subject to applicable Law and Mars to the extent not prohibited by such Governmental Entity, the Company and Parent shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, advance any proposed written communication to any supervisory or Governmental EntityEntity with the exception of HSR filings and competitively sensitive documents. Each To the extent practicable, each of Galaxy the Company and Mars Parent agrees not to participate in any substantive meeting or discussion, either in person Person or by telephone, with any Governmental Entity in connection with the proposed such transactions unless it 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.
(dg) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.66.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any LawAgreement, each of Galaxy the Company and Mars Parent shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers Offer, the Merger and the other transactions contemplated by this Agreement. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 6.6 shall limit a party’s right to terminate this Agreement pursuant to Article VIII so long as such party has, prior to such termination, complied with its obligations under this Section 6.6.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto Parties shall use all (and shall cause their respective Subsidiaries and controlled Affiliates to use) their respective reasonable best efforts to take promptly, or cause to be taken, all actions, and to do promptly, or cause to be done, and to assist and cooperate with the other parties Parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Mergers Merger and the other transactions contemplated by this AgreementContemplated Transactions as promptly as practicable and in any event prior to the End Date, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, approvals and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Required Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action Action or proceeding Legal Proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any Actions, lawsuits or other legal proceedingsLegal Proceedings, whether judicial or administrative, challenging this Agreement or challenging, hindering, impeding, interfering with or delaying the consummation of the Mergers Merger and the other transactions contemplated Contemplated Transactions, including seeking to have any stay, temporary restraining order or injunction entered by this Agreement any court or other Governmental Entity in connection with the foregoing vacated or reversed and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this AgreementContemplated Transactions; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars the Company or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for or triggered by the consummation of the transactions contemplated by this Agreement Contemplated Transactions under any contract or agreementagreement or otherwise.
(b) Subject to the terms and conditions herein provided in this Agreement and without limiting the foregoing, the parties hereto Company and Parent shall (and shall cause their respective Subsidiaries and controlled Affiliates to) (i) promptly, but in no event later than fifteen twenty-five (1525) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto)hereof, file or cause to be filed any and all required Notification notification and Report Forms report forms under the HSR Act with respect to the Mergers Merger and the other transactions contemplated by this AgreementContemplated Transactions and (ii) as promptly as practicable after the date hereof, file or cause to be filed any and all required notifications (including draft notifications for the purpose of any prenotification procedures), filings and consents as necessary in connection with obtaining the Required Approvals (other than CFIUS, which is addressed in Section 6.7(h)). The Company and Parent shall (and shall cause their respective Subsidiaries and controlled Affiliates to) use all reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR ActAct and the other Required Approvals; (ii) use (andprovided, that neither the Company nor any of its Affiliates shall be required to become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order to sell, divest, license, hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets, operations or business of the Company or any of its Affiliates, unless such requirement, condition, understanding, agreement or order is binding on or otherwise applicable to the Company or its Affiliates only from and after the Effective Time in the case of Mars, Holdco or event that the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in Closing occurs. Parent may not (x) determining whether commit to or agree with any filings are required Governmental Entity to be made withvoluntarily stay, toll or consentsextend any applicable HSR Act waiting period or review period, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to enter into any timing agreement with any Governmental Entity as promptly as practicable Entity, or (z) pull and refile any additional information filing under the HSR Act or documents that may be requested pursuant to any other applicable Antitrust Law or by such Governmental Entity; Foreign Investment Law, without the Company’s prior written consent.
(c) In furtherance and not in limitation of the foregoing, Parent and the Company (ivand their respective Subsidiaries and controlled Affiliates) shall take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated herebyMerger and the other Contemplated Transactions, including by taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if anyand to avoid or eliminate each and every impediment, as in each case, under any Foreign Investment Law or Antitrust Law that may be asserted by the United States Federal Trade CommissionCommission (“FTC”), the Antitrust Division of the United States Department of JusticeJustice (“DOJ,” and together with the FTC, the “U.S. Antitrust Agencies”), state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction authorities, or any other person may assert under any Law Governmental Entity or Person with respect to the transactions contemplated hereby, Merger and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers other Contemplated Transactions so as to enable the Closing to occur as soon promptly as reasonably possible practicable after the date hereof (and in any event no later than the End Date), includingincluding (i) supplying or causing to be supplied to any Governmental Entity as promptly as practicable any and all additional information or documentary material that may be requested, without limitationand certifying compliance with such request (as applicable), under any Law or by such Governmental Entity, including pursuant to a Request for Additional Information and Documentary Material by the U.S. Antitrust Agencies (a “Second Request”), (xii) proposing, negotiating, committing to, effecting, agreeing to and effectingexecuting, by consent decree, settlement, undertaking, stipulations, hold separate order order, binding agreement with a third part(ies) or otherwise, the sale, divestiture divestiture, transfer, license, hold separate or disposition of any and all of the share capital or other equity voting interests, assets (whether tangible or businesses intangible), businesses, divisions, operations, products or product lines of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or Parent (including its Subsidiaries and Affiliates) and of the Company (yincluding its Subsidiaries), (iii) terminating, transferring or creating relationships, contractual rights or other obligations of Parent (including its Subsidiaries and Affiliates) and the Company (including its Subsidiaries), and (iv) otherwise taking or committing to take any actions or agree to any undertakings that after the Closing Date would limit the freedom of Holdco or Parent’s (including its Subsidiaries’ (including ’, Affiliates’, and the Surviving Corporations’Corporation’s) or affiliates’ freedom of action with respect to, or its their ability to retain, one or more of its or impose obligations on Parent’s (including its Subsidiaries’ ’, Affiliates’, and the Surviving Corporation’s) future operations with respect to, assets (whether tangible or intangible), businesses, divisions, personnel, operations, products or product lines or contractual or supply relationships of Parent (and its Subsidiaries and Affiliates, including the Surviving Corporations’Corporation) businesses, product lines or assetsthe Company (and its Subsidiaries), in each case so as may be required in order to satisfy the conditions to the Closing or to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which Legal Proceeding that would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End DateDate (each such action in the foregoing clauses (ii), (iii) and (iv), individually or collectively, a “Remedial Action”); provided provided, that the Company (and its Subsidiaries) shall not be permitted to offer or agree to or effectuate any Remedial Action without the prior written consent of Parent; provided, further, that neither Galaxy Parent nor any of its Subsidiaries Affiliates shall be required to become subject to, or consent or agree to or otherwise take any action with respect to, to any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its SubsidiariesRemedial Action, unless such requirement, condition, understanding, agreement or order Remedial Action is binding on Galaxy or otherwise applicable to Parent or its Affiliates only from and after the Effective Time in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(cd) Subject The Company, Parent and Merger Sub shall cooperate and consult with each other in connection with the making of all registrations, filings, notifications, communications, submissions and any other actions pursuant to this Section 6.7(d), and, subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy the Company, on the one hand, and Mars Parent and Merger Sub, on the other hand, shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated therebyContemplated Transactions, including promptly furnishing the other with copies of notices or other communications provided to or received by Galaxy or Marson behalf of the Company or Parent, as the case may be, or any of their respective SubsidiariesSubsidiaries or Affiliates, from any third party and/or any Governmental Entity with respect to such transactionsthe Contemplated Transactions. Galaxy Subject to applicable Law relating to the exchange of information, the Company, on the one hand, and Mars Parent and Merger Sub, on the other hand, shall permit counsel for the other party Party a reasonable opportunity to review in advance, and consider in good faith the views of the other party Party in connection with, any proposed notifications or filings and any written communications or submissions, and with respect to any such notification, filing, written communication or submission, any documents submitted therewith to any Governmental Entity; provided, that materials may be redacted (i) to remove references concerning the valuation of the businesses of the Company and its Subsidiaries, or proposals from third parties with respect thereto, (ii) as necessary to comply with contractual agreements and (iii) as necessary to address reasonable privilege or confidentiality concerns. The Parties, as they deem advisable and necessary, may designate any competitively sensitive material provided to the other under this Section 6.7(d) as “Outside Counsel Attorneys Only Material,” and such materials and the information contained therein shall be given only to outside counsel of the recipient and will not be disclosed to other Representatives of the recipient unless express written permission is obtained in advance from the source of the materials or its legal counsel. Each of Galaxy the Company, P▇▇▇▇▇ and Mars M▇▇▇▇▇ Sub agrees not to participate in any substantive meeting or discussion, either in person Person, by videoconference, or by telephone, with any Governmental Entity in connection with the proposed transactions unless it consults with the other party Party in advance and, to the extent not prohibited by such Governmental Entity, gives the other party Party the opportunity to attend and participate.
(de) Parent shall, in consultation with the Company, control the (i) strategy for obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals and expirations or terminations of waiting periods, including the Required Approvals (including CFIUS Approval), (ii) response to any request from, inquiry by, or investigation by (including the timing, nature and substance of all such responses) any Governmental Entity with respect to the Merger and the other Contemplated Transactions and (iii) strategy for the defense and settlement of any action brought by or before any Governmental Entity that has authority to enforce the applicable Antitrust Laws.
(f) In furtherance and not in limitation of the covenants of the parties Parties contained in this Section 5.66.7, if any administrative or judicial action or proceeding, including any proceeding by a Governmental Entity or by a private party, is instituted (or threatened to be instituted) challenging challenging, hindering, impeding, interfering with or delaying any transaction contemplated by this Agreement Contemplated Transactions, in each case, as violative of any Law, each of Galaxy the Company, Parent and Mars Merger Sub shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such action Action or proceeding Legal Proceeding and to have vacated, lifted, reversed or overturned any Action, decree, judgment, injunction or other orderOrder, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Mergers Merger and the other transactions Contemplated Transactions.
(g) Without limiting any other obligation under this Agreement, during the period from the date of this Agreement until the Closing Date or earlier termination of this Agreement in accordance with Article 8, each of Parent and the Company shall not, and shall cause its respective Subsidiaries and controlled Affiliates to not, acquire or agree to acquire any other Person or business or any material assets or properties of any other Person if such acquisition would reasonably be expected to materially impede, prevent or materially delay the Parties from obtaining any Required Approval in connection with the Contemplated Transactions, or to prevent or materially delay or materially impede the consummation of the Contemplated Transactions.
(h) Parent and the Company shall submit, or cause to be submitted, (i) as promptly as practicable following the execution of this Agreement, a draft of the joint notice to CFIUS (“CFIUS Notice”) contemplated under 31 C.F.R. § 800.501(g) with respect to the Contemplated Transactions, (ii) as promptly as practicable after receiving feedback from CFIUS regarding the draft CFIUS Notice referenced in clause (i), a formal CFIUS Notice as contemplated by 31 C.F.R. § 800.501(a), and (iii) as soon as possible (and in any event in accordance with applicable regulatory requirements) any other submissions that are formally requested by CFIUS to be made, or which Parent and the Company mutually agree should be made, in each case in connection with this Agreement and the Contemplated Transactions. Parent and the Company shall cooperate with each other in connection with any such filing or the provision of any such information (including, to the extent permitted by applicable law, (A) providing copies, or portions thereof, of all such documents to the non-filing party prior to filing and considering all reasonable additions, deletions or changes suggested in connection therewith; and (B) keeping each other timely apprised of the status and content of any material communications with, and any inquiries or requests for additional information or documentary material from, CFIUS) and in connection with resolving any investigation or other inquiry of any Governmental Entity under Section 721 with respect to any such filing or any such transaction; provided, that, notwithstanding anything to the contrary in this Agreement, no Person shall be required to share communications containing its confidential business information or information that is protected by attorney-client privilege.
(i) In furtherance of and not in limitation of the obligations contained in this Section 6.7, Parent and its controlled Affiliates shall take, or cause to be taken, all action necessary to receive CFIUS Approval so as to enable the Closing, including providing all such assurances as may be requested or required by CFIUS, including entering into a mitigation agreement, letter of assurance, national security agreement, proxy agreement, trust agreement or other similar arrangement or agreement, in relation to the business and assets of the Company; provided. that, notwithstanding anything herein to contrary, Parent and its Affiliates shall not be required, in order to obtain CFIUS Approval, to take any action (i) that would violate any Law applicable to Parent or its Affiliates or (ii) with respect to the assets or businesses of Parent or its Affiliates (other than the Acquired Companies) that would reasonably be expected to have a material adverse effect on Parent and its Affiliates (other than the Acquired Companies), taken as a whole (for this purpose, measured as if Parent and its Affiliates, taken as a whole, were the size of, and with the financial profile of, Parent, its Affiliates and the Acquired Companies, taken as a whole).
(j) For purposes of this Section 6.7, references to Affiliates (including controlled Affiliates) of Parent shall be deemed to include Guarantor and the Specified Parent Joint Ventures.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall use all its reasonable best efforts to take promptlytake, or to cause to be taken, all actions, to file, or cause to be filed, all documents and to do promptlydo, or to cause to be done, and to assist and to cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective effective, as promptly as practicable, the Mergers Merger and the other transactions contemplated by this Agreementhereby, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Company Approvals and the Mars Specified Parent Approvals, from Governmental Entities Authorities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance clearance, or waiver from, or to avoid an action or proceeding by, any Governmental EntityAuthorities, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the giving of notice, if required, under real property leases, (iv) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers Merger and the other transactions contemplated by this Agreement hereby and (ivv) the execution and delivery of any additional instruments reasonably necessary to consummate the transactions contemplated by this Agreement; providedhereby. In furtherance of the foregoing, howeverthe Company may, that but in no event shall Galaxy or any of its Subsidiaries, or Mars the Company or any of its Subsidiaries or Holdco be required to to, pay prior to the Effective Time any fee, penalty penalties or other consideration to any third party for to obtain any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject Merger up to a total of $10,000 without the terms and conditions herein provided and without limiting the foregoing, the parties prior consent of Parent. No party hereto shall (i) promptly, but in no event later than fifteen (15) Business Days after take any action that would reasonably be expected to prevent or materially delay or impede the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration or termination receipt of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco necessary actions or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizationsnonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods are required periods, including the Company Approvals and the Parent Approvals, from Governmental Authorities.
(b) Each of Parent and the Company shall, upon request by the other, furnish the other with all information concerning itself, its Subsidiaries, directors, officers and equityholders, and such other matters as may be reasonably necessary or advisable in connection with any statement, filing, notice or application made by or on behalf of Parent, the Company or any of their respective Subsidiaries to be obtained from, any third parties or other party and/or any Governmental Entities Authority in connection with the execution Merger and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) this Agreement. Subject to applicable legal limitations and the instructions of any Governmental EntityAuthority, Galaxy the Company and Mars Parent shall keep each other apprised of the status of matters relating to the completion of the Merger and the other transactions contemplated therebyby this Agreement, including promptly furnishing the other with copies of notices or other communications received by Galaxy the Company or MarsParent, as the case may be, or any of their respective SubsidiariesSubsidiaries or Affiliates, from any third party and/or any Governmental Entity Authority with respect to such transactionsMerger or transactions contemplated hereby. Galaxy The Company and Mars Parent shall permit provide counsel for the other party a reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental EntityAuthority. Each of Galaxy the Company and Mars Parent agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity Authority in connection with the proposed transactions unless it consults with the other party in advance and, to the extent not prohibited by such Governmental EntityAuthority, gives the other party the opportunity to attend and participate.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers and the other transactions contemplated by this Agreement.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions set forth in of this AgreementAgreement (including Section 6.5(e)), each of the parties hereto Tall Oak Parent and Summit shall cooperate with one another and use (and shall use all each of their respective commercially reasonable best efforts to take promptlycause, as applicable, the Target Companies, the Tall Oak Employers, and Summit’s Subsidiaries and controlled Affiliates to use) each of their respective commercially reasonable efforts to (i) take, or cause to be taken, all actions, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Mergers and the other transactions contemplated by this Agreement, including (i) obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) obtaining all necessary consents, approvals or waivers from third parties, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things things, necessary, proper or advisable to consummate and make effective cause the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates conditions to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur be satisfied as soon promptly as reasonably possible practicable (and in any event no later than the End Outside Date) and to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated hereby, including preparing and filing as promptly as practicable and fully all documentation to effect all necessary filings, Notifications, notices, petitions, statements, registrations, submissions of information, applications and other documents (including any required or recommended filings under applicable Antitrust Laws), including(ii) obtain as promptly as practicable (and in any event no later than the Outside Date) and maintain all approvals, without limitationconsents, (x) proposingclearances, negotiatingexpirations or terminations of waiting periods, committing registrations, Authorizations and other confirmations from any Governmental Authority or Third Party necessary, proper or advisable to and effectingconsummate the transactions contemplated hereby, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (yiii) otherwise taking defend any Proceedings challenging this Agreement or committing the consummation of the transactions contemplated hereby or seek to take have lifted or rescinded any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have Order adversely affecting the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any ability of the actions described in clauses (iv)(x) or (y) above with respect Parties to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of consummate the transactions contemplated therebyhereby (provided, including promptly furnishing however, that the other with copies Parties agree that the obligations of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity each Party with respect thereto shall not extend beyond the Outside Date); provided, further, however, that the Parties shall jointly determine all tactics and strategies relating to such transactions. Galaxy compliance with this Section 6.5(a)(iii), subject to each Party undertaking good faith consultations with and Mars shall permit counsel for the other party reasonable opportunity to review in advance, and consider considering in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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 participateParties.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers and the other transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Business Contribution Agreement (Summit Midstream Corp)
Efforts. (a) Subject to the terms and conditions set forth of this Agreement and except as otherwise expressly provided in this Agreement, each of the parties hereto Purchaser, Parent and Seller shall, and shall cause their respective Affiliates to, use all their respective reasonable best efforts to take promptlypromptly take, or cause to be taken, all actions, and to do promptlydo, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under any applicable Laws Law to consummate and make effective in the Mergers and most expeditious manner possible the other transactions contemplated by this Agreement, including (i) obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) obtaining all necessary consents, approvals or waivers from third parties, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers Transaction and the other transactions contemplated by this Agreement and the other Transaction Documents, including (ivi) the preparation and filing of all forms, registrations, Filings and notices required to be filed to satisfy the conditions precedent to this Agreement (including those set forth in Section 8.1) and to consummate the Transaction and the other transactions contemplated by this Agreement and the other Transaction Documents as soon as practicable and (ii) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to Transaction and the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under and the other Transaction Documents and to fully carry out the purposes of this Agreement and the other Transaction Documents. Without limiting the foregoing, except as otherwise expressly provided in this Agreement, Purchaser, Parent and Seller shall, and shall cause their respective Affiliates to, promptly take all actions reasonably necessary to obtain (and shall cooperate with each other in obtaining) any contract Regulatory Approvals (which actions shall include furnishing all information required in connection with such Regulatory Approvals) required to be obtained or agreementmade by Purchaser, Parent, Seller, the other Seller Entities or any of their respective Affiliates in connection with the Transaction or the other transactions contemplated by this Agreement and the other Transaction Documents. Additionally, Purchaser, Parent and Seller shall not, and shall cause their respective Affiliates not to, take any action after the date of this Agreement that would reasonably be expected to impair or materially delay the obtaining of, or result in not obtaining, any Regulatory Approval necessary to be obtained prior to the Closing.
(b) Prior to the Closing, the Purchaser Parties and Seller shall each keep the other apprised of the status of matters relating to the completion of the Transaction and the other transactions contemplated by this Agreement and the other Transaction Documents and consult and cooperate in all respects with each other, and consider in good faith the views of the other Parties with respect to obtaining all required Regulatory Approvals. In that regard, prior to the Closing, subject to the Confidentiality Agreements and Section 5.4, each Party shall promptly consult with the other Parties to provide any necessary information with respect to (and, in the case of correspondence, provide the other Parties (or its counsel) copies of) all Filings made by such Party or any of its Affiliates with any Governmental Entity or any other information supplied by such Party or any of its Affiliates to, or correspondence with, a Governmental Entity in connection with this Agreement, the Transaction and the other transactions contemplated by this Agreement and the other Transaction Documents. Subject to the terms Confidentiality Agreements and conditions herein provided Section 5.4, each Party shall promptly inform the other Parties, and without limiting if in writing, furnish the foregoingother Parties with copies of (or, in the parties hereto shall (icase of oral communications, advise the other Parties orally of) promptly, but in no event later than fifteen (15) Business Days after any communication received by such Party or any of its Affiliates or Representatives from any Governmental Entity regarding the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers Transaction and the other transactions contemplated by this Agreement, and use reasonable best efforts permit the other Parties to cause review and discuss in advance, and consider in good faith the expiration views of the other Parties in connection with, any proposed communication with any such Governmental Entity. If any Party or termination any Affiliate or Representative of such Party receives a request for additional information or documentary material from any applicable waiting periods under Governmental Entity with respect to the HSR Act; (ii) use (and, in the case of Mars, Holdco Transaction or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of transactions contemplated by this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all other Transaction Documents, then such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) takeParty will make, or cause to be takenmade, all promptly and after consultation with the other actions and doParties, an appropriate response in compliance with such request. None of Parent, Purchaser or Seller, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each any of their respective affiliates Affiliates or Representatives, shall participate in any meeting with any Governmental Entity in connection with this Agreement and the Transaction or the other transactions contemplated by this Agreement and the other Transaction Documents (or make oral submissions at meetings or in telephone or other conversations) unless it consults with the other Parties in advance and, to takethe extent not prohibited by such Governmental Entity, gives the other Parties the opportunity to attend and participate thereat. Subject to the Confidentiality Agreements and Section 5.4, each Party shall furnish the other Parties with copies of all correspondence and Filings (and memoranda setting forth the substance thereof) between it or any of its Affiliates or Representatives, on the one hand, and any Governmental Entity, on the other hand, with respect to this Agreement and the Transaction or the other transactions contemplated by this Agreement and the other Transaction Documents, and furnish the other Parties with such necessary information and reasonable assistance as the other Parties may reasonably request in connection with its preparation of Filings to any such Governmental Entity. Parent, Purchaser and Seller may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Agreement as “outside counsel only” (including documents filed pursuant to Item 4(c) and Item 4(d) of the HSR Notification and Report Form). Such materials and the information contained therein shall be given only to the outside legal counsel and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent, Purchaser or Seller, as the case may be). Materials provided pursuant to this Agreement may be redacted (i) to remove references concerning the valuation of or future plans for the Business or the Sale Process or any Party’s negotiating objectives, strategies or purchase price expectations, (ii) as necessary to comply with contractual obligations or applicable Law and (iii) as necessary to address reasonable privilege concerns.
(c) Without limiting the foregoing, Parent, Purchaser and Seller shall, and shall cause their respective Affiliates to, file, as promptly as practicable, but in any event no later than ten (10) days after the date of this Agreement, notifications under the HSR Act (the filing fees of any such Filings to be borne by the Purchaser Parties, except that Seller shall be responsible for any filing fees in connection with any Filings under the HSR Act relating to its acquisition of Parent Shares).
(d) In furtherance of the foregoing, and with the exceptions noted below, Purchaser shall, and shall cause its Affiliates to, promptly take all such further action as may be reasonably necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any applicable Law that may be asserted by any Governmental Entity with respect to the Mergers transactions contemplated hereby and by the other Transaction Documents and to resolve such objections, if any, as any Governmental Entity or any other Person may assert under any applicable Law with respect to the transactions contemplated hereby, so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than so as to enable the End Closing to occur prior to the Outside Date). Notwithstanding the foregoing, including, without limitation, the Purchaser Parties shall not be required to (xi) proposing, negotiating, committing proffer to and effectingagree to sell, by divest, lease, license, transfer, dispose of or otherwise encumber or hold separate, before or after the Closing, any assets, licenses, operations, rights, product lines, businesses or interests therein of the Business or of Parent or its Affiliates (and shall not be required to consent decree, hold separate order or otherwise, the to any sale, divestiture divestiture, lease, license, transfer, disposition or disposition other encumbering by the Seller Entities of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, Business or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor agreement by any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required Seller Entities to take any of the actions described in clauses foregoing actions), nor (iv)(xii) agree to make any changes (including through a licensing arrangement) or restriction on, or other impairment of Parent’s or Purchaser’s ability to own, retain, operate or grow (yby acquisition or otherwise), any such assets, licenses, product lines, businesses or interests therein or Parent’s or Purchaser’s ability to vote, transfer, receive dividends, or otherwise exercise full ownership rights with respect to ownership interests in the Business or of Parent, Purchaser or their Affiliates; provided, however, that, to the extent required to satisfy the condition set forth in Section 8.1(a), Purchaser and Parent shall take any of the foregoing actions set forth above in this Section 5.1(d) above with respect to any of their or Galaxy’s assets or businesses if such action would be material Business Brand(s) that in relation the aggregate contributed less than $50 million in aggregate revenue to the assets or business Business for the preceding twelve (12) month period ending on the date of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating this Agreement. Notwithstanding anything to the completion of contrary set forth in this Agreement, the transactions contemplated therebyPurchaser Parties shall not be required to defend, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Marscontest, as the case may beresist, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting Proceeding or discussioninvestigation, either in person whether judicial or by telephoneadministrative, with or to take any Governmental Entity in connection with the proposed transactions unless it 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.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other orderJudgment, whether temporary, preliminary or permanent, in connection with the transactions contemplated by this Agreement and the other Transaction Documents. Notwithstanding anything in this Agreement to the contrary, Seller and its Affiliates shall not be obligated to take or agree or commit to take any action (i) that is not conditioned on the Closing or (ii) that relates to any assets or businesses of Seller; and in effect no event shall Seller or any of its Affiliates be required to be the licensing, selling, divesting, leasing, transferring, disposing or encumbering party under any such agreements, and, in any case, Seller and that prohibitsits Affiliates shall have no direct or indirect obligation or Liability in respect of any such agreements, prevents transactions or restricts consummation relationships, including any indemnification obligations, for which Seller and its Affiliates are not fully indemnified by the Purchaser Parties.
(e) Each of the Mergers Purchaser Parties agrees to provide such security and assurances as to financial capability, resources and creditworthiness as may be reasonably requested by any Governmental Entity or other third party whose Approval is sought in connection with the Transaction and the other transactions contemplated by this Agreement and the other Transaction Documents. Whether or not the Transaction is consummated, the Purchaser Parties shall be responsible for all fees and payments (including filing fees and legal and professional fees) to any third party or any Governmental Entity that are incurred in order to obtain any Approvals pursuant to this Agreement, other than the fees of and payments to Seller’s legal and professional advisors and any filing fees that are the responsibility of Seller pursuant to Section 5.1(c) or any of the other Transaction Documents. Notwithstanding anything in this Agreement to the contrary, except for payment of filing fees required pursuant to Section 5.1(c) and as set forth and subject to the limitations in Section 5.1(d), Purchaser shall not under any circumstance be required to pay or commit to pay any amount or incur any obligation in favor of or offer or grant any accommodation (financial or otherwise, regardless of any provision to the contrary in the underlying Contract, including any requirements for the securing or posting of any bonds, letters of credit or similar instruments, or the furnishing of any guarantees) to any Person to obtain any Approval.
(f) Notwithstanding anything in this Agreement to the contrary, none of Seller, the other Seller Entities or any of their respective Affiliates shall under any circumstance be required to pay or commit to pay any amount or incur any obligation in favor of or offer or grant any accommodation (financial or otherwise, regardless of any provision to the contrary in the underlying Contract, including any requirements for the securing or posting of any bonds, letters of credit or similar instruments, or the furnishing of any guarantees) to any Person to obtain any Approval. None of Seller, the other Seller Entities or any of their respective Affiliates shall have any Liability whatsoever to the Purchaser Parties or any of their Affiliates arising out of or relating to the failure to obtain any Approvals that may be required in connection with the Transaction and the other transactions contemplated by this Agreement or the other Transaction Documents or because of the termination of any Contract or any default under, or acceleration or termination of or loss of any benefit under, any Contract or other Purchased Asset as a result thereof. The Purchaser Parties acknowledge that no representation, warranty or covenant of Seller contained herein shall be breached or deemed breached, and no condition to the Purchaser Parties’ obligations to consummate the transactions contemplated by this Agreement or the other Transaction Documents (other than as a result of the failure to satisfy a condition expressly set forth in Section 8.1(a) or Section 8.1(b)) shall be deemed not satisfied solely as a result of (i) the failure to obtain any Approval, (ii) any such termination, default, acceleration or loss of benefit, or (iii) any Proceeding commenced or threatened by or on behalf of any Person arising out of or relating to the failure to obtain any such Approval or any of the foregoing. For the avoidance of doubt, Seller’s and its Affiliates’ obligations under this Section 5.1 shall be subject in all respects to the applicable provisions of Section 2.10.
Appears in 1 contract
Efforts. (a) Subject to the terms The Company, Parent and conditions set forth in this Agreement, each of the parties hereto Merger Sub shall use all reasonable best efforts to take promptly(i) take, or cause to be taken, all actions, appropriate action and to do promptlydo, or cause to be done, and to assist and cooperate with the other parties in doing, all things reasonably necessary, proper or advisable under applicable Laws Law or otherwise to consummate and make effective the Mergers and the other transactions contemplated by this Agreement, including (i) obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) obtaining all necessary consents, approvals or waivers from third parties, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers Merger and the other transactions contemplated by this Agreement and as promptly as practicable, (ivii) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or take all such later date actions as may be mutually agreed in writing by the parties hereto), file any and all reasonably required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration of the notice periods under Competition Laws with respect to such transactions as promptly as practicable after the execution of this Agreement, (iii) obtain (A) from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations or termination orders required to be obtained by Parent, Merger Sub or the Company, or any of their respective Subsidiaries to effect the Closing by not later than three (3) Business Days prior to the Outside Date (including any applicable waiting periods such approvals required under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals), and expirations to avoid any action or terminations of waiting periods are required to be obtained from, proceeding by any third parties or other Governmental Entities Entity (including those in connection with the pre-merger notification obligations of the HSR Act) or any other Person, in connection with the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking the Merger and (andB) from any Third Party any consents or notices that are required to be obtained or made by Parent, in the case of Mars, Holdco Merger Sub or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may beCompany, or any of their respective Subsidiaries, in connection with the transactions contemplated by this Agreement only to the extent that Parent, Merger Sub and the Company reasonably determine, after consultation and cooperation with one another, that such consent or notice should be obtained or made; provided, that none of Parent, Merger Sub or the Company shall be required to incur any liabilities, expend any funds or pay any expenses or fees in connection with obtaining such Third Party consents, (iv) cause the satisfaction of all conditions set forth in Article 6, (v) defend and seek to prevent the initiation of all actions, lawsuits or other legal, regulatory or other Proceedings to which it is a party challenging or affecting this Agreement or the consummation of the transactions contemplated by this Agreement, in each case until the issuance of a final, nonappealable Order, (vi) seek to have lifted or rescinded any injunction or restraining order which may adversely affect the ability of the parties to consummate the transactions contemplated hereby, in each case until the issuance of a final, nonappealable Order, (vii) as promptly as practicable, make or cause to be made all necessary applications and filings (and in any event file all required HSR Act notifications within ten (10) Business Days after the date hereof), make any other required submissions, and pay any fees due in connection therewith (all such fees to be solely the responsibility of, and to be paid by, Parent and Merger Sub), with respect to this Agreement and the Merger required under any Competition Laws and the parties shall request early termination of the waiting period under the HSR Act in making such filings, (viii) prepare and file as promptly as practicable all documentation to effect all necessary applications, notices, petitions, filings, ruling requests, and other documents and to obtain as promptly as practicable all consents, waivers, licenses, orders, registrations, approvals, permits, rulings, authorizations and clearances necessary or advisable to be obtained from any third party and/or any Governmental Entity to consummate the Merger or the other transactions contemplated by this Agreement (collectively, the “Required Approvals”), (ix) take all reasonable steps as may be necessary to obtain all such consents and the Required Approvals, and (x) as promptly as reasonably practicable after the date hereof, make all necessary filings, and thereafter make any other required submissions, and pay any fees due in connection therewith, with respect to such transactionsthis Agreement and the Merger required under any other applicable Law. Galaxy and Mars No party to this Agreement shall permit counsel for consent to any delay of the Closing at the behest of any Governmental Entity without the consent of the other parties to this Agreement, which consent shall not be unreasonably withheld, delayed or conditioned. Parent and Merger Sub shall not, except as may be consented to in advance in writing by the Company, directly or indirectly through one or more of its affiliates, acquire any Person or material assets thereof or interest therein, if such acquisition would reasonably be expected to cause a material delay in or otherwise result in the failure to satisfy any of the conditions contained in Article 6 or the consummation of the Merger. Notwithstanding anything to the contrary contained in this Agreement, the parties hereby agree and acknowledge that neither this Section 5.4 nor the “reasonable best efforts” standard shall require, or be construed to require, the Company, Parent, Merger Sub or their respective Subsidiaries or affiliates to sell, dispose of or divest any assets or businesses, other than as would not be reasonably expected to have a material adverse effect on the Company or any Company Subsidiaries, taken as a whole, or Parent or any Parent Subsidiaries, taken as a whole, in order to obtain any required approval from any Governmental Entity.
(b) Without limiting the generality of anything contained in this Section 5.4, each party reasonable opportunity hereto shall (i) give the other parties prompt notice of the making or commencement of any request, inquiry, investigation, action or Proceeding by or before any Governmental Entity with respect to the Merger or any of the other transactions contemplated by this Agreement, (ii) keep the other parties notified as to the status of any such request, inquiry, investigation, action or other Proceeding, (iii) promptly notify the other parties of any oral or written communication to or from any Governmental Entity regarding the Merger or any of the other transactions contemplated by this Agreement and (iv) promptly provide to the other parties copies of any written communications received or provided by such party, or any of its Subsidiaries, from or to any Governmental Entity with respect to the Merger or any other transactions contemplated by this Agreement; provided, that Parent and the Company may, as each reasonably and in good ▇▇▇▇▇ ▇▇▇▇▇ advisable and necessary, designate any competitively sensitive material provided to the other under this section as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent or the Company, as the case may be) or its legal counsel. Each party hereto will consult and cooperate with the other parties with respect to and provide any necessary information and assistance as the other parties may reasonably request with respect to all notices, submissions, or filings made by such party with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement or any transactions contemplated by this Agreement and will permit the other parties to review and discuss in advance, advance and consider in good faith the views of the other party parties in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with the proposed transactions unless it 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.
(d) In furtherance and not in limitation Merger or any of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers and the other transactions contemplated by this Agreement. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation, action or other Proceeding, each party hereto will consult with the other parties in advance and give the other parties or their authorized representatives the opportunity to be present at each meeting or teleconference relating to such request, inquiry, investigation, action or other Proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation, action or other Proceeding.
(c) Nothing contained in this Agreement shall give Parent or Merger Sub, directly or indirectly, the right to control or direct the operations of the Company prior to the consummation of the Merger. Prior to the Effective Time, the Company shall exercise, consistent with the terms and conditions of this Agreement, complete unilateral control and supervision over its business operations.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall Each Party will use all commercially reasonable best efforts to take promptlytake, or to cause to be taken, all actions, actions and to do promptlydo, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws and regulations to consummate and make effective the Mergers and the other transactions contemplated by this Agreement, including (ia) obtaining all necessary actions cooperation in determining whether any action by or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver fromin respect of, or to avoid an action or proceeding byfiling with, any Governmental Entitygovernmental body, (ii) obtaining all necessary agency or other official authority is required, or any actions, consents, approvals or waivers are required to be obtained from third partiesparties to any material contracts, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or in connection with the consummation of the Mergers and the other transactions contemplated by this Agreement hereby; (b) cooperation in seeking and obtaining any such actions, consents, approvals, or waivers; and (ivc) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated hereby, and (d) the transmittal by this Agreement; providedSeller promptly after the Execution Date of all required notices necessary to seek waivers of preferential purchase rights and consents necessary for the transfer of the Properties to Buyer and/or a Permitted Assignee, howeverfollowed by commercially reasonable efforts until Closing to obtain such waivers and consents. Seller shall submit the form of all such notices to Buyer for prior approval, that in no event which shall Galaxy or any of its Subsidiariesnot be unreasonably withheld, conditioned, or Mars delayed, and Buyer shall promptly respond with any proposed revisions or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any feeadditions thereto. Promptly after Closing, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto shall Buyer shall: (i) promptly, but in no event later than fifteen (15) Business Days after record the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any Assignment and all required Notification state and Report Forms under federal assignments executed at the HSR Act with respect Closing in all applicable real property records and/or, if applicable, the records of all state and federal governmental authorities and Buyer shall provide to the Mergers and the other transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration or termination Seller copies of any applicable waiting periods under the HSR Actsuch recorded documents; (ii) use actively pursue the approval of all Customary Post-Closing Consents from the applicable governmental authorities; (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to useiii) reasonable best efforts to cooperate with each actively pursue all other in (x) determining whether any filings are consents and approvals that may be required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery assignment of this Agreement the Properties to Buyer and the consummation assumption of the transactions contemplated hereby rights, interests, obligations and (y) timely making all liabilities assumed by Buyer hereunder that have not been obtained prior to Closing, provided that Seller shall reasonably cooperate with Buyer in obtaining such filings other consents and timely obtaining all such consentsapprovals, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entityat Buyer’s sole cost and expense; and (iv) take, or cause to be taken, deliver all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law notices that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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.
(d) In furtherance and not in limitation assignment of the covenants Properties to Buyer and the assumption of the parties contained in this Section 5.6rights, if any administrative or judicial action or proceedinginterests, including any proceeding obligations and liabilities assumed by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers and the other transactions contemplated by this AgreementBuyer hereunder.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Diamondback Energy, Inc.)
Efforts. (a) Subject to the terms and conditions set forth in of this Agreement, each of the parties party hereto shall use all reasonable best efforts to take promptly(and, in the case of Purchaser, cause each of its subsidiaries and Affiliates (collectively, the “Purchaser Group”) to) take, or cause to be taken, all actions, actions and to do promptlydo, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws and regulations to cause the conditions to Closing to be satisfied as promptly as reasonably practicable and advisable (and in any event no later than the Outside Date) and consummate and make effective the Mergers Transaction and the other transactions contemplated by this AgreementAgreement as soon as reasonably practicable, including (i) obtaining preparing and filing as promptly as reasonably practicable and advisable all documentation to effect all necessary notices, reports and other filings, obtaining as promptly as reasonably practicable (and in any event no later than the Outside Date) all actions or nonactions, waivers, consents, clearancesregistrations, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals approvals, permits and the Mars Specified Approvals, authorizations necessary or advisable to be obtained from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance any third party or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) obtaining all necessary consents, approvals or waivers from third parties, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or Entity in order to consummate the consummation of the Mergers and the other transactions contemplated by this Agreement and (iv) the execution executing and delivery of delivering any additional instruments necessary to consummate the transactions contemplated by this Agreement. In furtherance and not in limitation of the foregoing, each party hereto agrees to make the appropriate foreign antitrust filings (or, for jurisdictions where submission of a draft prior to formal notification is appropriate, a draft thereof) listed in Section 5.1(a) of the Seller Disclosure Schedules with respect to the transactions contemplated hereby as promptly as practicable.
(b) Each of Purchaser, on the one hand, and Seller, on the other hand, shall, in connection with the efforts and obligations referenced in Section 5.1(a) to obtain all requisite approvals and authorizations or expiration of waiting periods for the transactions contemplated by this Agreement under any applicable Antitrust Law, use its respective best efforts to (i) consult and cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; provided(ii) subject to applicable Law, howeverfurnish to the other party as promptly as reasonably practicable all information required for any application or other filing to be made by the other party pursuant to any applicable Law in connection with the transactions contemplated by this Agreement; (iii) promptly notify the other party of any substantive communication received by such party from, or given by such party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other U.S. or foreign Governmental Entity and of any substantive communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby and, subject to applicable Law, furnish the other party promptly with copies of all correspondence, filings and communications between them and the FTC, the DOJ or any other Governmental Entity with respect to the transactions contemplated by this Agreement; (iv) respond as promptly as reasonably practicable to any inquiries received from, and supply as promptly as reasonably practicable any additional information or documentation that may be requested by the FTC, the DOJ or by any other Governmental Entity in respect of such registrations, declarations and filings or such transactions; and (v) permit the other party hereto to review any substantive communication given by it to, and consult with each other in advance, and consider in good faith the other party’s reasonable comments in connection with, any filing, notice, application, submission, communication, meeting or conference with, the FTC, the DOJ or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person; provided however that information may be shared with the other party in redacted form or on an “Outside-Counsel-Only” basis if the party producing the information determines in good faith that such procedures are reasonably necessary to prevent disclosure of privileged information, information about valuation of the transaction, or commercially or competitively sensitive information. For purposes of this Agreement, “Antitrust Law” means the ▇▇▇▇▇▇▇ Antitrust Act of 1890, the ▇▇▇▇▇▇▇ Antitrust Act of 1914, the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976 (the “HSR Act”), the Federal Trade Commission Act of 1914 and all other federal, state and foreign, if any, statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition. No party hereto shall independently participate in any substantive meeting or communication with any Governmental Entity in respect of any such filings, investigation or other inquiry relating to Section 5.1(a) or Section 5.1(b) without giving the other party hereto sufficient prior notice of the meeting and, to the extent permitted by such Governmental Entity, the opportunity to attend and/or participate in such substantive meeting or communication.
(c) Notwithstanding anything to the contrary set forth in this Agreement, and in furtherance and not in limitation of the foregoing, Purchaser shall, and shall cause each member of the Purchaser Group to, take any and all steps necessary, proper or advisable to (x) resolve, avoid, or eliminate impediments or objections, if any, that may be asserted with respect to the transactions contemplated by this Agreement under any Antitrust Law or (y) avoid the entry of, effect the dissolution of, and have vacated, modified, suspended, eliminated, lifted, reversed or overturned, any decree, decision, determination, order or judgment entered or issued, or that becomes reasonably foreseeable to be entered or issued, that would, or would reasonably be expected to, prevent, restrain, enjoin, prohibit, make unlawful, restrict or delay the consummation of the contemplated transactions, so as to enable the parties hereto to close the Transaction and the other transactions contemplated by this Agreement as expeditiously as reasonably practicable and advisable (but in no event shall Galaxy or later than the Outside Date), including (i) the defense through litigation on the merits of any of its Subsidiariesclaim asserted in any court, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty agency or other consideration proceeding by any Person or entity (including any Governmental Entity) seeking to any third party for any consent delay, restrain, prevent, enjoin or approval required for the otherwise prohibit consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (xA) proposing, negotiating, committing to, agreeing to and effecting, by consent decree, hold separate order orders or otherwise, the sale, divestiture lease, divesture, disposition, or disposition license (or holding separate pending such disposition) of any assets assets, operations, rights, product lines, licenses, properties, products, rights, services or businesses of Mars, Holdco Purchaser or their respective Subsidiaries or affiliatesany member of the Purchaser Group, or of Galaxy Company or its Subsidiaries and subsidiaries or any interest therein, (yB) otherwise taking or committing or agreeing to take any restrictions or actions that after the Closing Date would limit Purchaser’s, any member of the freedom of Holdco Purchaser Group’s, or the Company’s or its Subsidiaries’ (including the Surviving Corporations’) or affiliatessubsidiaries’ freedom of action or operations with respect to, or its or their ability to retain, one any assets, operations, rights, product lines, licenses, properties, products, rights, services or more businesses of its Purchaser, the Purchaser Group or the Company or its Subsidiaries’ subsidiaries or any interest or interests therein or (including C) agreeing to enter into, modify or terminate existing contractual relationships, contractual rights or contractual obligations, and promptly effecting the Surviving Corporations’) businessessale, lease, license, divestiture, disposal and holding separate of, assets, operations, rights, product lines lines, licenses, properties, products, rights, services or assetsbusinesses of Purchaser, in each case as may be required in order to avoid commencement of litigation seeking the Purchaser Group, or the Company or its subsidiaries or any interest or interests therein and the entry into agreements with, and submission to orders of, the relevant Governmental Entity giving effect thereto or to effect the dissolution ofsuch restrictions or actions (such sale, any injunctionlease, temporary restraining order license, defense through litigation, divestiture, disposal and holding separate or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(xi) or (yii), a “Regulatory Remedy”). Nothing in this Section 5.1(c) above with respect shall require Purchaser or Seller to effectuate or agree to effectuate any of their or Galaxy’s assets or businesses if Regulatory Remedy unless such action would be material in relation to Regulatory Remedy is conditioned upon the assets or business of Holdco, Mars, Galaxy Closing and their respective Subsidiaries, taken as a whole, at or after only effective following the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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 participateClosing.
(d) In furtherance and not Subject to the obligations under Section 5.1(c), in limitation of the covenants of the parties contained in this Section 5.6, if event that any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) by a Governmental Entity or private party challenging the Transaction or any other transaction contemplated by this Agreement as violative of Agreement, or any Lawother agreement contemplated hereby, (i) each of Galaxy Purchaser and Mars Seller shall, and Purchaser shall cause each member of the Purchaser Group to, cooperate in all respects with each other and shall use their its respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, modified, suspended, eliminated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prevents, restrains, enjoins, prohibits, prevents makes unlawful, restricts or restricts delays consummation of the Mergers transactions contemplated by this Agreement, and (ii) Purchaser and Seller must defend, at its own cost and expense, any action or actions, whether judicial or administrative, in connection with the transactions contemplated by this Agreement.
(e) Neither Purchaser nor any member of the Purchaser Group shall, and Purchaser shall cause each member of the Purchaser Group not to, take any action, including acquiring or agreeing to acquire, including by merging with or into or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business or any Person, corporation, partnership, association or other business organization or division thereof, or otherwise acquire or agree to acquire any assets, properties or equity interests, if the entering into of a definitive agreement relating to, or the consummation of such acquisition, merger or consolidation or such other action could reasonably be expected to: (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consents of any Governmental Entity necessary to consummate the Transaction and the other transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period; (ii) materially increase the risk of any Governmental Entity seeking or entering an order prohibiting the consummation of the Transaction or any of the other transactions contemplated by this Agreement; or (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise.
(f) Notwithstanding the foregoing and except as otherwise mutually agreed by the parties hereto (or any of their respective Affiliates) in a any separately executed clean team agreement, commercially and/or competitively sensitive information and materials of a party hereto will be provided to the other party hereto on an outside counsel-only basis while, to the extent feasible, making a version in which the commercial and/or competitively sensitive information has been redacted available to the other party hereto. Materials provided to the other party hereto or its counsel may be redacted to remove references (i) concerning the valuation of the Company Group, (ii) as necessary to comply with contractual arrangements, (iii) as necessary to address reasonable attorney-client privilege or confidentiality concerns, or (iv) other competitively sensitive material.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each of Parent and the parties hereto Company shall use all their reasonable best efforts to take promptly, or cause to be taken, all actions, and to do promptly, or cause to be done, and to assist and cooperate with the other parties one another in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Mergers Merger and the other transactions contemplated by this AgreementAgreement as promptly as practicable after the date hereof and in any event prior to the End Date, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, approvals and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Parent Approvals, from any Governmental Entities Entity and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action Action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third partiesany other Person, (iii) the defending of any lawsuits or other legal proceedingsActions, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers Merger and the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary to consummate the Merger and the other transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars the Company or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for or triggered by the consummation of the transactions contemplated by this Agreement under any contract Contract, agreement or otherwise. Neither the Company nor Parent shall, nor shall the Company or Parent permit any their respective Affiliates to (1) agree to extend any applicable waiting period pursuant to any Antitrust Law with respect to the transactions contemplated hereby or otherwise agree to not consummate the Merger or the transactions contemplated by this Agreement with any Governmental Entity or Person without the prior written consent of the other party (which consent shall not be unreasonably withheld or delayed) or (2) enter into or consummate any transaction, agreement, arrangement, or acquisition of any ownership interest or assets of any Person, the effect of which would reasonably be expected to materially impair, materially delay or prevent the satisfaction or obtaining of any approval or the expiration of any waiting period that is a condition to Closing.
(b) Subject to the terms and conditions herein provided and without limiting In furtherance of the foregoing, the parties hereto Company and Parent shall, and shall cause their respective Affiliates and the Equity Investors, as applicable, to, (i) promptly, but in no event later than fifteen ten (1510) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto)hereof, file or cause to be filed, any and all required Notification notification and Report Forms report forms under the HSR Act with respect to the Mergers Merger and the other transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use promptly, but in no event later than twenty (and20) Business Days after the date hereof, in or on such later date as mutually agreed to by the case of MarsCompany and Parent, Holdco file, or cause to be filed, with the Merger Subsappropriate Governmental Entity, cause each of their respective affiliates to useall filings, forms, registrations and notifications (or drafts thereof) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, filed to consummate the Merger and expirations or terminations of waiting periods are required to be obtained from, any third parties or the other Governmental Entities in connection with the execution and delivery of transactions contemplated by this Agreement under any applicable Antitrust Law and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply supply, or cause to any Governmental Entity be supplied, as promptly as practicable any additional information or documents documentary material that may be requested pursuant to any Law or by any Governmental Entity and, as applicable, to certify substantial compliance with any such request as promptly as practicable.
(c) The Company and Parent shall, and shall cause their respective Affiliates and Equity Investors, as applicable, to cooperate in submitting a draft joint voluntary notice to CFIUS with respect to the transactions contemplated by the Transaction Documents and this Agreement (the “Draft CFIUS Notice”) as soon as practicable after the date of this Agreement. After receipt of confirmation that CFIUS has no further comments or inquiries related to the Draft CFIUS Notice, the Company and Parent shall, and shall cause their respective Affiliates and Equity Investors, as applicable, to submit the CFIUS Notice within fifteen (15) Business Days of receipt of confirmation that CFIUS has no further comments on the Draft CFIUS Notice and to comply at the earliest practicable time, and in any event no later than required by CFIUS or any CFIUS member agency, with any request for additional information, documents or other materials, and will cooperate with each other in connection with both the Draft CFIUS Notice and the CFIUS Notice and in connection with resolving any investigation or other inquiry of CFIUS or any CFIUS member agency. The Company and Parent shall each promptly inform the other party of any oral communication with, and provide copies of written communications with, CFIUS or any CFIUS member agency regarding any such filings; provided, that no party shall be required to share with the other party communications containing its confidential business information if such confidential information is unrelated to the transactions contemplated by this Agreement. Notwithstanding anything in this Section 5.6 to the contrary, no Equity Investor and none of their Affiliates shall be required to supply any information or documentary material as set forth on Section 5.6 of the Parent Disclosure Letter to any Governmental Entity or any other Person with respect to the transactions contemplated hereby. If any such information or documentary material is requested by any Governmental Entity, Parent shall use reasonable best efforts to provide such information or documentary material and, in the absence of being able to provide such information or documentary material, shall enter into good faith discussions with the Equity Investor or Affiliate, as the case may be, the Company and the Governmental Entity to provide other information or documentary material that attempts to address the topic(s) of inquiry being made by such Governmental Entity; and .
(ivd) Notwithstanding anything to the contrary set forth in this Agreement (but subject to the second to last sentence of Section 5.6(c)), Parent shall take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated herebyresolve any objections asserted by CFIUS, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation Governmental Entity or other jurisdiction or any other person may assert under any Law Person with respect to the Merger or the transactions contemplated hereby, hereby so as to enable the Closing to occur as promptly as practicable after the date hereof (and in any event no later than the End Date) and to avoid or eliminate each and every impediment under any Law Law, including any injunction, temporary restraining order or other Action, that may be asserted or that is in force by any Governmental Entity with respect to or other Person that would or has the Mergers so as to enable effect of preventing or delaying the Closing to occur as soon as reasonably possible Closing, including (and in any event no later than the End Date), including, without limitation, (xi) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture divestiture, license, hold separate or disposition any other disposition, including discontinuation, of any and all of the share capital or other equity voting interest, assets (whether tangible or businesses intangible), businesses, divisions, operations, products or product lines of MarsParent, Holdco Company or any of their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (yii) otherwise taking or committing to take any actions action or agree to any undertaking that after the Closing Date would limit the freedom of Holdco Parent’s or its Subsidiaries’ (including the Surviving Corporations’Corporation’s) or affiliatescontrolled Affiliates’ freedom of action with respect to, to or its their ability to retain, one or more of its impose obligations on Parent’s or its Subsidiaries’ (including the Surviving Corporations’Corporation’s) or controlled Affiliates’ future operations with respect to, one or more of their Subsidiaries’ (including the Surviving Corporation’s), share capital or equity interests, assets (whether tangible or intangible), businesses, divisions, operations, products or product lines lines; provided, however, that in no event shall the Company or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall be required to become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, such actions in clauses (i) and (ii) unless such requirement, condition, understandingundertaking, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation otherwise applicable to the assets or business of Holdco, Mars, Galaxy Company only from and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(ce) Subject The Company, Parent and Merger Sub shall, and shall cause their respective Affiliates to, cooperate and consult with each other in good faith with respect to the making of all registrations, filings, notifications, communications, submissions and any other actions pursuant to Section 5.6, so as to enable the Closing to occur as promptly as practicable after the date hereof (and in any event no later than the End Date). In furtherance of the foregoing, and subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy the Company, on the one hand, and Mars Parent and Merger Sub, on the other hand, shall keep each other apprised of the status of matters relating to the completion of the Merger and the transactions contemplated therebyby this Agreement, including promptly furnishing the other with copies of notices or other communications received by Galaxy the Company or MarsParent, as the case may be, or any of their respective SubsidiariesSubsidiaries or Affiliates, from any third party and/or any Governmental Entity with respect to such transactionsthe Merger and the transactions contemplated by this Agreement. Galaxy Subject to applicable Law relating to the exchange of information, the Company, on the one hand, and Mars Parent and Merger Sub, on the other hand, shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written notifications or filings and any communications or submissions, and with respect to any such notification, filing, communication or submission, submitted therewith to any Governmental Entity; provided, however, that materials may be redacted (x) to remove references concerning the valuation of the businesses of the Company and its Subsidiaries, or proposals from third parties with respect thereto, (y) as necessary to comply with contractual agreements and (z) as necessary to address reasonable privilege or confidentiality concerns. Each of Galaxy the Company, ▇▇▇▇▇▇ and Mars ▇▇▇▇▇▇ Sub agrees not to to, and shall not permit any of their respective Affiliates to, participate in any substantive meeting or discussion, either in person Person, by videoconference, by telephone or by telephoneotherwise, with any Governmental Entity in connection with the proposed Merger or the transactions contemplated by this Agreement unless it 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 participateparticipate thereat. Subject to the foregoing and Parent’s obligations as set forth in this Section 5.6, Parent shall control and lead the strategy and content of any substantive communications with any Governmental Entity with respect to obtaining approval or expiration of any waiting period under the HSR Act or any applicable Antitrust Laws.
(df) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging the Merger or any transaction contemplated by this Agreement as violative of any Law, each of Galaxy the Company, Parent and Mars Merger Sub shall, and shall cause their respective Affiliates to, cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such action Action or proceeding and to have vacated, lifted, reversed or overturned any Action, decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Mergers Merger and the other transactions contemplated by this Agreement.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall use (and shall cause their respective Subsidiaries and Affiliates to use) all reasonable best efforts to take promptly, or cause to be taken, all actions, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Mergers Merger and the other transactions contemplated by this AgreementAgreement prior to the End Date, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, approvals and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any Actions, lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers Merger and the other transactions contemplated by this Agreement Agreement, including seeking to have any stay, temporary restraining order or injunction entered by any court or other Governmental Entity vacated or reversed and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars the Company or any of its Subsidiaries or Holdco be required (nor, without the prior written consent of Parent, shall the Company and its Subsidiaries be permitted) to pay prior to the Effective Time any fee, penalty or other consideration (other than customary filing and notification fees with Governmental Entities and other nominal amounts) to any third party for any consent or approval required for or triggered by the consummation of the transactions contemplated by this Agreement under any contract or agreementagreement or otherwise.
(b) Subject to the terms and conditions herein provided in this Agreement and without limiting the foregoing, the parties hereto Company and Parent shall (and shall cause their respective Subsidiaries and Affiliates to) (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto)hereof, file or cause to be filed any and all required Notification notification and Report Forms report forms under the HSR Act with respect to the Mergers Merger and the other transactions contemplated by this Agreement, and use all reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; , (ii) use (and, in the case of Mars, Holdco supply or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply supplied to any Governmental Entity as promptly as practicable any additional information or documents documentary material that may be requested pursuant to any Law or by such Governmental Entity; Entity and (iviii) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated herebyby this Agreement, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction authorities, or any other person Governmental Entity or Person may assert under any Law with respect to the Merger and the other transactions contemplated herebyby this Agreement, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers Merger so as to enable the Closing to occur as soon promptly as reasonably possible practicable after the date hereof (and in any event no later than the End Date), including, without limitation, including (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture divestiture, license, hold separate or disposition of any and all of the share capital or other equity voting interest, assets (whether tangible or businesses intangible), businesses, divisions, operations, products or product lines of Mars, Holdco Parent or their respective its Subsidiaries or affiliates, Affiliates or of Galaxy the Company or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco Parent’s or its Subsidiaries’ (including the Surviving Corporations’Corporation’s) or affiliatesAffiliates’ freedom of action with respect to, or its their ability to retain, one or more of its or its their Subsidiaries’ (including the Surviving Corporations’) Corporation’s), assets (whether tangible or intangible), businesses, divisions, operations, products or product lines or assetslines, in each case as may be required in order to satisfy the conditions to Closing or to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which Action that would otherwise have the effect of preventing the Closing, materially delaying the Closing in any material respect or delaying the Closing beyond the End DateDate (individually or collectively, a “Remedial Action”); provided provided, that neither Galaxy the Company, Parent nor any of its their respective Subsidiaries shall be required to become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to divest, license, hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets (whether tangible or business intangible), businesses, divisions, operations, products or product lines of Galaxy the Company, Parent or any of its Subsidiariestheir respective Affiliates, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in conditioned upon the event that occurrence of the Closing occursor is or becomes effective on or after the Closing; provided that none further that, notwithstanding anything in this Agreement to the contrary, nothing in this Section 5.7 or any other provision of Mars, Holdco this Agreement shall require any of Parent or the Merger Subs shall be required any of its Affiliates to take (A) waive any of the actions described conditions set forth in clauses (iv)(x) Article 6 as they apply to Parent or Merger Sub or (yB) above agree or otherwise be required to, take any action, including any Remedial Action that, individually or in the aggregate together with respect one or more other Remedial Actions, would reasonably be expected to any have a material adverse effect on the business, operations or financial condition of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of HoldcoParent, Marsthe Company, Galaxy and their respective Subsidiaries, taken as a wholewhole and after giving effect to the Merger (it being understood that, at for purposes of determining pursuant to this clause (B) whether such Remedial Action would reasonably be expected to have such a material adverse effect (aa) Parent, the Company and their respective Subsidiaries, taken as a whole and after giving effect to the Merger, shall be deemed to be the same size as the Company and its Subsidiaries, taken as a whole and prior to giving effect to the Merger, and (bb) any proceeds received, or after expected to be received, from effecting any Remedial Action shall not be taken into consideration). Without limiting Parent’s obligations under this Section 5.7, in no event shall the Effective TimeCompany propose, negotiate, effect or agree to any Remedial Action without the prior written consent of Parent. Except as otherwise permitted under this Agreement, the Company, Parent and Merger Sub shall not (and shall cause their Subsidiaries and Affiliates not to) make, or agree to make, any acquisition, or knowingly take, or agree to take, any other action outside the ordinary course of business consistent with past practice, in each case, that would be reasonably likely to prevent or materially delay the Closing.
(c) Subject The Company, Parent and Merger Sub shall cooperate and consult with each other in connection with the making of all registrations, filings, notifications, communications, submissions and any other actions pursuant to this Section 5.7(c), and, subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy the Company, on the one hand, and Mars Parent and Merger Sub, on the other hand, shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated therebyby this Agreement, including promptly furnishing the other with copies of notices or other communications received by Galaxy the Company or MarsParent, as the case may be, or any of their respective SubsidiariesSubsidiaries or Affiliates, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy Subject to applicable Law relating to the exchange of information, the Company, on the one hand, and Mars Parent and Merger Sub, on the other hand, shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed notifications or filings and any written communications or submissions, and with respect to any such notification, filing, written communication or submission, any documents submitted therewith to any Governmental Entity; provided, however, that materials may be redacted (x) to remove references concerning the valuation of the businesses of the Company and its Subsidiaries, or proposals from third parties with respect thereto, (y) as necessary to comply with contractual agreements and (z) as necessary to address reasonable privilege or confidentiality concerns. The parties, as they deem advisable and necessary, may designate any competitively sensitive material provided to the other under this Section 5.7(c) as “Antitrust Counsel Only Material,” and such materials and the information contained therein shall be given only to outside antitrust counsel of the recipient and will not be disclosed to other Representatives of the recipient unless express written permission is obtained in advance from the source of the materials or its legal counsel. Each of Galaxy the Company, ▇▇▇▇▇▇ and Mars ▇▇▇▇▇▇ Sub agrees not to participate in any substantive meeting or discussion, either in person Person, by videoconference, or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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.
(d) The Company and Parent shall jointly develop and cooperate with one another with respect to developing the (i) strategy and timing for obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals and expirations or terminations of waiting periods, including the Specified Approvals and the Parent Approvals, (ii) response to any request from, inquiry by, or investigation by (including the timing, nature and substance of all such responses) any Governmental Entity with respect to the Merger and the other transactions contemplated by this Agreement and (iii) strategy for the defense and settlement of any action brought by or before any Governmental Entity that has authority to enforce the applicable antitrust Laws; provided, in the event of any conflict or disagreement between the Company and Parent with respect to clauses (i), (ii) and (iii) above, Parent shall have the right to direct the matter that is the cause of any such conflict or disagreement, acting reasonably and following consultation with the Company and after considering in good faith all comments and advice of the Company (and its counsel).
(e) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.65.7, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, subject to the limitations set forth in the other provisions of this Section 5.7 (including Section 5.7(b)), each of Galaxy the Company, Parent and Mars Merger Sub shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such action Action or proceeding and to have vacated, lifted, reversed or overturned any Action, decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Mergers Merger and the other transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Aerojet Rocketdyne Holdings, Inc.)
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall use all its reasonable best efforts to take promptlytake, or to cause to be taken, all actions, to file, or cause to be filed, all documents and to do promptlydo, or to cause to be done, and to assist and to cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective effective, as promptly as practicable, the Mergers Offer and Merger and the other transactions contemplated by this Agreementhereby, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Company Approvals and the Mars Specified Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance clearance, or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the giving of notice, if required, under real property leases, (iv) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers Offer or the Merger and the other transactions contemplated by this Agreement hereby and (ivv) the execution and delivery of any additional instruments reasonably necessary to consummate the transactions contemplated by this Agreementhereby; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars the Company or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time Board Appointment Date any fee, penalty penalties or other consideration to any third party for to obtain any consent or approval required for the consummation of the transactions contemplated by this Agreement under Offer or the Merger. No party hereto shall take any contract action that would reasonably be expected to prevent or agreementmaterially delay or impede the receipt of any necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Company Approvals and the Parent Approvals, from Governmental Entities.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto Company and Parent shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto)5:30 p.m. Eastern Daylight Savings time on July 28, 2009, file any and all required Notification and Report Forms required under the HSR Act with respect to the Mergers Offer, the Merger and the other transactions contemplated by this Agreementhereby, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; , (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; , (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents documentary material that may be requested pursuant to any Regulatory Law or by such Governmental Entity; , and (iv) use reasonable best efforts to take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the Offer, the Merger and the other transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Each of Parent and the Company shall, upon request by the other, furnish the other with all information concerning itself, its Subsidiaries, directors, officers and stockholders and such other matters as may be reasonably necessary or advisable in connection with any statement, filing, notice or application made by or on behalf of Parent, the Company or any of their respective Subsidiaries to any third party and/or any Governmental Entity in A-30 connection with the Merger and the transactions contemplated by this Agreement. Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy the Company and Mars Parent shall keep each other apprised of the status of matters relating to the completion of the Offer, the Merger and the other transactions contemplated therebyby this Agreement, including promptly furnishing the other with copies of notices or other communications received by Galaxy the Company or MarsParent, as the case may be, or any of their respective SubsidiariesSubsidiaries or Affiliates, from any third party and/or any Governmental Entity with respect to such Merger or transactions. Galaxy The Company and Mars Parent shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy the Company and Mars Parent agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.66.4, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging the Offer, the Merger or any other transaction contemplated by this Agreement as violative of any Regulatory Law, each of Galaxy the Company and Mars Parent shall cooperate in all respects with each other and shall use their its respective reasonable best efforts to contest and resist any such 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 Mergers Offer, the Merger or any other transaction contemplated hereby.
(e) For purposes of this Agreement, “Regulatory Law” means any and all state, federal and foreign statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other Laws requiring notice to, filings with, or the consent, clearance or approval of, any Governmental Entity, or that otherwise may cause any restriction, in connection with the Offer, the Merger and the other transactions contemplated by this Agreementthereby, including (i) the S▇▇▇▇▇▇ Act of 1890, the C▇▇▇▇▇▇ Antitrust Act of 1914, the HSR Act, the Federal Trade Commission Act of 1914 and all other Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening competition through merger or acquisition, (ii) any Law governing the direct or indirect ownership or control of any of the operations or assets of the Company and its Subsidiaries or (iii) any Law with the purpose of protecting the national security or the national economy of any nation.
Appears in 1 contract
Efforts. (a) Subject From and after the date hereof and subject to the terms Section 5.1(d), Purchaser and conditions set forth in this AgreementSeller shall, each of the parties hereto and shall cause their respective Affiliates to, use all reasonable their respective best efforts to take promptlytake, or cause to be taken, all actions, and to do promptlydo, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under any applicable Laws Law to consummate and make effective in the Mergers most expeditious manner possible the Transaction and the other transactions contemplated by this Agreement, including (i) obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals, the preparation and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making filing of all necessary registrations forms, registrations, Filings and filings and notices required to be filed to satisfy the taking of all steps as may be necessary conditions precedent to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) obtaining all necessary consents, approvals or waivers from third parties, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or (including those set forth in Section 8.1) and to consummate the consummation of the Mergers Transaction and the other transactions contemplated by this Agreement as soon as practicable and (ivii) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers Transaction and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement. Additionally, Purchaser shall not, and use reasonable best efforts shall cause its Affiliates not to, take any action after the date of this Agreement that would reasonably be expected to cause impair or materially delay the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made withobtaining of, or consentsresult in not obtaining, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required any Regulatory Approvals necessary to be obtained from, any third parties or other Governmental Entities in connection with prior to the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated herebyClosing, including taking (and, in the case of Mars, Holdco acquiring or the Merger Subs, cause each of their respective affiliates agreeing to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effectingacquire, by consent decreemerger, hold separate order consolidation, stock or asset purchase or otherwise, the saleany business or corporation, divestiture partnership or disposition of any assets other business organization or businesses of Mars, Holdco or their respective Subsidiaries or affiliatesdivision thereof, or of Galaxy merging or its Subsidiaries and (y) otherwise taking consolidating with any other Person, if such transaction would reasonably be expected to impair or committing to take any actions that after materially delay the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry obtaining of, or to effect the dissolution ofresult in not obtaining, any injunction, temporary restraining order Regulatory Approvals necessary to be obtained prior to the Closing or other order in any suit otherwise impair or proceeding which would otherwise have materially delay the effect of preventing Closing.
(b) Prior to the Closing, materially delaying Purchaser and Seller shall each keep the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the Transaction and the other transactions contemplated therebyby this Agreement and work cooperatively in connection with obtaining all required Regulatory Approvals. In that regard, including prior to the Closing, subject to the Confidentiality Agreement and Section 5.3, each Party shall promptly furnishing consult with the other Party to provide any necessary information with respect to (and, in the case of correspondence, provide the other Party (or its counsel) copies of) all Filings made by such Party or any of its Affiliates with any Governmental Entity or any other information supplied by such Party or any of its Affiliates to, or correspondence with, a Governmental Entity in connection with this Agreement, the Transaction and the other transactions contemplated by this Agreement. Subject to the Confidentiality Agreement and Section 5.3, each Party shall promptly inform the other Party, and if in writing, furnish the other Party with copies of notices or (or, in the case of oral communications, advise the other communications Party orally of) any communication received by Galaxy or Mars, as the case may be, such Party or any of their respective Subsidiaries, its Affiliates or Representatives from any third party and/or any Governmental Entity with respect to such transactions. Galaxy regarding the Transaction and Mars shall permit counsel for the other party reasonable opportunity transactions contemplated by this Agreement, and permit the other Party to review and discuss in advance, and consider in good faith the views of the other party Party in connection with, any proposed written communication to with any such Governmental Entity. Each If either Party or any Affiliate or Representative of Galaxy such Party receives a request for additional information or documentary material from any Governmental Entity with respect to the Transaction or the other transactions contemplated by this Agreement, then such Party will make, or cause to be made, promptly and Mars agrees not to after consultation with the other Party, an appropriate response in compliance with such request. None of Purchaser, its Affiliates or its Representatives, on the one hand, and none of Seller, its Affiliates or its Representatives, on the other, shall participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with this Agreement and the proposed Transaction or the other transactions contemplated by this Agreement (or make oral submissions at meetings, videoconference, or by telephone or other conversations) unless it consults with the other party in advance and, to the extent not prohibited permitted by such Governmental Entity, gives the other party the opportunity to attend and participateparticipate thereat. Subject to the Confidentiality Agreement and Section 5.3, each Party shall furnish the other Party with copies of all correspondence and Filings (and memoranda setting forth the substance thereof) between it or any of its Affiliates or Representatives, on the one hand, and any Governmental Entity, on the other hand, with respect to this Agreement and the Transaction or the other transactions contemplated by this Agreement, and furnish the other Party with such necessary information and reasonable assistance as the other Party may reasonably request in connection with its preparation of Filings to any such Governmental Entity. Purchaser and Seller may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Agreement as “outside counsel only.” Such materials and the information contained therein shall be given only to the outside legal counsel and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Purchaser or Seller, as the case may be) or its legal counsel; provided, however, that materials provided pursuant to this Agreement may be redacted (i) to remove references concerning the valuation of or future plans for the Business or the Sale Process, (ii) as necessary to comply with contractual obligations or applicable Law and (iii) as necessary to address reasonable privilege concerns.
(c) Without limiting the foregoing, Purchaser shall, and shall cause its Affiliates to, make any Filings under the Antitrust Laws or the FDI Laws of the jurisdictions set forth in Section 8.1(a) of the Seller Disclosure Schedules as promptly as practicable, but in any event within the timeframe provided for in the Put Option. Purchaser shall not, and shall cause its Affiliates not to, make any other Filings under the Antitrust Laws or the FDI Laws of any other jurisdictions without the prior written consent of Seller unless Purchaser receives written notice from a Governmental Entity that such other Filings are expressly required by such Governmental Entity.
(d) In furtherance and not in limitation of the covenants of foregoing, and notwithstanding anything in this Agreement to the parties contained contrary, Purchaser shall, and shall cause its Affiliates to, take all such actions as may be necessary to avoid or eliminate each and every impediment under any applicable Antitrust Laws with respect to the transactions contemplated hereby and to resolve such objections, if any, as any Governmental Entity or any other Person may assert under any applicable Antitrust Laws with respect to the transactions contemplated hereby, so as to enable the Antitrust Approvals to be obtained as soon as reasonably possible (and in any event so as to enable the Closing to occur prior to the Outside Date); provided, that nothing in this Section 5.6or in any other provision in this Agreement shall require Purchaser or its Affiliates to take any actions, if or commit to take any administrative action, or judicial agree to any condition or restriction, in connection with obtaining any required Regulatory Approvals that would reasonably be expected to have a material adverse effect on Purchaser, its Affiliates and the Business, taken as a whole, after giving effect to the transactions contemplated in this Agreement. In furtherance of the foregoing, Purchaser shall proffer to and agree to sell, divest, lease, license, transfer, dispose of or otherwise encumber or hold separate before or after the Closing, any assets, licenses, operations, rights product lines, businesses or interests therein of the Business, the Purchased Entities or of Purchaser or its Affiliates (and consent to any sale, divestiture, lease, license, transfer, disposition or other encumbering by Seller or its Affiliates of any assets of the Business or the Purchased Entities or to any agreement by Seller or its Affiliates to take any of the foregoing actions) and agree to make any changes (including through a licensing arrangement) or restriction on, or other impairment of Purchaser’s ability to vote, transfer, receive dividends, or otherwise exercise full ownership rights with respect to ownership interests in the Business or the assets, licenses, operations, rights, product lines, businesses or interests of Purchaser or its Affiliates, so long as such actions, conditions or restrictions would not reasonably be expected to have a material adverse effect on Purchaser, its Affiliates and the Business, taken as a whole, after giving effect to the transactions contemplated in this Agreement. Notwithstanding anything in this Agreement to the contrary, Seller and its Affiliates shall not be obligated to take or agree or commit to take any action that (i) is not conditioned on the Closing or proceeding(ii) relates to the Retained Businesses; and in no event shall Seller or any of its Affiliates be required to be the licensing, selling, divesting, leasing, transferring, disposing or encumbering party under any such agreements unless required by the relevant Governmental Entity or applicable Law, and, in any case, Seller and its Affiliates shall have no direct or indirect obligation or Liability in respect of any such agreements, transactions or relationships, including any proceeding indemnification obligations, for which Seller and its Affiliates are not fully indemnified by a private partyPurchaser. In furtherance of the foregoing, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any LawPurchaser shall, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective cause its Affiliates to, agree upon and accept commercially reasonable best efforts to contest and resist conditions or undertakings imposed by any such 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 Governmental Entity in effect and that prohibits, prevents or restricts consummation connection with obtaining the Regulatory Approvals under FDI Laws set forth in Section 8.1(a) of the Mergers Seller Disclosure Schedules.
(e) Purchaser agrees to provide such security and assurances as to financial capability, resources and creditworthiness as may be reasonably requested by any Governmental Entity, any counterparty to the Shared Contracts or, if determined by Purchaser, any other third party whose Approval is sought in connection with the Transaction and the other transactions contemplated by this Agreement. Whether or not the Transaction is consummated, Purchaser shall be responsible for all fees and payments (including filing fees and legal and professional fees) to any counterparty to the Shared Contracts, any Governmental Entity and, if determined by Purchaser, any other third party whose Approval is sought in connection with the Transaction in order to obtain such Approvals pursuant to this Agreement, other than (i) the fees of and payments to Seller’s legal and professional advisors and (ii) as otherwise specifically set forth in Section 2.6. Seller shall cooperate with the Purchaser and use commercially reasonable efforts, at Purchaser’s sole cost and expense, to obtain any Approvals required from the contract counterparties under the agreements set out in Section 3.4(a) of the Seller Disclosure Schedules, as requested by Purchaser.
(f) Promptly after the date of this Agreement and in any case no later than ten (10) Business Days after the date hereof, the Seller shall deliver to the Purchaser a draft amendment to the by-laws and any other relevant organizational document of the Italian Purchased Entity that are necessary for the restrictions and limitations set forth in Section 5.1(f) of the Seller Disclosure Schedules which may prevent the Purchaser from acquiring the Italian Purchased Interests to be removed. Purchaser shall have five (5) days to review and provide reasonable comments to the drafts proposed by the Seller and Seller shall reflect in such documents any reasonable comments which the Purchaser may timely make (insofar as these comments are relevant to remove the restrictions and limitations set forth in Section 5.1(f) of the Seller Disclosure Schedules). As soon as practicable after the documents have been agreed, Seller shall cause its Affiliates to use reasonable best efforts to carry out all actions and execute all necessary documents to validly approve and adopt the amendments of the by-laws and other relevant organizational documents of the Italian Purchased Entity and, where required by applicable Laws, to register such amendments with the relevant competent Governmental Entity prior to the Closing.
(g) Notwithstanding anything in this Agreement to the contrary, none of Seller or any of its Affiliates shall under any circumstance be required to pay or commit to pay any amount or incur any obligation in favor of or offer or grant any accommodation (financial or otherwise, regardless of any provision to the contrary in the underlying Contract, including any requirements for the securing or posting of any bonds, letters of credit or similar instruments, or the furnishing of any guarantees) to any Person to obtain any Approval. None of Seller or any of its Affiliates shall have any Liability whatsoever to Purchaser or any of its Affiliates arising out of or relating to the failure to obtain any Approvals that may be required in connection with the Transaction and the other transactions contemplated by this Agreement or because of the termination of any Contract or any default under, or acceleration or termination of or loss of any benefit under, any Contract or Specified Marketing Authorization as a result thereof; provided that Seller shall have complied in all material respects with its obligations hereunder. For the avoidance of doubt, but without limiting Section 5.1(e) or this Section 5.1(f), the applicable provisions of Section 2.6, and not the provisions of Section 5.1(a), Section 5.1(b), Section 5.1(c) and Section 5.1(d), shall govern with respect to Specified Marketing Authorization Approvals.
Appears in 1 contract
Efforts. (a) Subject to From and after the terms date hereof, Purchaser and conditions set forth in this Agreement, each of Seller shall (and Seller shall cause the parties hereto shall other Seller Entities to) use all reasonable best efforts to take promptlytake, or cause to be taken, all actions, and to do promptlydo, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under any applicable Laws Law to consummate and make effective in the Mergers most expeditious manner reasonably possible the Transaction and the other transactions contemplated by this Agreement, including (i) obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals, the preparation and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making filing of all necessary forms, registrations and filings and notices required to be filed to consummate the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) obtaining all necessary consents, approvals or waivers from third parties, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers Transaction and the other transactions contemplated by this Agreement as soon as practicable (and with respect to notifications required under the HSR Act, within ten (10) Business Days of the date of this Agreement) and (ivii) the execution and delivery of any additional instruments necessary to consummate the Transaction and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement. The HSR Act filing fee shall be borne by Purchaser. Without limiting the foregoing, Purchaser and Seller shall (and Seller shall cause the other Seller Entities to) use reasonable best efforts to take all actions necessary to obtain (and shall cooperate with each other in obtaining) any Regulatory Approvals (which actions shall include furnishing all information required in connection with such Regulatory Approvals) required to be obtained or made by Purchaser, Seller, the other Seller Entities or the Purchased Companies in connection with the Transaction or the other transactions contemplated by this Agreement. Additionally, each of Purchaser and Seller shall use their respective reasonable best efforts to fulfill all conditions precedent to this Agreement (including those set forth in Section 8.1) and shall not take, and shall not permit any of its respective Affiliates to take, any action after the date of this Agreement that would reasonably be expected to impair or materially delay the obtaining of, or result in not obtaining, any Regulatory Approval necessary to be obtained prior to the Closing; provided, however, that in no event Purchaser shall Galaxy be permitted to take the actions set forth on Section 5.1(a) of the Purchaser Disclosure Schedule. To the extent that transfers of any Permits are required as a result of the execution of this Agreement or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the Transaction or the other transactions contemplated by this Agreement, the Parties shall use reasonable best efforts to promptly secure the issuance, reissuance or transfer of such Permits.
(b) Prior to the Closing, unless otherwise prohibited by Law, Purchaser and Seller shall each keep the other apprised of the status of matters relating to the completion of the Transaction and the other transactions contemplated by this Agreement under any contract or agreement.
(b) Subject and work cooperatively in connection with obtaining all required Regulatory Approvals. In that regard, prior to the terms and conditions herein provided and without limiting the foregoingClosing, subject to applicable Law, the parties hereto Confidentiality Agreement and Section 5.3, each party shall (i) promptly, but in no event later than fifteen (15) Business Days after promptly consult with the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file other party to this Agreement to provide any and all required Notification and Report Forms under the HSR Act necessary information with respect to (and, in the Mergers case of correspondence, provide the other party (or their counsel) copies of) all filings made by such party with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement, the Transaction and the other transactions contemplated by this Agreement. Subject to applicable Law, the Confidentiality Agreement and Section 5.3, each party shall promptly inform the other party, and if in writing, furnish the other party with copies of (or, in the case of oral communications, advise the other party orally of) any communication from any Governmental Entity regarding the Transaction and the other transactions contemplated by this Agreement, and permit the other party to review and discuss in advance, and consider in good faith the views of the other party in connection with, any proposed written or oral communication with any such Governmental Entity. If either party or any Representative of such party receives a request for additional information or documentary material from any Governmental Entity with respect to the Transaction or the other transactions contemplated by this Agreement, then such party will use its reasonable best efforts to make, or cause to be made, promptly and after consultation with the other party, an appropriate response in compliance with such request. Neither Party will participate, or permit its Representatives to participate in any meeting with any Governmental Entity in connection with this Agreement and the Transaction or the other transactions contemplated by this Agreement (or make oral submissions at meetings or in telephone or other conversations) unless it consults with the other Party in advance and, to the extent not prohibited by such Governmental Entity, gives such other Party and its Representatives a reasonable opportunity to attend and participate thereat. Subject to applicable Law, the Confidentiality Agreement and Section 5.3, each party shall furnish the other party with copies of all correspondence, written submissions, filings and communications (and any memoranda prepared by such party setting forth the substance thereof) between it and any such Governmental Entity with respect to this Agreement and the Transaction or the other transactions contemplated by this Agreement, and furnish the other party with such necessary information and reasonable assistance as the other party may reasonably request in connection with its preparation of filings or submissions of information to any such Governmental Entity. Notwithstanding anything in this Section 5.1(b) to the contrary, Purchaser and Seller may, as each reasonably deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 5.1(b) as “outside counsel only.” Such materials and the information contained therein shall be given only to the outside legal counsel and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Purchaser or Seller, as the case may be) or its legal counsel; provided, that materials provided pursuant to this Section 5.1(b) may be redacted (i) to remove references concerning the valuation of or future plans for the Business or Purchaser’s business, (ii) as necessary to comply with contractual obligations, and (iii) as necessary to address reasonable privilege concerns.
(c) Each of Purchaser and Seller shall use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates using reasonable best efforts to take) take all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction Governmental Entity or any other person Person may assert under any Antitrust Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Outside Date). In furtherance (and not in limitation) of the foregoing sentence, includingPurchaser shall proffer to, without limitationor agree to, sell, divest, lease, license, transfer, dispose of or otherwise encumber or hold separate and agree to sell, divest, transfer, dispose of or otherwise encumber, any assets, licenses, operations, rights, product lines, businesses or interests therein of the Business or of Purchaser (xor to consent to any sale, divestiture, lease, license, transfer, disposition or other encumbering by the Seller Entities of any of assets of the Business or to any agreement by any of the Seller Entities to take any of the foregoing actions) proposingand to agree to make any material changes (including through a licensing arrangement) or restriction on, negotiatingor other impairment of Purchaser’s ability to own or operate, committing of any such assets, licenses, product lines, businesses or interests therein or Purchaser’s ability to vote, transfer, receive dividends, or otherwise exercise full ownership rights with respect to ownership interests in the Business or of Purchaser. To assist Purchaser in complying with its obligations set forth in this Section 5.1, at the written request of Purchaser, Seller shall, and effectingshall cause its Subsidiaries to, enter into one or more agreements requested by consent decreePurchaser to be entered into by any of them prior to the Closing with respect to any transaction to divest, hold separate order or otherwise, take any action that limits the sale, divestiture or disposition of any assets or businesses of Mars, Holdco Purchased Companies’ or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action action, ownership or control with respect to, or its their ability to retainretain or hold, one directly or more indirectly, any of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, assets, equity interests, product lines or assetsproperties of the Business (each, a “Divestiture Action”); provided, that (i) the consummation of the transactions provided for in each any such agreement for a Divestiture Action (a “Divestiture Agreement”) shall be conditioned upon the Closing or satisfaction of all of the conditions to Closing in a case as may be required in order to avoid commencement of litigation seeking where the entry of, or Closing will occur immediately following such Divestiture Action (and where Purchaser has irrevocably committed to effect the dissolution ofClosing immediately following such Divestiture Action), any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of (ii) Purchaser shall indemnify Seller and its Subsidiaries for, and hold Seller and its Subsidiaries harmless from, all costs, expenses and Liabilities incurred by Seller or its Subsidiaries arising from or relating to such Divestiture Agreement, and (iii) in no event shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall Seller be required to take any Divestiture Action with respect to the Excluded Assets.
(d) Whether or not the Transaction is consummated, Purchaser shall be responsible for all fees and payments (including filing fees) to any Governmental Entity in order to obtain any Regulatory Approvals pursuant to this Section 5.1, other than the fees of and payments to Seller’s legal and professional advisors.
(e) Subject to this Section 5.1, Purchaser shall have the actions described in clauses (iv)(x) or (y) above right to direct all matters with any Governmental Entity consistent with its obligations hereunder, and Purchaser shall make all strategic decisions and lead all discussions, negotiations and other proceedings, and coordinate all activities with respect to any of their requests that may be made by, or Galaxy’s assets any Approvals that may be sought by or businesses if such action would be material in relation to the assets or business of Holdcofrom, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of including determining the status of matters relating strategy for contesting, litigating or otherwise responding to objections to, or Proceedings challenging, the completion consummation of the transactions contemplated therebyby this Agreement, including promptly furnishing in each case subject to good faith consultations with Seller reasonably in advance and in consideration of Seller’s views.
(f) Any provision in this Agreement notwithstanding, none of Seller, the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, Seller Entities or any of their respective SubsidiariesAffiliates (including, from prior to the Closing, the Purchased Companies) shall under any third party and/or circumstance be required to pay or commit to pay any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel amount or incur any obligation in favor of or offer or grant any accommodation (financial or otherwise, including any requirements for the securing or posting of any bonds, letters of credit or similar instruments, or the furnishing of any guarantees) to any Person (other party reasonable opportunity than in respect of its or their attorney’s fees) to review in advanceobtain any Regulatory Approval. None of Seller, and consider in good faith the views other Seller Entities or any of their respective Affiliates (including, prior to the Closing, the Purchased Companies) shall have any Liability whatsoever to Purchaser solely relating to or arising out of the other party in connection with, failure to obtain any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity Regulatory Approvals that may be required in connection with the proposed transactions unless it 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.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers Transaction and the other transactions contemplated by this Agreement or because of the termination of any Contract as a result thereof.
(g) Notwithstanding anything to the contrary set forth in this Agreement, in no event shall Purchaser be permitted to terminate this Agreement pursuant to Section 9.1(d) or 9.1(e) as a result of the regulatory approval described in Section 8.1(a)(ii) not having been obtained prior to the Outside Date.
Appears in 1 contract
Efforts. (a) Subject to the terms Each of Buyer and conditions set forth in this Agreement, each of the parties hereto Seller shall use all reasonable its best efforts to take promptlypromptly take, or cause to be taken, all actions, and to do promptlypromptly do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws necessary to consummate and make effective the Mergers Sale and the other transactions contemplated by this Agreement as promptly as practicable and, in any event, prior to the earlier of the Outside Date and the termination of this Agreement, including (i) obtaining all necessary actions or nonactions, waivers, consents, clearances, approvalsApprovals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entityin connection therewith, (ii) obtaining using its best efforts to obtain all necessary consents, approvals Approvals or waivers from third parties, and (iii) subject to Section 5.5(c), defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this AgreementSale; provided, however, that in no event shall Galaxy the Seller or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior pay, or cause to the Effective Time be paid, any fee, penalty or other consideration to any third party (other than filing fees contemplated by this Section 5.5(a)) for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreementagreement with an Acquired Company (and not Seller or its other Subsidiaries or Affiliates).
(b) Subject to the terms Buyer and conditions herein provided and without limiting the foregoing, the parties hereto Seller shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof hereof, file (or such later date as may cause to be mutually agreed in writing by the parties hereto), file filed) any and all required Notification pre-merger notification and Report Forms report forms under the HSR Act with respect to the Mergers Sale. Buyer and Seller shall request early termination, if available, of any applicable waiting periods under the other transactions contemplated by this Agreement, Antitrust Laws and shall respectively use reasonable their best efforts to cause the expiration or termination of any applicable such waiting periods under periods, and shall supply to the HSR Act; Antitrust Division of the United States Department of Justice (ii“Antitrust Division”) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to useUnited States Federal Trade Commission (“FTC”) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by any of them. Buyer and Seller also agree to make as promptly as practicable any filings required with respect to the Foreign Antitrust Approvals, including providing as promptly as practicable any additional information or documents that may be requested pursuant to any Law or in connection with such Governmental Entity; filings, and (iv) take, or cause to be taken, take all other actions and donecessary in order to obtain the Foreign Antitrust Approvals as soon as practicable.
(c) In furtherance of the covenants of the parties contained in this Section 5.5, (i) if any administrative or cause judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be done, all other things necessary, proper instituted) challenging the validity or advisable to consummate and make effective legality of the transactions contemplated herebyhereby or seeks damages in connection therewith, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates the parties hereto shall use its reasonable best efforts to defend, contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction, or other order, whether temporary, preliminary or permanent, that results from such action or proceeding and that prohibits, prevents or restricts consummation of the Sale on or before the Outside Date and (ii) Buyer shall use best efforts to take) , at Buyer’s sole cost, all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon promptly as reasonably possible practicable (and in any event no later than the End Outside Date), and including, without limitationin the case of Buyer, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order order, or otherwise, to (i) sell, divest, dispose of or otherwise hold separate (including by establishing a trust or otherwise), any of the saleoperations, divestiture or disposition of any divisions, product lines, customers, businesses, assets or businesses properties of MarsBuyer, Holdco the Acquired Companies or any of their respective Subsidiaries controlled Affiliates, including the Business (other than Seller and its Affiliates following the Closing), (ii) terminate, amend or affiliatesassign existing relationships and contractual rights and obligations (other than terminations that would result in a breach of a contractual obligation to a third party), (iii) amend, assign or terminate existing licenses or other agreements (other than terminations that would result in a breach of Galaxy a license or its Subsidiaries such other agreement with a third party) and enter into such new licenses or other agreements of the Acquired Companies, (iv) enter into any order, consent decree or other agreement with a Governmental Entity to effectuate any of the foregoing, and (yv) otherwise taking take or committing commit to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ Buyer’s freedom of action with respect to, or its ability to retainoperate and/or retain any of the businesses, one assets or more properties of Buyer, the Acquired Companies or any of their respective controlled Affiliates (other than Seller and its or its Subsidiaries’ (Affiliates following the Closing), including the Surviving Corporations’Business (the actions described in the foregoing clauses (i) businesses- (v) being “Divestiture Actions”). All filing fees incurred in connection with the HSR Act shall be borne by Buyer. Notwithstanding anything in this Agreement to the contrary, product lines Seller and its Affiliates shall not be obligated to take or assets, in each case as may be required in order agree or commit to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, take any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying action (i) that is not conditioned on the Closing or delaying the Closing beyond the End Date(ii) that relates to any Excluded Assets or Excluded Businesses; provided that neither Galaxy nor any of its Subsidiaries and in no event shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy Seller or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall Affiliates be required to take be the licensing, selling, divesting, leasing, transferring, disposing or encumbering party under any such agreements unless required by the relevant Governmental Entity or applicable Law, and, in any case, Seller and its Affiliates shall have no direct or indirect obligation or Liability in respect of the actions described in clauses (iv)(x) any such agreements, transactions or (y) above with respect to relationships, including any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdcoindemnification obligations, Mars, Galaxy for which Seller and their respective Subsidiaries, taken as a whole, at or after the Effective Timeits Affiliates are not fully indemnified by Buyer.
(cd) Subject Buyer and Seller shall cooperate and consult with each other in connection with the making of all filings, notifications, communications, submissions, and any other actions pursuant to this Section 5.5, and, subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy Buyer and Mars Seller shall keep each other apprised on a current basis of the status of matters relating to the completion of the transactions contemplated thereby, including promptly notifying the other of any oral communication and furnishing the other with copies of notices or other written communications received by Galaxy or MarsBuyer and Seller, as the case may be, or any of their respective SubsidiariesSubsidiaries or Affiliates, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy Subject to applicable Law relating to the exchange of information, Buyer and Mars Seller shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed notifications or filings and any substantive written communication communications or submissions to any Governmental Entity. Each of Galaxy Buyer and Mars agrees Seller agree not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless unless, to the extent reasonably practicable, it consults with the other party in advance and, to the extent reasonably practicable and not prohibited by such Governmental Entity, gives the other party the a reasonable opportunity to attend and participate.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers and the other transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Trinity Industries Inc)
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall, and the Company shall cause each of its Subsidiaries to, use all its reasonable best efforts (subject to, and in accordance with, applicable Law) to take promptly, or to cause to be taken, all actions, and to do promptly, or to cause to be done, and to assist and to cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Mergers Merger and the other transactions contemplated by this Agreementhereby, including (i) obtaining all necessary actions or nonactions, waivers, consents, clearances, consents and approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Company Approvals, from Governmental Entities or other persons and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) obtaining all necessary consents, approvals or waivers from third parties, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement hereby and (iviii) the execution and delivery of any additional instruments reasonably necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreementhereby.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto Company and Parent shall (i) promptly, but in no event later than fifteen fourteen (1514) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto)hereof, file make their respective filings and thereafter make any and all other required Notification and Report Forms submissions under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreementas promptly as reasonably practicable, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations waivers or terminations of waiting periods approvals are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining seeking all such consents, permits, authorizations or approvals; , (iii) supply use reasonable best efforts to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or to cause to be taken, all other actions and to do, or to cause to be done, all other things necessary, proper or advisable to consummate and make effective the Merger and the other transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as reasonably may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state or foreign antitrust enforcement authorities or competition authorities, other Governmental Entities, or other state or federal regulatory authorities of any other nation or other jurisdiction or any other person may assert under any Regulatory Law with respect to the Merger and the other transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers Merger so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (yiv) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated therebyby this Agreement, including to the extent permitted by Law promptly furnishing the other with copies of notices or other communications sent or received by Galaxy the Company or MarsParent, as the case may be, or any of their respective Subsidiaries, to or from any third party and/or any Governmental Entity with respect thereto, and permit the other to review in advance any proposed written communication by such transactionsparty to any supervisory or Governmental Entity. Galaxy Notwithstanding anything in this Agreement to the contrary, except as provided below, nothing contained in this Agreement shall be deemed to require Parent or any of its Affiliates, or the Company (unless requested by Parent) or any of its Subsidiaries or the Surviving Corporation or any of its Affiliates to take or agree to take any Action of Divestiture or Limitation. For purposes of this Agreement, an “Action of Divestiture or Limitation” shall mean (i) executing or carrying out agreements or submitting to the requirements of any Governmental Entity providing for a license, sale or other disposition of any assets or businesses or categories of assets or businesses of the Company and Mars its Subsidiaries or the holding separate of any assets or businesses or Company capital stock or imposing or seeking to impose any limitation on the ability of the Company or any of its Subsidiaries to own such assets or to acquire, hold or exercise full rights of ownership of the Company’s business or on the ability of the Company to conduct the business of the Company and its Subsidiaries, (ii) modification of a Company Permit or the terms of any Contract with any customer of the Company or any of its Subsidiaries in a manner that would materially reduce the economic benefits of such Company Permit or Contract or (iii) the imposition of any material condition or limitation that restricts the business of Parent or its Affiliates. The Company and Parent shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate Notwithstanding anything in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it consults with the other party in advance and, this Agreement to the extent not prohibited by contrary, the Company shall, upon the request of Parent, agree to take any Action of Divestiture or Limitation with respect to the Company or any of its Subsidiaries so long as such Governmental Entity, gives Action of Divestiture or Limitation is binding on the other party Company and its Subsidiaries only in the opportunity to attend and participate.
(d) In furtherance and not in limitation of event the covenants of the parties contained Closing occurs. Notwithstanding anything in this Section 5.6Agreement to the contrary, if any administrative or judicial action or proceedingthe Company shall not, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts cause its Subsidiaries not to, undertake any Action of Divestiture or Limitation with respect to contest and resist the Company or any such action or proceeding and to have vacatedof its Subsidiaries without the consent of Parent, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is which may be withheld in effect and that prohibits, prevents or restricts consummation of the Mergers and the other transactions contemplated by this AgreementParent’s sole discretion.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto Parties shall use all (and Parent shall cause its Subsidiaries to use) their respective reasonable best efforts to take promptly, or cause to be taken, all actions, and to do promptly, or cause to be done, and to assist and cooperate with the other parties Parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Mergers Merger and the other transactions contemplated by this AgreementTransactions as promptly as practicable and in any event prior to the End Date, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, approvals and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, periods from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action Action or proceeding Legal Proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third partiesparties (other than Governmental Entities), (iii) the defending of any Actions, lawsuits or other legal proceedingsLegal Proceedings, whether judicial or administrative, challenging this Agreement or challenging, hindering, impeding, interfering with or delaying the consummation of the Mergers Merger and the other transactions contemplated Transactions, including seeking to have any stay, temporary restraining order or injunction entered by this Agreement any court or other Governmental Entity in connection with the foregoing vacated or reversed and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this AgreementTransactions; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco the Company be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for or triggered by the consummation of the transactions contemplated by this Agreement Transactions under any contract Contract or agreementotherwise unless requested by Parent in writing, in which such case, it shall pay such fee, penalty or other consideration so long as such payment is conditioned on the occurrence of the Closing.
(b) Subject to the terms and conditions herein provided in this Agreement and without limiting the foregoing, the parties hereto Company and Parent shall (iand Parent shall cause its Subsidiaries to) (x) promptly, but in no event later than fifteen ten (1510) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto)hereof, file or cause to be filed any and all required Notification notification and Report Forms report forms under the HSR Act with respect to the Mergers Merger and the other transactions contemplated by this AgreementTransactions; provided that there are no changes in the applicable regulations under the HSR Act between the date hereof and the date of filing pursuant to the HSR Act, in which instance the Company and Parent shall use reasonable best efforts to file or cause to be filed any and all required notification and report forms under the HSR Act as promptly as commercially practicable thereafter, and (y) file or cause to be filed any and all notifications with respect to the Merger and the other Transactions as may be requested by any Governmental Entity under the Specified Laws promptly, but in no event later than twenty (20) Business Days, after receiving such request from the applicable Governmental Entity. Subject to Section 6.8(c), the Company and Parent shall (and Parent shall cause its Subsidiaries to) use all reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; . Parent and the Company may not (i) commit to or agree with any Governmental Entity to voluntarily stay, toll or extend any applicable HSR Act waiting period or review period, (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate enter into any timing agreement with each other in (x) determining whether any filings are required to be made withGovernmental Entity, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to pull and refile any Governmental Entity as promptly as practicable filing under the HSR Act or any additional information or documents that may be requested pursuant to any other applicable Antitrust Law or by such Governmental Entity; the Specified Laws, without the prior written consent of the other party (not to be unreasonably withheld, conditioned or delayed).
(c) In furtherance and not in limitation of the foregoing, Parent and the Company shall (ivand Parent shall cause its Subsidiaries to) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated herebyMerger and the other Transactions, including by taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if anyand to avoid or eliminate each and every impediment, as in each case, under the Specified Laws or any Antitrust Law that may be asserted by the United States Federal Trade CommissionCommission (“FTC”), the Antitrust Division of the United States Department of JusticeJustice (“DOJ,” and together with the FTC, the “U.S. Antitrust Agencies”), state antitrust enforcement authorities or competition authorities of any other nation Governmental Entity or other jurisdiction or any other person may assert under any Law Person with respect to the transactions contemplated hereby, Merger and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers other Transactions so as to enable the Closing to occur as soon promptly as reasonably possible practicable after the date hereof (and in any event no later than the End Date), includingincluding (i) supplying or causing to be supplied to any Governmental Entity as promptly as practicable any and all additional information or documentary material that may be requested, without limitationand certifying compliance with such request (as applicable), under any Law or by such Governmental Entity, (xii) proposingterminating, negotiatingtransferring or creating relationships, committing to contractual rights or other obligations of Parent (including its Subsidiaries) and effectingthe Company, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (yiii) otherwise taking or committing to take any actions or agree to any undertakings that after the Closing Date would limit the freedom of Holdco or Parent’s (including its Subsidiaries’ (including ’, and the Surviving Corporations’Corporation’s) or affiliates’ freedom of action with respect to Parent’s (including its Subsidiaries’, and the Surviving Corporation’s) future operations with respect to, assets (whether tangible or its ability to retainintangible), one businesses, divisions, personnel, operations, products or more product lines or contractual or supply relationships of its or Parent (and its Subsidiaries’ (, including the Surviving Corporations’Corporation) businesses, product lines or assetsthe Company, in each case so as may be required in order to satisfy the conditions to the Closing or to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which Legal Proceeding that would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End DateDate (each such action in the foregoing clauses (ii) and (iii), individually or collectively, a “Remedial Action”). Notwithstanding anything in this Agreement to the contrary, (i) the Company shall not be (x) required to or become subject to, or consent or agree to or otherwise take any Remedial Action or Divestiture Action unless such action is applicable to the Company only from and after the Effective Time or (y) permitted to offer or agree to or effectuate any Remedial Action or Divestiture Action without the prior written consent of Parent; provided that neither Galaxy nor (ii) Parent (or any of its Subsidiaries) shall not be required to: (x) become subject to any Remedial Action if such Remedial Action would or would reasonably be expected to result in a material adverse effect on Parent and its Subsidiaries (including the Company) taken as a whole, after giving effect to the Transactions, provided, however, that for this purpose, Parent and its Subsidiaries (including the Company) taken as a whole shall be deemed a consolidated group of entities of the size and scale of a hypothetical company that is 100% of the size of the Company as of the date of this Agreement, (y) become subject to, or consent or agree to or otherwise take any action with respect to, to any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its SubsidiariesRemedial Action, unless such requirement, condition, understanding, agreement or order Remedial Action is binding on Galaxy or otherwise applicable to Parent or its Subsidiaries only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy from and their respective Subsidiaries, taken as a whole, at or after the Effective Time, or (z) propose, commit to, effect, or execute, by consent decree, settlement, undertaking, stipulations, hold separate order, binding agreement with a third part(ies) or otherwise, the sale, divestiture, hold separate or disposition of any or all of the share capital or other equity voting interests, assets (whether tangible or intangible), businesses, divisions, operations, products or product lines of Parent (including its Subsidiaries) or of the Company (collectively, “Divestiture Action”); and (iii) if requested by Parent in writing, the Company shall agree to any Remedial Action or Divestiture Action so long as such action is conditioned on the occurrence of the Closing.
(cd) Subject The Company, Parent and Merger Sub shall cooperate and consult with each other in connection with the making of all registrations, filings, notifications, communications, submissions and any other actions pursuant to this Section 6.8(d), and, subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy the Company, on the one hand, and Mars Parent and Merger Sub, on the other hand, shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated therebyTransactions, including promptly furnishing the other with copies of notices or other communications provided to or received by Galaxy or Marson behalf of the Company or Parent, as the case may be, or any of their respective Parent’s Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactionsthe Transactions. Galaxy Subject to applicable Law relating to the exchange of information, the Company, on the one hand, and Mars Parent and Merger Sub, on the other hand, shall permit counsel for the other party Party a reasonable opportunity to review in advance, and consider in good faith the views of the other party Party in connection with, any proposed notifications or filings and any written communications or submissions, and with respect to any such notification, filing, written communication or submission, any documents submitted therewith to any Governmental Entity; provided, that materials may be redacted (i) to remove references concerning the valuation of the businesses of the Company, or proposals from third parties with respect thereto, (ii) as necessary to comply with contractual agreements and (iii) as necessary to address reasonable privilege or confidentiality concerns. The Parties, as they deem advisable and necessary, may designate any competitively sensitive material provided to the other under this Section 6.8(d) as “Outside Counsel Only Material,” and such materials and the information contained therein shall be given only to outside counsel of the recipient and will not be disclosed to other Representatives of the recipient unless express written permission is obtained in advance from the source of the materials or its legal counsel. Each of Galaxy the Company, ▇▇▇▇▇▇ and Mars ▇▇▇▇▇▇ Sub agrees not to participate in any substantive meeting or discussion, either in person Person, by videoconference, or by telephone, with any Governmental Entity in connection with the proposed transactions Transactions unless it consults with the other party Party in advance and, to the extent not prohibited by such Governmental Entity, gives the other party Party the opportunity to attend and participate.
(de) In furtherance and not in limitation of the covenants of the parties Parties contained in this Section 5.66.8 and subject to Section 6.8(f), if any administrative or judicial action or proceeding, including any proceeding by a Governmental Entity or by a private party, is instituted (or threatened to be instituted) challenging challenging, hindering, impeding, interfering with or delaying any transaction contemplated by this Agreement Transactions, in each case, as violative of any Law, each of Galaxy the Company, Parent and Mars Merger Sub shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such action Action or proceeding Legal Proceeding and to have vacated, lifted, reversed or overturned any Action, decree, judgment, injunction or other orderOrder, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Mergers Merger or the other Transactions.
(f) Subject to Section 6.8(d), Parent shall, upon reasonable consultation with the Company and in consideration of the Company’s views in good faith, be entitled to direct the defense of this Agreement and the Transactions before any Governmental Entity and to take the lead in the scheduling of, and strategic planning for, any meetings with, and the conducting of discussions and negotiations with, Governmental Entities regarding any consent, approval, waiver, clearance, authorization or permission from a Governmental Entity.
(g) Without limiting any other transactions contemplated by obligation under this Agreement, during the period from the date of this Agreement until the Closing Date or earlier termination of this Agreement in accordance with Article 8, each of Parent and the Company shall not, and Parent shall cause its Subsidiaries to not, acquire or agree to acquire any other Person or business or any material assets or properties of any other Person if such acquisition would reasonably be expected to materially impede, prevent or materially delay the Parties from obtaining the expiration or termination of the waiting period under the HSR Act or obtaining the Specified Regulatory Approvals, or to prevent or materially delay or materially impede the consummation of the Transactions.
Appears in 1 contract
Sources: Merger Agreement (Encore Wire Corp)
Efforts. (a) Subject to the terms and conditions of this Agreement, following the date hereof, each Party shall use its commercially reasonable efforts to cause the Closing to occur as soon as practicable thereafter. Following the date hereof, each of Seller and Purchaser shall not, and shall not permit any of their respective Affiliates to, take any action that would, or that would reasonably be expected to, result in any of the conditions set forth in ARTICLE IV not being satisfied. This Section 9.01 shall not, and shall not be deemed to, restrict or prohibit Seller or Purchaser in any way whatsoever from exercising any and all rights and remedies available to it under this Agreement or any of the Ancillary Agreements.
(b) Each of Seller and Purchaser shall cooperate with the other Party and its employees, legal counsel, accountants and other representatives and advisers in connection with the steps required to be taken as part of their respective obligations under this Agreement, ; and each of them shall, at any time and from time to time after the parties hereto shall use all Closing, upon the reasonable best efforts to take promptlyrequest of the other, or cause to be takendo, all actionsexecute, acknowledge and to do promptlydeliver, or cause to be done, executed, acknowledged and to assist and cooperate with the other parties in doingdelivered, all things necessarysuch further acts, proper or advisable under applicable Laws to consummate deeds, assignments, transfers, conveyances, receipts, acknowledgments, acceptances and make effective the Mergers and the other transactions contemplated by this Agreement, including (i) obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps assurances as may be necessary reasonably required (without incurring unreimbursed expense) to obtain an approvalsatisfy and perform the obligations of such party hereunder, clearance or waiver from, or and to avoid an action or proceeding by, any Governmental Entity, (ii) obtaining all necessary consents, approvals or waivers from third parties, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or allow Purchaser to accomplish the consummation Intended Use of the Mergers and Product in the other transactions contemplated by this Agreement and (iv) Territory after the execution and delivery Closing. Without limiting the generality of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none FDA does not approve [***] as a manufacturer of Mars, Holdco the Products as contemplated by Section 3.02(b) or the Merger Subs Parties reasonably determine, in good faith, that any such approval is unlikely to be granted on a timely basis, the Parties shall be required mutually agree upon a new qualified manufacturer for the Product in the Territory, and Seller shall cooperate with Purchaser to take any of support such manufacturer in obtaining the actions described in clauses (iv)(x) or (y) above requisite FDA approval as a manufacturer with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective TimeProduct.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers and the other transactions contemplated by this Agreement.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall, and the Company shall cause each of its Subsidiaries to, use all its reasonable best efforts (subject to, and in accordance with, applicable Law) to take promptly, or to cause to be taken, all actions, and to do promptly, or to cause to be done, and to assist and to cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Mergers Merger and the other transactions contemplated by this Agreementhereby, including (i) obtaining all necessary actions or nonactions, waivers, consents, clearances, consents and approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Company Approvals, from Governmental Entities or other persons and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) obtaining all necessary consents, approvals or waivers from third parties, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement hereby and (iviii) the execution and delivery of any additional instruments reasonably necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreementhereby.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto Company and Parent shall (i) promptly, but in no event later than fifteen fourteen (1514) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto)hereof, file make their respective filings and thereafter make any and all other required Notification and Report Forms submissions under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreementas promptly as reasonably practicable, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations waivers or terminations of waiting periods approvals are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining seeking all such consents, permits, authorizations or approvals; , (iii) supply use reasonable best efforts to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or to cause to be taken, all other actions and to do, or to cause to be done, all other things necessary, proper or advisable to consummate and make effective the Merger and the other transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as reasonably may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers and the other transactions contemplated by this Agreement.such
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each Each of the parties hereto shall use all reasonable best efforts to take promptlytake, or cause to be taken, all actions, and appropriate action to do promptlydo, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws Law or otherwise to consummate and make effective the Mergers and the other transactions contemplated by this Agreement, including (i) obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) obtaining all necessary consents, approvals or waivers from third parties, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement and the Ancillary Agreements as promptly as practicable, including to (ivi) the execution obtain from Governmental Authorities and delivery of any additional instruments other Persons all consents, approvals, authorizations, qualifications and orders as are necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
and the Ancillary Agreements, (bii) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto shall within ten (i) promptly, but in no event later than fifteen (1510) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto)of this Agreement, file make all necessary filings, and thereafter make any and all other required Notification and Report Forms submissions, with respect to this Agreement required under the HSR Act with respect to the Mergers and the or any other transactions contemplated by this Agreementapplicable Law, and use reasonable best efforts to cause the expiration (iii) have vacated, lifted, reversed or termination of overturned any applicable waiting periods under the HSR Act; (ii) use (andorder, in the case of Marsdecree, Holdco or the Merger Subsruling, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made withjudgment, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties injunction or other Governmental Entities action (whether temporary, preliminary or permanent) that is in connection with the execution effect and delivery of this Agreement and that enjoins, restrains, conditions, makes illegal or otherwise restricts or prohibits the consummation of the transactions contemplated hereby by this Agreement and (y) timely making all such filings the Ancillary Agreements. In furtherance and timely obtaining all such consentsnot in limitation of the foregoing, permitsthe Peach Entities shall permit JGW reasonably to participate in the defense and settlement of any claim, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, suit or cause of action relating to be takenthis Agreement, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco Merger or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid the Peach Entities shall not settle or eliminate each and every impediment under compromise any Law that may such claim, suit or cause of action without JGW’s written consent, which consent shall not be asserted by any Governmental Entity with respect unreasonably withheld, delayed or conditioned. Notwithstanding anything herein to the Mergers so as contrary, neither party shall be required by this Section to enable the Closing take or agree to occur as soon as reasonably possible (and in undertake any event no later than the End Date)action, including, without limitation, (x) proposing, negotiating, committing to and effecting, by including entering into any consent decree, hold separate order or otherwiseother arrangement, that would (A) require the divestiture of any material assets of JGW, the sale, divestiture Peach Entities or disposition any of any assets or businesses of Mars, Holdco or their respective Subsidiaries Affiliates or affiliates, or of Galaxy or its Subsidiaries and (yB) otherwise taking or committing to take limit in any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ material respect JGW’s freedom of action with respect to, or its ability to retainconsolidate and control, one Orchard and its Subsidiaries or more any of its their assets or businesses or any of JGW’s or its SubsidiariesAffiliates’ other assets or businesses.
(including b) Without limitation to the Surviving Corporations’provisions of subsection (a) businesseshereof, product lines or assetsthe Peach Entities shall give promptly such notice to third parties and use commercially reasonable efforts to obtain such third party consents as JGW may reasonably deem necessary in connection with the transactions contemplated by this Agreement and the Ancillary Agreements. JGW shall cooperate with and assist the Peach Entities in giving such notices and obtaining such consents and estoppel certificates; provided, in each case as may be required in order however, JGW shall not have any obligation to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, give any injunction, temporary restraining order guarantee or other order consideration of any nature in connection with any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, such notice or consent or agree consent to or otherwise take any action with respect to, change in the terms of any requirement, condition, understanding, agreement or order arrangement that JGW in its sole discretion may deem adverse to the interests of a Governmental Authority to sell, to hold separate JGW or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy Orchard or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised None of the status of matters relating parties shall, directly or indirectly, enter into any agreement with a Governmental Authority to, or represent to the completion of a Governmental Authority that it will, delay or not consummate the transactions contemplated therebyby this Agreement or any Ancillary Agreement, including promptly furnishing except with the other with copies prior written consent of notices JGW or other communications received by Galaxy or MarsPeach Group, on behalf of the Peach Entities, as the case may be, or such consent not to be unreasonably withheld. To the extent permitted by applicable Law and subject to any confidentiality restrictions of their respective Subsidiariessuch Governmental Authority, from any third each party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for (x) promptly notify the other party reasonable opportunity of any written communication to that party from any Governmental Authority and, subject to applicable Law and subject to any confidentiality restrictions of such Governmental Authority, 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 written communication to any such Governmental Entity. Each of Galaxy Authority and Mars agrees incorporate the other party’s reasonable comments, (y) not agree to participate in any substantive meeting or discussion, either in person or by telephone, discussion with any such Governmental Entity Authority in connection with respect of any filing, investigation or inquiry concerning this Agreement or the proposed transactions contemplated hereby unless it consults with the other party in advance and, to the extent not prohibited permitted by such Governmental EntityAuthority, gives the other party the opportunity to attend and participate.
(dz) In furtherance furnish the other party with copies of all correspondence, filings and not written communications between them and their Affiliates and their respective representatives, on the one hand, and any such Governmental Authority or its respective staff on the other hand, with respect to this Agreement and the transactions contemplated hereby. Each party shall promptly notify the other parties in limitation writing of any pending or, to the Knowledge of such party, threatened proceeding or investigation by any Governmental Authority or any other person (i) challenging this Agreement or the consummation of the covenants transactions contemplated hereby or seeking material damages in connection with consummation of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction transactions contemplated by this Agreement as violative of or any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts Ancillary Agreement or (ii) seeking to contest and resist any such action restrain 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 prohibit the consummation of the Mergers and the other transactions contemplated by this Agreement or any Ancillary Agreement.
Appears in 1 contract
Efforts. (a) Subject to From and after the terms date hereof, Purchaser and conditions set forth in this AgreementSeller shall, each of the parties hereto and shall cause their respective Affiliates to, use all their respective reasonable best efforts to take promptlytake, or cause to be taken, all actions, and to do promptlydo, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under any applicable Laws Law to consummate and make effective in the Mergers most expeditious manner possible the Transaction and the other transactions contemplated by this Agreement, including (i) obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals, the preparation and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making filing of all necessary registrations forms, registrations, Filings and filings and notices required to be filed to satisfy the taking of all steps as may be necessary conditions precedent to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) obtaining all necessary consents, approvals or waivers from third parties, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or (including those set forth in Section 8.1) and to consummate the consummation of the Mergers Transaction and the other transactions contemplated by this Agreement as soon as practicable and (ivii) the execution and delivery of any additional instruments necessary to consummate the Transaction and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement. Without limiting the foregoing, Purchaser and Seller shall, and shall cause their respective Affiliates to, take all actions necessary to obtain (and shall cooperate with each other in obtaining) any Regulatory Approvals (which actions shall include furnishing all information required in connection with such Regulatory Approvals) required to be obtained or made by Purchaser, Seller or the other Seller Entities or any of their Affiliates in connection with the Transaction or the other transactions contemplated by this Agreement; provided. Additionally, howeverPurchaser and Seller shall not, and shall cause their respective Affiliates not to, take any action after the date of this Agreement that in no event shall Galaxy would reasonably be expected to impair or any of its Subsidiariesmaterially delay the obtaining of, or Mars or result in not obtaining, any of its Subsidiaries or Holdco Regulatory Approval necessary to be required to pay obtained prior to the Effective Time Closing. Without limiting the foregoing, Purchaser shall not, and shall cause its Affiliates not to, acquire or agree to acquire, by merger, consolidation, stock or asset purchase or otherwise, any feebusiness or corporation, penalty partnership or other consideration business organization or division thereof, or merge or consolidate with any other Person, if such transaction would reasonably be expected to impair or materially delay the obtaining of, or result in not obtaining, any third party for any consent or approval Regulatory Approval required for to be obtained prior to the consummation Closing.
(b) Prior to the Closing, Purchaser and Seller shall each keep the other apprised of the status of matters relating to the completion of the Transaction and the other transactions contemplated by this Agreement under and work cooperatively in connection with obtaining all required Regulatory Approvals. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 5.5, each Party shall promptly consult with the other Party to provide any contract necessary information with respect to (and, in the case of correspondence, provide the other Party (or agreement.
(bits counsel) copies of) all Filings made by such Party or any of its Affiliates with any Governmental Entity or any other information supplied by such Party or any of its Affiliates to, or correspondence with, a Governmental Entity in connection with this Agreement, the Transaction and the other transactions contemplated by this Agreement. Subject to the terms Confidentiality Agreement and conditions herein provided Section 5.5, each Party shall promptly inform the other Party, and without limiting if in writing, furnish the foregoingother Party with copies of (or, in the parties hereto shall (icase of oral communications, advise the other Party orally of) promptly, but in no event later than fifteen (15) Business Days after any communication received by such Party or any of its Affiliates or Representatives from any Governmental Entity regarding the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers Transaction and the other transactions contemplated by this Agreement, and use reasonable best efforts permit the other Party to cause review and discuss in advance, and consider in good faith the expiration or termination views of any applicable waiting periods under the HSR Act; (ii) use (and, other Party in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made connection with, any proposed communication with any such Governmental Entity. If either Party or consents, permits, authorizations, waivers, clearances, approvals, and expirations any Affiliate or terminations Representative of waiting periods are required to be obtained from, any third parties such Party receives a request for additional information or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to documentary material from any Governmental Entity as promptly as practicable any additional information with respect to the Transaction or documents that may be requested pursuant to any Law or the other transactions contemplated by this Agreement, then such Governmental Entity; and (iv) takeParty will make, or cause to be takenmade, promptly and after consultation with the other Party, an appropriate response in compliance with such request. Neither Party nor its respective Affiliates or its Representatives shall participate in any meeting with any Governmental Entity in connection with this Agreement and the Transaction or the other transactions contemplated by this Agreement (or make oral submissions at meetings or in telephone or other conversations) unless it 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 thereat. Subject to the Confidentiality Agreement and Section 5.5, each Party shall furnish the other Party with copies of all correspondence and Filings (and memoranda setting forth the substance thereof) between it or any of its Affiliates or Representatives, on the one hand, and any Governmental Entity, on the other actions hand, with respect to this Agreement and dothe Transaction or the other transactions contemplated by this Agreement, or cause and furnish the other Party with such necessary information and reasonable assistance as the other Party may reasonably request in connection with its preparation of Filings to be doneany such Governmental Entity. Purchaser and Seller may, all other things as each deems advisable and necessary, proper reasonably designate any competitively sensitive material provided to the other under this Agreement as “outside counsel only.” Such materials and the information contained therein shall be given only to the outside legal counsel and will not be disclosed by such outside counsel to employees, officers or advisable to consummate and make effective directors of the transactions contemplated herebyrecipient unless express permission is obtained in advance from the source of the materials (Purchaser or Seller, including taking (and, in as the case may be) or its legal counsel; provided, however, that materials provided pursuant to this Agreement may be redacted (i) to remove references concerning the valuation of Mars, Holdco or future plans for the Business or the Merger SubsSale Process, (ii) as necessary to comply with contractual obligations or applicable Law and (iii) as necessary to address reasonable privilege concerns.
(c) Without limiting the foregoing, (i) Purchaser and Seller shall, and shall cause each of their respective affiliates Affiliates to, file, as promptly as practicable, but in any event no later than twenty (20) Business Days after the date of this Agreement, a notification under the HSR Act and (ii) Purchaser and Seller shall, and shall cause their respective Affiliates to, file as promptly as practicable a notification under the Antitrust Laws of Germany and any other Filings under applicable Antitrust Laws, but in any event, any initial draft notifications of any other Filings shall be submitted no later than twenty-five (25) Business Days after the date of this Agreement.
(d) In furtherance of the foregoing, and notwithstanding anything in this Agreement to take) the contrary (but subject to the remainder of this Section 5.1(d)), Purchaser shall, and shall cause its Affiliates to, take all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any applicable Law that may be asserted by any Governmental Entity with respect to the Mergers transactions contemplated hereby and to resolve such objections, if any, as any Governmental Entity or any other Person may assert under any applicable Law with respect to the transactions contemplated hereby, so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than so as to enable the End Closing to occur prior to the Outside Date). In furtherance of the foregoing, including, without limitation, (x) proposing, negotiating, committing Purchaser shall proffer to and effectingagree to sell, by divest, lease, license, transfer, dispose of or otherwise encumber or hold separate, before or after the Closing, any assets, licenses, regulatory applications, operations, rights, product lines, businesses or interests therein of the Business or of Purchaser or its Affiliates (and consent decree, hold separate order or otherwise, the to any sale, divestiture divestiture, lease, license, transfer, disposition or disposition other encumbering by the Seller Entities of any assets of the Business or businesses to any agreement by any of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing the Seller Entities to take any of the foregoing actions) and agree to make any changes (including through a licensing arrangement) or restriction on, or other impairment of Purchaser’s ability to own, retain or operate, any such assets, licenses, regulatory applications, operations, rights, product lines, businesses or interests therein or Purchaser’s ability to vote, transfer, receive dividends, or otherwise exercise full ownership rights with respect to ownership interests in the Business or of Purchaser or its Affiliates, including any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement be taken to neutralize, mitigate or resolve any organizational conflict of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Dateinterest; provided that neither Galaxy nor any of (i) Purchaser and its Subsidiaries Affiliates shall become subject to, or consent not be obligated to take or agree to or otherwise take any action with respect to, any requirement, condition, understanding, to the foregoing unless the effectiveness of such agreement or order of a Governmental Authority action is conditioned upon the Closing and (ii) without prejudice to the foregoing, Seller and its Affiliates shall not take or agree or commit to take any action to sell, to divest, lease, license, transfer, dispose of or otherwise encumber or hold separate any Purchased Assets or otherwise dispose ofwith respect to the Business related to any Regulatory Approval without Purchaser’s written consent. Notwithstanding anything in this Agreement to the contrary, Seller and its Affiliates shall not be obligated to take or agree or commit to conduct, restrict, operate, invest take any action (A) that is not conditioned on the Closing or otherwise change the assets (B) that relates to any Excluded Assets or business of Galaxy Retained Businesses; and in no event shall Seller or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall Affiliates be required to take be the licensing, selling, divesting, leasing, transferring, disposing or encumbering party under any such agreements unless required by the relevant Governmental Entity or applicable Law, and, in any case, Seller and its Affiliates shall have no direct or indirect obligation or Liability in respect of the actions described in clauses (iv)(x) any such agreements, transactions or (y) above with respect to relationships, including any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdcoindemnification obligations, Mars, Galaxy for which Seller and their respective Subsidiaries, taken as a whole, at or after the Effective Timeits Affiliates are not fully indemnified by Purchaser.
(ce) Subject Purchaser agrees to applicable legal limitations provide such security and the instructions of any Governmental Entityassurances as to financial capability, Galaxy resources and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received creditworthiness as may be reasonably requested by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the or other third party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity whose Approval is sought in connection with the proposed transactions unless it 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.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers Transaction and the other transactions contemplated by this Agreement. Whether or not the Transaction is consummated, Purchaser shall be responsible for all fees and payments (including filing fees) to any third party or any Governmental Entity in order to obtain any Approvals pursuant to this Agreement, other than the fees of and payments to Seller’s legal and professional advisors.
(f) Notwithstanding anything in this Agreement to the contrary, none of Seller, the other Seller Entities or any of their respective Affiliates shall under any circumstance be required to pay or commit to pay any amount or incur any obligation in favor of or offer or grant any accommodation (financial or otherwise, regardless of any provision to the contrary in the underlying Contract, including any requirements for the securing or posting of any bonds, letters of credit or similar instruments, or the furnishing of any guarantees) to any Person to obtain any Approval. None of Seller, the other Seller Entities or any of their respective Affiliates shall have any Liability whatsoever to Purchaser or any of its Affiliates arising out of or relating to the failure to obtain any Approvals that may be required in connection with the Transaction and the other transactions contemplated by this Agreement or because of the termination of any Contract or any default under, or acceleration or termination of or loss of any benefit under, any Contract or other Purchased Asset as a result thereof. For the avoidance of doubt, Seller’s and its Affiliates’ obligations under this Section 5.1 shall be subject in all respects to the applicable provisions of Section 2.11.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Agios Pharmaceuticals, Inc.)
Efforts. (ad) Subject to From and after the terms date hereof, Purchaser and conditions set forth in this Agreement, each of the parties hereto Seller shall use all reasonable best efforts to take promptlytake, or cause to be taken, all actions, and to do promptlydo, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under any applicable Laws Law to consummate and make effective in the Mergers most expeditious manner possible the Transaction and the other transactions contemplated by this Agreement, including (i) obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals, the preparation and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making filing of all necessary forms, registrations and filings and notices required to be filed to consummate the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) obtaining all necessary consents, approvals or waivers from third parties, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers Transaction and the other transactions contemplated by this Agreement as soon as practicable and, with respect to Regulatory Approval under the Antitrust Laws of Mexico, in any event on or before August 12, 2013 and (ivii) the execution and delivery of any additional instruments necessary to consummate the Transaction and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement. Without limiting the foregoing, Purchaser and Seller shall use reasonable best efforts to take all actions necessary to obtain (and cooperating with each other in obtaining) any Regulatory Approvals (which actions shall include furnishing all information required in connection with such Approvals) required to be obtained or made by Purchaser, the other Purchaser Entities, Seller or the other Seller Entities in connection with the Transaction or the other transactions contemplated by this Agreement; provided. Additionally, however, each of Purchaser and Seller shall use their respective reasonable best efforts to fulfill all conditions precedent to this Agreement (including those set forth in Section 7.1) and shall not take any action after the date of this Agreement that in no event shall Galaxy would reasonably be expected to impair or any of its Subsidiariesmaterially delay the obtaining of, or Mars or result in not obtaining, any of its Subsidiaries or Holdco Regulatory Approval necessary to be required to pay obtained prior to the Effective Time Closing. To the extent that transfers of any fee, penalty Permits are required as a result of the execution of this Agreement or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract Transaction or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and the parties hereto shall use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) effect such transfers. Seller shall use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are obtain all Approvals required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation set forth on Section 3.3(a) of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective TimeSeller Disclosure Schedules.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers and the other transactions contemplated by this Agreement.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions set forth in of this Agreement, each of the parties hereto shall cooperate with the other parties and use all (and shall cause their respective Affiliates to use) their respective reasonable best efforts (unless, with respect to take promptlyany action, another standard of performance is expressly provided for herein) to promptly (i) take, or cause to be taken, all actions, and to do promptlydo, or cause to be done, and to assist and cooperate with the other parties hereto in doing, all things necessary, proper or advisable under applicable Laws to cause the conditions to Closing to be satisfied as promptly as reasonably practicable and to consummate and make effective the Mergers and the other transactions contemplated by this AgreementTransactions, including (i) obtaining preparing and filing promptly and fully all documentation to effect all necessary actions or nonactionsfilings, waiversnotices, consentspetitions, clearancesstatements, approvalsregistrations, submissions of information, applications and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entityother documents, (ii) obtaining obtain all necessary approvals, consents, approvals registrations, waivers, permits, authorizations, orders and other confirmations from any Governmental Authority or waivers from third partiesparty necessary to consummate the Transactions, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers execute and the other transactions contemplated by this Agreement and (iv) the execution and delivery of deliver any additional instruments necessary to consummate the transactions contemplated Transactions and (iv) defend or contest in good faith any Action brought by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any a third party for that could otherwise prevent or impede, interfere with, hinder or delay in any consent or approval required for material respect the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (andTransactions, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates clauses (i) through (iv), other than with respect to use) reasonable best efforts to cooperate with each filings, notices, petitions, statements, registrations, submissions of information, applications and other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearancesdocuments, approvals, and expirations or terminations of waiting periods are required to be obtained fromconsents, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consentsregistrations, permits, authorizations or approvals; (iiiand other confirmations relating to Regulatory Laws, which are dealt with in Sections 5.03(c) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (ivd) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Timebelow.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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.
(db) In furtherance and not in limitation of the covenants foregoing, the Company and Parent shall each (and Parent shall cause its Subsidiaries to) use its reasonable best efforts to (i) take all actions necessary to ensure that no Takeover Law is or becomes applicable to any of the parties contained in this Section 5.6Transactions and refrain from taking any actions that would cause the applicability of such Laws and (ii) if the restrictions of any Takeover Law become applicable to any of the Transactions, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened take all actions necessary to ensure that the Transactions may be instituted) challenging any transaction consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise lawfully minimize the effect of such Takeover Law on the Transactions.
(c) Each of the parties hereto shall (and Parent shall cause its Affiliates to) (i) make the appropriate filings (or draft filings, where applicable) or submissions under the required Regulatory Laws as violative promptly as reasonably practicable, and in any event no later than within 20 Business Days following the date of this Agreement and (ii) supply as promptly as reasonably practicable any Lawadditional information and documentary material that may be requested pursuant to such required Regulatory Laws. In furtherance of the above, each of Galaxy the parties hereto shall use its reasonable best efforts to cooperate with the other parties and Mars use (and shall cause its respective Subsidiaries to use) reasonable best efforts to avoid or eliminate each and every impediment and obtain all consents under any Regulatory Laws that may be required by any foreign or federal, state or local Governmental Authority, in each case with competent jurisdiction, so as to enable the parties hereto to consummate the Transactions as promptly as practicable. Without limiting the foregoing, Parent shall use its (and shall cause its Affiliates to use their respective) reasonable best efforts to secure the expiration or termination of any applicable waiting period and obtain any consent, clearance or approval required under any applicable Regulatory Laws. In furtherance of the foregoing, Parent shall use its reasonable best efforts to resolve any objections asserted with respect to the Transactions under any applicable Regulatory Law raised by any Governmental Authority, in order to prevent the entry of, or to have vacated, lifted, reversed or overturned, any Restraint that would prevent, prohibit, restrict or delay the consummation of the Transactions, including (A) executing settlements, undertakings, consent decrees, stipulations or other agreements with any Governmental Authority or with any other Person, (B) selling, divesting or otherwise conveying or holding separate particular assets or categories of assets or businesses of the Company and its Subsidiaries, (C) terminating existing relationships, contractual rights or obligations of the Company or Parent or their respective Subsidiaries, (D) terminating any joint venture or other arrangement of the Company and its Subsidiaries, (E) creating any relationship, contractual right or obligation of the Company or Parent or their respective Subsidiaries or (F) effectuating any other change or restructuring of the Company or Parent or their respective Subsidiaries (and, in each case, entering into agreements or stipulating to the entry of any Judgment by, or filing appropriate applications with any Governmental Authority in connection with any of the foregoing) and, in the case of actions by or with respect to the Company, by consenting to such action by the Company (including any consents required under this Agreement with respect to such action) (each of (A) to (F), a “Remedial Action”); provided, that the Company shall not take any of the foregoing actions without Parent’s prior written consent (which shall not be unreasonably withheld, delayed or conditioned). Without limiting the foregoing, Parent and the Company shall respond to and seek to resolve as promptly as reasonably practicable any objections asserted by any Governmental Authority with respect to the Transactions. Nothing in this Agreement shall require any party or its Affiliates to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned on the Closing. Parent shall (1) direct the strategy for obtaining any approvals, consents, registrations, waivers, permits, authorizations, orders and other confirmations from any Governmental Authority in connection with the Transactions and (2) develop, in good faith cooperation with the Company, the positions to be taken and the regulatory actions to be requested in any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither Parent nor the Company shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under any Regulatory Laws or enter into a timing agreement with any Governmental Authority, or withdraw its initial filing pursuant to any Regulatory Law, as the case may be, and refile any of them, without the prior written consent of the other party. In furtherance and not in limitation of this Section 5.03(c) and Section 5.03(d), the parties hereto shall use reasonable best efforts to defend through litigation any claim asserted in court by any Person, including any Governmental Authority, under any Regulatory Laws in order to avoid entry of, or to have vacated or terminated, any Judgment (whether temporary, preliminary or permanent) that could restrain, delay or prevent the Closing.
(d) Each of the parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, (ii) keep the other parties hereto informed in all substantive respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, any Governmental Authority and of any substantive communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Affiliates, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions subject to the qualifications applicable to clause (iv), and (iv) to the extent permitted by such applicable Governmental Authority or other Person, give the other parties hereto the opportunity to attend and participate in such meetings and conferences. Parent and the Company shall have the right to review in advance all written materials submitted to any Governmental Authority in connection with the Transactions, in each case to the extent such materials or communications are related to any Regulatory Laws; provided, that any such materials may be redacted (A) to remove references concerning the valuation of, other bidders for, or the assessment of other strategic alternatives available to, the Company, (B) as necessary to comply with contractual arrangements or applicable Law and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that a party may reasonably designate any competitively sensitive material provided to another party under this Section 5.03(d) as “Outside Counsel Only”, in which case such materials and the information contained therein shall be given only to outside counsel of the recipient and shall not be disclosed by such outside counsel to employees, officers or directors of the recipient without the advance written consent of the party providing such materials.
(e) Without limiting Section 5.03(c), in the event that any Action is commenced challenging the Merger and Transactions and such Action seeks, or would reasonably be expected to seek, to prevent consummation of the Merger and the Transactions, the Company, Parent and Merger Sub shall use their respective reasonable best efforts to contest take any and resist all action to resolve any such action or proceeding Action and each of the Company, Parent and Merger Sub shall cooperate with each other to contest any such Action 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 Mergers Merger and the Transactions.
(f) From the date of this Agreement until the Closing Date or earlier termination in accordance with Article VII, without the prior written consent of the Company, Parent and Merger Sub shall not, and Baring Private Equity Asia Fund VIII L.P. shall not, acquire or agree to acquire any rights, assets, business, Person or division thereof (through acquisition, license, joint venture, collaboration or otherwise), if such acquisition would reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining any applicable clearance, consent, approval, waiver, waiting period expiration or termination, non-action or other transactions contemplated authorization, or cause Parent, Merger Sub or the Company to be required to obtain any additional clearance, consent, approval, waiver, waiting period expiration or termination, non-action or other authorization, under applicable Regulatory Laws with respect to the Merger and the Transactions, (ii) materially increase the risk of any Governmental Authority entering an order prohibiting the Transactions, or(iii) prevent or materially delay the consummation of the Transactions, including the Merger.
(g) Notwithstanding anything to the contrary herein, subject to the proviso in this sentence, nothing in this Section 5.03 shall require Parent to take or agree to, or cause any of its Affiliates (other than Merger Sub or any of its other Subsidiaries, if any) to take or agree to, any Remedial Action or other action specified in this Section 5.03 with respect to EQT AB, any investment funds or investment vehicles affiliated with, or managed or advised by, EQT AB or its Affiliates or any portfolio company (as such term is commonly understood in the private equity industry) or investment of EQT AB or of any such investment fund or investment vehicle, or interest therein under this Section 5.03, in each case, other than with respect to (x) the Company and its Subsidiaries or (y) the assets, properties, business, operations or ownership of any of the Company and its Subsidiaries; provided, that, notwithstanding the foregoing, (i) nothing in this Section 5.03 shall qualify or limit in any respect the obligations of Parent and Merger Sub to (and to cause its Affiliates to cooperate and provide information in order for Parent and Merger Sub to) (A) make any necessary filings with or submissions to, or supply information or documentation to, or engage in communications with, Governmental Authorities as required by this AgreementSection 5.03 and (B) obtain all necessary information, documentation or cooperation required from its Affiliates in order to comply with Parent’s and Merger Sub’s obligations under this Section 5.03 and (ii) any determination as to Parent’s and Merger Sub’s compliance with its obligations under this Section 5.03 shall be made without regard to the ability of Parent to control the applicable Affiliate.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall use all its commercially reasonable best efforts (subject to, and in accordance with, applicable Law) to take promptly, or to cause to be taken, all actions, and to do promptly, or to cause to be done, and to assist and to cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Mergers Transaction and the other transactions contemplated by this Agreementhereby, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, consents and approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Regulatory Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement hereby and (iv) the execution and delivery of any additional instruments reasonably necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreementhereby.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto Company and the Buyer shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and use commercially reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations waivers or terminations of waiting periods approvals are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining seeking all such consents, permits, authorizations or approvals; , including but not limited to approvals from the Food and Drug Administration (iiithe "REGULATORY APPROVALS"), (ii) supply use commercially reasonable efforts to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or to cause to be taken, all other actions and to do, or to cause to be done, all other things necessary, proper or advisable to consummate the Transaction and make effective the other transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as reasonably may be necessary promptly to resolve such objections, if any, as by any Governmental Entity in connection with the United States Federal Trade CommissionRegulatory Approvals, the Antitrust Division of the United States Department of Justice, or other state antitrust enforcement authorities or competition federal regulatory authorities of any other nation or other jurisdiction or any other person may assert under any Regulatory Law with respect to the Transaction and the other transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers hereby so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (xiii) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other reasonably apprised of the status of matters relating to the completion of the transactions contemplated therebyby this Agreement, including to the extent permitted by Law promptly furnishing the other with true and complete copies of notices or other communications sent or received by Galaxy the Company or Marsthe Buyer, as the case may be, to or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect thereto, and permit the other to review in advance any proposed communication by such transactionsparty to any supervisory or Governmental Entity and (iv) give the other reasonable notice of, and, to the extent permitted by such Governmental Entity, allow the other to attend and participate at any meeting with any Governmental Entity in respect of any filings, investigation or other inquiry or proceeding relating thereto. Galaxy The Company and Mars the Buyer shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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.
(dc) In Subject to the rights of the Buyer in SECTION 6.8, and in furtherance and not in limitation of the covenants of the parties contained in this Section 5.6SECTION 6.5, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging the Transaction or any other transaction contemplated by this Agreement as violative of any LawAgreement, each of Galaxy the Company and Mars the Buyer shall cooperate in all respects with each other and shall use their respective commercially reasonable best efforts to contest and resist any such 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 Mergers and the Transaction or any other transactions contemplated by hereby. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this SECTION 6.5 shall limit a party's right to terminate this Agreement pursuant to SECTION 8.1(b)(i) or (ii) so long as such party has, prior to such termination, complied with its obligations under this SECTION 6.5.
(d) For purposes of this Agreement, "REGULATORY LAW" means any and all state, federal and foreign statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other Laws requiring notice to, filings with, or the consent or approval of, any Governmental Entity, or that otherwise may cause any restriction, in connection with the Transaction and the transactions contemplated thereby, including (i) any Law governing the direct or indirect ownership or control of any of the operations or assets (including the Acquired Assets) of the Company or (ii) any Law with the purpose of protecting the national security or the national economy of any nation.
Appears in 1 contract
Sources: Asset Purchase Agreement (Ivivi Technologies, Inc.)
Efforts. (a) Subject to the terms and conditions set forth in of this Agreement, each of Seller and Purchaser will, and will cause their Guarantors and the parties hereto shall subsidiaries of their respective Guarantors to, cooperate with each other and use all their respective commercially reasonable best efforts to take promptly, or cause to be taken, all actions, and to do promptly, or cause to be done, and to assist and cooperate with consummate the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Mergers and the other transactions contemplated by this AgreementAgreement prior to the Outside Date, including using commercially reasonable efforts to: (i) obtaining transfer or assign to, or have issued or reissued in the name of, Purchaser all necessary Transferred Permits; provided, that if the transfer or assignment, issuance or reissuance of such Transferred Permits cannot be completed until after the Closing Date or is not required to be completed until after the Closing Date pursuant to applicable Law, Purchaser and Seller shall continue to take commercially reasonable efforts to complete the transfer, assignment, issuance or reissuance of such Transferred Permits after the Closing Date; (ii) obtain all actions or nonactionsnon-actions, consents, approvals, registrations, waivers, consentspermits, clearancesauthorizations, approvalsorders, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, other confirmations from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, Authority necessary for the consummation of the transactions contemplated by this Agreement (ii) obtaining all necessary consents, approvals or waivers from third parties, each a “Consent”); (iii) defending prepare and make, as promptly as reasonably practicable, all registrations, filings, forms, notices, petitions, statements, submissions of information, applications and other documents with any Governmental Authorities necessary for the consummation of the transactions contemplated by this Agreement; (iv) supply as promptly as reasonably practicable any additional information and documentary material that may be requested in connection with any Consent or any Antitrust Law (including pursuant to a “second request,” civil investigative demand or similar request pursuant to the HSR Act or any other Antitrust Law); and (v) defend, contest and resist any lawsuits or other legal proceedingsProceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, howeverincluding through pursuing litigation on the merits, seeking to have promptly vacated, lifted, reversed or overturned any Order, whether temporary, preliminary or permanent, that in no event shall Galaxy would delay, impede, prohibit or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for make unlawful the consummation of the transactions contemplated by this Agreement prior to the Outside Date, and pursuing avenues of administrative and judicial appeals thereof. Each of the Parties shall, and, as applicable, shall cause its Affiliates to, in consultation and cooperation with the other Party and as promptly as reasonably practicable (but in no event later than twenty (20) Business Days following the date of this Agreement, unless a later date is agreed in writing by the Parties), make its respective filings under the HSR Act. Each Party shall not, and shall cause their Guarantors and the subsidiaries of their respective Guarantors not to, without the prior written consent of the other Party (such consent not to be unreasonably withheld, conditioned or delayed), (A) “pull-and-refile,” pursuant to 16 C.F.R. § 803.12, any contract filing made under the HSR Act or agreement(B) enter into any timing agreement with any Governmental Authority to delay the consummation of, or not to close before a certain date, any of the transactions contemplated by this Agreement.
(b) Purchaser shall have the right to devise, control and direct the strategy and timing for, and make all material decisions relating to (and shall take the lead in all meetings and communications with any Governmental Authority relating to), obtaining any Consent contemplated by this Section 5.1, including defending and resolving any lawsuits or other Proceedings related to any such Consent; provided that Purchaser shall consult with Seller and consider its views in good faith. Each of the Parties shall, and shall cause its Affiliates to, provide to the other Party in advance for its review, consult and cooperate with the other Party with respect to, and consider in good faith the other Party’s comments in connection with, any proposed analyses, appearances, presentations, white papers, advocacy materials, memoranda, briefs, arguments, opinions and proposals made or submitted by, or on behalf of, such Party in connection with any request, inquiry or investigation by any Governmental Authority in connection with Antitrust Laws or any lawsuits or other Proceedings under or relating to any Antitrust Laws. Without limiting the foregoing, the Parties agree, and shall cause their Affiliates, (i) to furnish to the other such information and assistance as the other may reasonably request in connection with obtaining any Consent or any lawsuits or other Proceedings under or relating to Antitrust Laws, (ii) to give each other reasonable advance notice of all meetings with any Governmental Authority relating to any Antitrust Laws, (iii) to the extent permitted by such Governmental Authority, give each other an opportunity to participate in each of such meetings, (iv) to the extent practicable, to give each other reasonable advance notice of all substantive oral communications with any Governmental Authority relating to any Antitrust Laws, (v) if any Governmental Authority initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other Party of the substance of such communication, (vi) to provide each other with a reasonable advance opportunity to review and comment upon, and to consider in good faith the other Party’s comments in connection with, all substantive written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Authority relating to any Antitrust Laws and (vii) to provide each other with copies of all substantive written communications to or from any Governmental Authority relating to any Antitrust Laws. Each Party may, as it deems advisable and necessary, reasonably designate material provided to the other Party as “Outside Counsel Only Material,” and also may redact the material as necessary to (A) remove personally sensitive information; (B) remove references concerning valuation; (C) comply with contractual arrangements; (D) address legal privilege or other confidentiality concerns; or (E) comply with applicable Law.
(c) Notwithstanding the foregoing, nothing in this Agreement shall require, or be construed to require, Purchaser or any of its Affiliates (i) to agree to or to sell, license, hold separate, divest, dispose of, discontinue, encumber, limit or otherwise take any action (including agreeing to or otherwise implementing any “behavioral remedies”) with respect to Purchaser’s or any of its Affiliates’ ability to own or operate or otherwise conduct the business of (A) any assets, properties, businesses, products or rights of Purchaser or any of its Affiliates or (B) the Purchased Assets, the Facility or the Business or (ii) agree to or otherwise implement any modification or waiver of the terms and conditions of this Agreement or the other Transaction Agreements or the transactions contemplated hereby or thereby.
(d) Subject to the terms and conditions herein provided of this Agreement, each Party agrees to use its commercially reasonable efforts to obtain any other consents, approvals and without limiting authorizations from Persons not contemplated by Section 5.1(a) and otherwise not related to Antitrust Laws that may be required in connection with the transactions contemplated by this Agreement. Notwithstanding any other provision of this Agreement to the contrary, but subject to the remaining provisions of this Section 5.1(d), this Agreement shall not constitute an agreement to contribute, convey, assign, transfer or deliver to Purchaser any Purchased Assets or any claim or right or any benefit arising thereunder or resulting therefrom, or the assumption of any Assumed Liabilities, if a contribution, conveyance, assignment, transfer, delivery or assumption thereof, or an agreement to do any of the foregoing, without the parties hereto consent of Persons not contemplated by Section 5.1(a), would constitute a breach or other contravention of obligations to such Person or be ineffective or a violation of Law. ▇▇▇▇▇▇ agrees that in the event that any such consent, approval or authorization is not obtained prior to the Closing, Seller shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (Closing, cooperate with Purchaser in attempting to obtain such consent, approval or authorization as promptly thereafter as practicable. If any consent, approval or authorization that cannot be obtained relates to a Purchased Contract, Seller shall, and shall cause its Affiliates to, hold the Purchased Contract in trust for Purchaser and provide Purchaser with the rights and benefits of such later date Purchased Contract for the term of such Purchased Contract, and, to the extent Seller provides such rights and benefits, Purchaser shall assume all obligations and burdens thereunder. For so long as may be mutually agreed Seller is holding such Purchased Contract in writing by trust for Purchaser, Seller shall act only in accordance with the parties hereto)directions of Purchaser with respect to such Purchased Contract, file and Seller shall indemnify and hold harmless Purchaser for any and all required Notification and Report Forms under Losses arising out of any Third Party Claim resulting from any breach or alleged breach of any such Purchased Contract listed on Schedule I Part B as a result of the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, including the arrangements contemplated in this Section 5.1(d). Notwithstanding the foregoing, any such Contract shall be contributed, conveyed, assigned, transferred and use reasonable best efforts delivered to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, assumed by Purchaser at such time in the case of Marsfuture as the requisite Third Party consent is obtained (or no longer required).
(e) Purchaser agrees that, Holdco or between the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery date of this Agreement and the earlier of the Closing and the date that this Agreement is terminated in accordance with Article VII, it shall not, and shall ensure that none of Purchaser's Guarantor or any of its subsidiaries shall, consummate or enter into any agreement providing for, any investment or acquisition that would reasonably be expected to materially delay or prevent the satisfaction of any of the closing conditions set forth in Article VI or the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers and the other transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (CF Industries Holdings, Inc.)
Efforts. (a) Subject to From and after the terms date hereof, Purchaser and conditions set forth in this Agreement, each of the parties hereto Seller shall use all reasonable best efforts to take promptlytake, or cause to be taken, all actions, actions and to do promptlydo, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under any applicable Laws Law to consummate and make effective in the Mergers most expeditious manner possible (and, in any event, prior to the Outside Date) the Transaction and the other transactions contemplated by this Agreement, including (i) obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals, the preparation and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making filing of all necessary forms, registrations and filings and notices required to be filed to consummate the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) obtaining all necessary consents, approvals or waivers from third parties, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers Transaction and the other transactions contemplated by this Agreement as soon as practicable and advisable and (ivii) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers Transaction and the other transactions contemplated by this Agreement, Agreement and use reasonable best efforts to cause fully carry out the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery purposes of this Agreement Agreement. Without limiting the foregoing, Purchaser and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) Seller shall take, or cause to be taken, all other actions and do, or cause necessary to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible obtain (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action shall cooperate with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly in obtaining) any Antitrust Approvals (which actions shall include furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity all information required in connection with the proposed transactions unless it 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.
(dAntitrust Approvals) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened required to be institutedobtained to satisfy the conditions set forth in Section 7.1(a) challenging (if the injunction, restraint or other Order relates to any transaction contemplated by this Agreement as violative of any Antitrust Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 consummate the Mergers Transaction and the other transactions contemplated by this Agreement. Additionally, and without limiting the specific other obligations of the Parties set forth in this Agreement, each of Purchaser and Seller shall use its reasonable best efforts to fulfill all conditions precedent to this Agreement and shall not take, or permit any of its Affiliates to take, any action after the date of this Agreement that would reasonably be expected to prevent, impair or materially delay the Closing.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall use (and shall cause their respective Subsidiaries and Affiliates to use) all reasonable best efforts to take promptly, or cause to be taken, all actions, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Mergers Merger and the other transactions contemplated by this AgreementAgreement prior to the End Date, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, approvals and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any Actions, lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers Merger and the other transactions contemplated by this Agreement Agreement, including seeking to have any stay, temporary restraining order or injunction entered by any court or other Governmental Entity vacated or reversed and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars the Company or any of its Subsidiaries or Holdco be required (nor, without the prior written consent of Parent, shall the Company and its Subsidiaries be permitted) to pay prior to the Effective Time any fee, penalty or other consideration (other than customary filing and notification fees with Governmental Entities and other nominal amounts) to any third party for any consent or approval required for or triggered by the consummation of the transactions contemplated by this Agreement under any contract or agreementagreement or otherwise.
(b) Subject to the terms and conditions herein provided in this Agreement and without limiting the foregoing, the parties hereto Company and Parent shall (and shall cause their respective Subsidiaries and Affiliates to) (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto)hereof, file or cause to be filed any and all required Notification notification and Report Forms report forms under the HSR Act with respect to the Mergers Merger and the other transactions contemplated by this Agreement, and use all reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; , (ii) use (and, in the case of Mars, Holdco supply or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply supplied to any Governmental Entity as promptly as practicable any additional information or documents documentary material that may be requested pursuant to any Law or by such Governmental Entity; Entity and (iviii) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated herebyby this Agreement, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction authorities, or any other person Governmental Entity or Person may assert under any Law with respect to the Merger and the other transactions contemplated herebyby this Agreement, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers Merger so as to enable the Closing to occur as soon promptly as reasonably possible practicable after the date hereof (and in any event no later than the End Date), including, without limitation, including (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture divestiture, license, hold separate or disposition of any and all of the share capital or other equity voting interest, assets (whether tangible or businesses intangible), businesses, divisions, operations, products or product lines of Mars, Holdco Parent or their respective its Subsidiaries or affiliates, Affiliates or of Galaxy the Company or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco Parent’s or its Subsidiaries’ (including the Surviving Corporations’Corporation’s) or affiliatesAffiliates’ freedom of action with respect to, or its their ability to retain, one or more of its or its their Subsidiaries’ (including the Surviving Corporations’) Corporation’s), assets (whether tangible or intangible), businesses, divisions, operations, products or product lines or assetslines, in each case as may be required in order to satisfy the conditions to Closing or to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which Action that would otherwise have the effect of preventing the Closing, materially delaying the Closing in any material respect or delaying the Closing beyond the End DateDate (individually or collectively, a “Remedial Action”); provided provided, that neither Galaxy the Company, Parent nor any of its their respective Subsidiaries shall be required to become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to divest, license, hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets (whether tangible or business intangible), businesses, divisions, operations, products or product lines of Galaxy the Company, Parent or any of its Subsidiariestheir respective Affiliates, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in conditioned upon the event that occurrence of the Closing occursor is or becomes effective on or after the Closing; provided that none further that, notwithstanding anything in this Agreement to the contrary, nothing in this Section 5.7 or any other provision of Mars, Holdco this Agreement shall require any of Parent or the Merger Subs shall be required any of its Affiliates to take (A) waive any of the actions described conditions set forth in clauses (iv)(x) Article 6 as they apply to Parent or Merger Sub or (yB) above agree or otherwise be required to, take any action, including any Remedial Action that, individually or in the aggregate together with respect one or more other Remedial Actions, would reasonably be expected to any have a material adverse effect on the business, operations or financial condition of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of HoldcoParent, Marsthe Company, Galaxy and their respective Subsidiaries, taken as a wholewhole and after giving effect to the Merger (it being understood that, at for purposes of determining pursuant to this clause (B) whether such Remedial Action would reasonably be expected to have such a material adverse effect (aa) Parent, the Company and their respective Subsidiaries, taken as a whole and after giving effect to the Merger, shall be deemed to be the same size as the Company and its Subsidiaries, taken as a whole and prior to giving effect to the Merger, and (bb) any proceeds received, or after expected to be received, from effecting any Remedial Action shall not be taken into consideration). Without limiting Parent’s obligations under this Section 5.7, in no event shall the Effective TimeCompany propose, negotiate, effect or agree to any Remedial Action without the prior written consent of Parent. Except as otherwise permitted under this Agreement, the Company, Parent and Merger Sub shall not (and shall cause their Subsidiaries and Affiliates not to) make, or agree to make, any acquisition, or knowingly take, or agree to take, any other action outside the ordinary course of business consistent with past practice, in each case, that would be reasonably likely to prevent or materially delay the Closing.
(c) Subject The Company, Parent and Merger Sub shall cooperate and consult with each other in connection with the making of all registrations, filings, notifications, communications, submissions and any other actions pursuant to this Section 5.7(c), and, subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy the Company, on the one hand, and Mars Parent and Merger Sub, on the other hand, shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated therebyby this Agreement, including promptly furnishing the other with copies of notices or other communications received by Galaxy the Company or MarsParent, as the case may be, or any of their respective SubsidiariesSubsidiaries or Affiliates, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy Subject to applicable Law relating to the exchange of information, the Company, on the one hand, and Mars Parent and Merger Sub, on the other hand, shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed notifications or filings and any written communications or submissions, and with respect to any such notification, filing, written communication or submission, any documents submitted therewith to any Governmental Entity; provided, however, that materials may be redacted (x) to remove references concerning the valuation of the businesses of the Company and its Subsidiaries, or proposals from third parties with respect thereto, (y) as necessary to comply with contractual agreements and (z) as necessary to address reasonable privilege or confidentiality concerns. The parties, as they deem advisable and necessary, may designate any competitively sensitive material provided to the other under this Section 5.7(c) as “Antitrust Counsel Only Material,” and such materials and the information contained therein shall be given only to outside antitrust counsel of the recipient and will not be disclosed to other Representatives of the recipient unless express written permission is obtained in advance from the source of the materials or its legal counsel. Each of Galaxy the Company, P▇▇▇▇▇ and Mars M▇▇▇▇▇ Sub agrees not to participate in any substantive meeting or discussion, either in person Person, by videoconference, or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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.
(d) The Company and Parent shall jointly develop and cooperate with one another with respect to developing the (i) strategy and timing for obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals and expirations or terminations of waiting periods, including the Specified Approvals and the Parent Approvals, (ii) response to any request from, inquiry by, or investigation by (including the timing, nature and substance of all such responses) any Governmental Entity with respect to the Merger and the other transactions contemplated by this Agreement and (iii) strategy for the defense and settlement of any action brought by or before any Governmental Entity that has authority to enforce the applicable antitrust Laws; provided, in the event of any conflict or disagreement between the Company and Parent with respect to clauses (i), (ii) and (iii) above, Parent shall have the right to direct the matter that is the cause of any such conflict or disagreement, acting reasonably and following consultation with the Company and after considering in good faith all comments and advice of the Company (and its counsel).
(e) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.65.7, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, subject to the limitations set forth in the other provisions of this Section 5.7 (including Section 5.7(b)), each of Galaxy the Company, Parent and Mars Merger Sub shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such action Action or proceeding and to have vacated, lifted, reversed or overturned any Action, decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Mergers Merger and the other transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Merger Agreement (L3harris Technologies, Inc. /De/)
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall use all its reasonable best efforts to take promptlytake, or to cause to be taken, all actions, to file, or cause to be filed, all documents and to do promptlydo, or to cause to be done, and to assist and to cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective effective, as promptly as practicable, the Mergers Offer and Merger and the other transactions contemplated by this Agreementhereby, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Company Approvals and the Mars Specified Parent Approvals, from Governmental Entities Authorities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance clearance, or waiver from, or to avoid an action or proceeding by, any Governmental EntityAuthorities, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, including a waiver by the lenders of the change of control and merger restrictions contained in the Fourth Amended and Restated Credit Agreement among the Company, Citibank, N.A., BNP Paribas and the lenders thereunder, dated as of May 16, 2008, as amended, (iii) the giving of notice, if required, under real property leases, (iv) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers Offer or the Merger and the other transactions contemplated by this Agreement hereby and (ivv) the execution and delivery of any additional instruments reasonably necessary to consummate the transactions contemplated by this Agreement; providedhereby. In furtherance of the foregoing, howeverthe Company may, that but in no event shall Galaxy or any of its Subsidiaries, or Mars the Company or any of its Subsidiaries or Holdco be required to to, pay prior to the Effective Time Board Appointment Date any fee, penalty penalties or other consideration to any third party for to obtain any consent or approval required for the consummation of the transactions contemplated by this Agreement under Offer or the Merger. No party hereto shall take any contract action that would reasonably be expected to prevent or agreementmaterially delay or impede the receipt of any necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Company Approvals and the Parent Approvals, from Governmental Authorities.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, if required under the parties hereto HSR Act, the Company and Parent shall (i) promptly, but in no event later than fifteen (15) 5:30 p.m. Eastern Daylight Savings time on the fifth Business Days Day after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto)of this Agreement, file any and all required Notification and Report Forms required under the HSR Act with respect to the Mergers Offer, the Merger and the other transactions contemplated by this Agreementhereby, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; , (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizationsAuthorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities Authorities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations Authorizations or approvals; , (iii) supply to any Governmental Entity Authority as promptly as practicable any additional information or documents documentary material that may be requested pursuant to any Regulatory Law or by such Governmental Entity; Authority, and (iv) use reasonable best efforts to take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the Offer, the Merger and the other transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Each of Parent and the Company shall, upon request by the other, furnish the other with all information concerning itself, its Subsidiaries, directors, officers and equityholders, and such other matters as may be reasonably necessary or advisable in connection with any statement, filing, notice or application made by or on behalf of Parent, the Company or any of their respective Subsidiaries to any third party and/or any Governmental Authority in connection with the Merger and the transactions contemplated by this Agreement. Subject to applicable legal limitations and the instructions of any Governmental EntityAuthority, Galaxy the Company and Mars Parent shall keep each other apprised of the status of matters relating to the completion of the Offer, the Merger and the other transactions contemplated therebyby this Agreement, including promptly furnishing the other with copies of notices or other communications received by Galaxy the Company or MarsParent, as the case may be, or any of their respective SubsidiariesSubsidiaries or Affiliates, from any third party and/or any Governmental Entity Authority with respect to such Merger or transactions. Galaxy The Company and Mars Parent shall permit provide counsel for the other party a reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental EntityAuthority. Each of Galaxy the Company and Mars Parent agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity Authority in connection with the proposed transactions unless it consults with the other party in advance and, to the extent not prohibited by such Governmental EntityAuthority, gives the other party the opportunity to attend and participate.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.66.10, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging the Offer, the Merger or any other transaction contemplated by this Agreement as violative of any Regulatory Law, each of Galaxy the Company and Mars Parent shall cooperate in all respects with each other and shall use their its respective reasonable best efforts to contest and resist any such 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 Mergers Offer, the Merger or any other transaction contemplated hereby.
(e) For purposes of this Agreement, “Regulatory Law” means any and all state, federal and foreign statutes, rules, Regulations, orders, decrees, administrative and judicial doctrines and other Laws requiring notice to, filings with, or the consent, clearance or approval of, any Governmental Authority, or that otherwise may cause any restriction, in connection with the Offer, the Merger and the other transactions contemplated by this Agreementthereby, including (i) the ▇▇▇▇▇▇▇ Act of 1890, the ▇▇▇▇▇▇▇ Antitrust Act of 1914, the HSR Act, the Federal Trade Commission Act of 1914 and all other Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening competition through merger or acquisition, (ii) any Law governing the direct or indirect ownership or control of any of the operations or assets of the Company and its Subsidiaries or (iii) any Law with the purpose of protecting the national security or the national economy of any nation.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each Each of the parties hereto shall agrees to use all its commercially reasonable best efforts to take promptly, or cause to be taken, all actions, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Mergers and the other transactions contemplated by this Agreement, including (i) obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) obtaining all necessary consents, approvals or waivers from third parties, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and to do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective as promptly as practicable the transactions contemplated hereby and to cooperate with the other in connection with the foregoing, including using its commercially reasonable efforts (i) to obtain all necessary waivers, consents and approvals from other parties to the Contracts listed in Exhibit 7.2(c)(i) or such other parties as Purchaser may reasonably request (it being understood and agreed that Sellers shall not be required to make any payment or furnish any other consideration to obtain any such consent) and to send notices to customers and data source providers in the manner required in any Acquired Customer Contract or Acquired Data Sourcing Contract, (ii) subject to Sections 5.2(b) and 5.2(c), to obtain all consents, approvals and authorizations that are required to be obtained under any federal, state, local or foreign law or regulation (it being understood and agreed that except with respect to registration and filing fees, Sellers and Purchaser shall not be required to make any payment or furnish any other consideration or make any accommodation to obtain any such consent, approval or authorization), (iii) subject to Section 5.2(c), to lift or rescind any injunction or restraining order or other order adversely affecting the ability of the parties hereto to consummate the transactions contemplated hereby, including taking (andiv) to effect all necessary registrations and filings, in if any and (v) to fulfill all conditions to this Agreement. Sellers and Purchaser further covenant and agree, with respect to any threatened or pending preliminary or permanent injunction or other order, decree or ruling or statute, rule, regulation or executive order that would adversely affect the ability of the parties hereto to consummate the transactions contemplated hereby, to use their respective commercially reasonable efforts to prevent the entry, enactment or promulgation thereof, as the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to takemay be.
(b) all such further action as may be necessary promptly to resolve such objections, if anySellers and Purchaser shall, as promptly as practicable and before the expiration of any relevant legal deadline, but in no event later than five Business Days following the execution and delivery of this Agreement, file with (i) the United States Federal Trade Commission, Commission (the Antitrust Division of “FTC”) and the United States Department of JusticeJustice (“DOJ”), state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the notification and report form required for the transactions contemplated hereby, hereby and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect supplemental information requested in connection therewith pursuant to the Mergers so HSR Act, which forms shall specifically request early termination of the waiting period prescribed by the HSR Act and (ii) any other Governmental Entity, any other filings, reports, information and documentation required for the transactions contemplated hereby pursuant to any other Antitrust Laws. Each of Sellers and Purchaser shall furnish to each other’s counsel such necessary information and reasonable assistance as to enable the Closing to occur as soon as reasonably possible (and other may request in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition connection with its preparation of any assets filing or businesses of Mars, Holdco or submission that is necessary under the HSR Act and any other Antitrust Laws. Sellers and Purchaser shall each bear their respective Subsidiaries or affiliatesexpenses and fees incurred and payable in connection with such filings; in that regard, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after Purchaser, shall pay the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Timeapplicable HSR Act filing fee.
(c) Subject Sellers and Purchaser shall use their commercially reasonable efforts to applicable legal limitations obtain promptly any clearance required under the HSR Act and any other Antitrust Laws for the consummation of this Agreement and the instructions of any Governmental Entity, Galaxy transactions contemplated hereby and Mars shall keep each other apprised of the status of matters relating any communications with, and any inquiries or requests for additional information from, the FTC and the DOJ and any other Governmental Entity and shall comply promptly with any such inquiry or request; provided, however, that Purchaser shall not be required to consent to the completion divestiture or other disposition of any of its or its Affiliates’ assets or to any other structural or conduct relief and Purchaser and its Affiliates shall have no obligation to contest, administratively or in court, any ruling, order or other action of any Governmental Entity respecting the transactions contemplated therebyby this Agreement; provided, including further, however, that Sellers and Purchaser shall both promptly furnishing respond to the DOJ or the FTC to a Request for Additional Information. In addition, each party shall furnish promptly to any other with copies party upon request a copy of notices each report, schedule and other document filed or other communications received by Galaxy it pursuant to the requirements of any applicable law or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or filed by telephone, it with any Governmental Entity in connection with this Agreement and the proposed transactions unless it 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 participatecontemplated hereby.
(d) In furtherance Sellers and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened Purchaser hereto commit to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall instruct their respective counsel to cooperate in all respects with each other and shall use their respective commercially reasonable best efforts to contest facilitate and resist expedite the identification and resolution of any such action or proceeding issues and, consequently, the expiration of the applicable HSR Act waiting period and the waiting periods under any other Antitrust Laws at the earliest practicable dates. Said commercially reasonable efforts and cooperation include, but are not limited to, counsel’s undertaking (i) to keep each other appropriately informed of communications from 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 personnel of the Mergers reviewing antitrust authority, and the (ii) to confer with each other transactions contemplated by this Agreementregarding appropriate contacts with and response to personnel of said antitrust authority whether orally or in writing.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Interactive Data Corp/Ma/)
Efforts. (a) Subject to From and after the terms date hereof, Purchaser and conditions set forth in this Agreement, each of the parties hereto Seller shall use all reasonable best efforts to take promptlytake, or cause to be taken, all actions, and to do promptlydo, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under any applicable Laws Law to consummate and make effective in the Mergers most expeditious manner possible the Transaction and the other transactions contemplated by this Agreement, including (i) obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals, the preparation and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making filing of all necessary forms, registrations and filings and notices required to be filed to consummate the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) obtaining all necessary consents, approvals or waivers from third parties, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers Transaction and the other transactions contemplated by this Agreement as soon as practicable and (ivii) the execution and delivery of any additional instruments necessary to consummate the Transaction and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement. Without limiting the foregoing, Purchaser and Seller shall use their reasonable best efforts to take all actions necessary to obtain (and shall cooperate with each other in obtaining) any Regulatory Approvals (which actions shall include furnishing all information required in connection with such Approvals) required to be obtained or made by Purchaser, Seller, the other Seller Entities or the Purchased Entities in connection with the Transaction or the other transactions contemplated by this Agreement; provided. Additionally, however, each of Purchaser and Seller shall use their respective reasonable best efforts to fulfill all conditions precedent to this Agreement (including those set forth in Section 7.1) and shall not take any action after the date of this Agreement that in no event shall Galaxy would reasonably be expected to impair or any of its Subsidiariesmaterially delay the obtaining of, or Mars or result in not obtaining, any of its Subsidiaries or Holdco Regulatory Approval necessary to be required to pay obtained prior to the Effective Time Closing. To the extent that transfers of any fee, penalty Permits are required as a result of the execution of this Agreement or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract Transaction or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and the parties shall use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all effect such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Timetransfers.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers and the other transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Purchase Agreement (Visteon Corp)
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall use all its reasonable best efforts to take promptly, or to cause to be taken, all actions, and to do promptly, or to cause to be done, and to assist and to cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective effective, and to satisfy all conditions to, the Mergers Offer, the Merger and the other transactions contemplated hereby and to cause Merger Sub to purchase the Shares pursuant to the Offer on the earliest possible date following the satisfaction, or waiver by this AgreementParent or Merger Sub, of the Offer Conditions, including (i) the obtaining as promptly as practicable of all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Company Approvals and the Mars Specified Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be reasonably necessary to obtain an approval, clearance clearance, or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining as promptly as practicable of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers Offer, the Merger and the other transactions contemplated by this Agreement and hereby, (iv) the execution and delivery of any additional instruments reasonably necessary to consummate the transactions contemplated hereby, (v) in the case of Parent and Merger Sub, if any vote of the Company’s stockholders is required by this Agreement; provided, however, that in no event shall Galaxy or applicable Law to consummate any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated hereby, voting the Shares held by it in favor of the approval of this Agreement Agreement, the Merger and the other transactions contemplated hereby and (vi) if Merger Sub acquires sufficient Shares to merge Merger Sub and the Company without a vote of the Company’s stockholders, at the option of Parent (in its sole discretion) taking such actions as are necessary to cause the Company to be merged with and into Merger Sub with Merger Sub continuing as the surviving company in lieu of the Merger contemplated by Section 2.1. Notwithstanding anything set forth in this Agreement, under no circumstances shall Parent or Merger Sub be required, and the Company and its Subsidiaries shall not be permitted (without Parent’s written consent in its sole discretion) or required, to take any contract action, or commit to take any action, or agree to any condition or restriction, involving Parent, the Company or their respective Subsidiaries pursuant to this Section 6.6 or otherwise in connection with obtaining the foregoing actions or nonactions, waivers, clearances, permits, consents, approvals, expirations, terminations and authorizations of third parties or Governmental Entities, that would be, or would be reasonably likely to be, individually or in the aggregate, material to Parent or the Company and its Subsidiaries (including after the Closing Date, the Surviving Corporation and its Subsidiaries) taken as a whole, in each case measured on a scale relative to the Company and its Subsidiaries taken as a whole (a “Materially Burdensome Condition”); provided, that, if requested by Parent, the Company will take or commit to take any such action, or agree to any such condition or restriction, so long as such action, commitment, agreement, condition or restriction is binding on the Company only in the event the Offer Closing occurs.
(b) Subject to the terms and conditions herein provided (including Section 6.6(a)) and without limiting the foregoing, the parties hereto Company and Parent shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required or advisable, in the mutual reasonable judgment of Parent and the Company, to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely promptly making all such filings and timely obtaining all such consents, permits, authorizations or approvals; , (iiiii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Regulatory Law or by such Governmental Entity; , and (iviii) takeuse reasonable best efforts to take promptly, or cause to be takentaken promptly, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the Offer, the Merger and the other transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation jurisdiction for which, in the reasonable judgment of Parent, consents, permits, authorizations, waivers, clearances, approvals and expirations or other jurisdiction terminations of waiting periods are required or any other person may assert under any Law advisable with respect to the Offer, the Merger and the other transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers such transactions so as to enable the Closing to occur as soon as reasonably possible (and to enable the Offer Closing to occur as soon as reasonably possible and in any event no later than the End Date), including, without limitation, including (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco Parent or their respective its Subsidiaries or affiliates, or of Galaxy the Company or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit limits the freedom of Holdco Parent or its Subsidiaries’ (including the Surviving Corporations’Corporation’s) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’Corporation’s) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order Order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Offer Closing or the Closing or delaying the Offer Closing beyond the End Date; provided provided, that neither Galaxy nor the Company will only be required to take or commit to take any of its Subsidiaries shall become subject tosuch action, or consent or agree to any such condition or otherwise take any action with respect torestriction, any requirementif such action, conditioncommitment, understandingagreement, agreement condition or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order restriction is binding on Galaxy the Company only in the event that the Offer Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy the Company and Mars Parent shall keep each other apprised of the status of matters relating to the completion of the Offer, the Merger and the other transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy the Company or MarsParent, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy The Company and Mars Parent shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to to, including any filings with, any Governmental Entity, and confer in good faith to resolve any disagreement as to their strategy for communicating with any Governmental Entity or third party regarding any Regulatory Law. Each of Galaxy the Company and Mars Parent agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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. Any such disclosures, rights to participate or provisions of information by one party to the other may be made on an outside counsel-only basis to the extent required under applicable Law or as appropriate to protect confidential business information.
(d) In Subject to Section 6.6(a), in furtherance and not in limitation of the covenants of the parties contained in this Section 5.66.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging the Offer, the Merger or any other transaction contemplated by this Agreement as violative of any Regulatory Law, each of Galaxy the Company and Mars Parent shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such action or proceeding proceeding; provided, however, that (subject to the following sentence) the Company shall control the defense and settlement of any stockholder litigation against the Company and/or its directors relating to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other orderthe transactions contemplated by this Agreement, whether temporarycommenced prior to or after the execution and delivery of this Agreement; provided, preliminary or permanentfurther, however, that is the Company’s counsel shall be reasonably acceptable to Parent, the Company shall not take any significant positions relating any such litigation without consulting Parent in effect advance, and the Company shall consult with Parent with respect to litigation strategy on a regular basis. The Company agrees that prohibits, prevents it shall not settle any litigation commenced after the date of this Agreement against the Company or restricts consummation any of its directors or executive officers by any stockholder of the Mergers Company relating to this Agreement, the Offer, the Merger, or any other transaction contemplated hereby, without the prior written consent of Parent, such consent not to be unreasonably withheld, conditioned or delayed.
(e) For purposes of this Agreement, “Regulatory Law” means any and all state, federal and foreign statutes, rules, regulations, Orders, administrative and judicial doctrines and other Laws requiring notice to, filings with, or the consent, clearance or approval of, any Governmental Entity, or that otherwise may cause any restriction, in connection with the Offer, the Merger and the other transactions contemplated by this Agreementhereby, including (i) the ▇▇▇▇▇▇▇ Act of 1890, the ▇▇▇▇▇▇▇ Antitrust Act of 1914, the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended, the Federal Trade Commission Act of 1914 and all other Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening competition through merger or acquisition, (ii) any Law governing the direct or indirect ownership or control of any of the operations or assets of the Company and its Subsidiaries or (iii) any Law with the purpose of protecting the national security or the national economy of any nation.
Appears in 1 contract
Sources: Merger Agreement (Span America Medical Systems Inc)
Efforts. (a) Subject From and after the date hereof, subject to the terms and conditions set forth in of this Agreement, each of the parties hereto Purchaser and Seller shall use all reasonable best efforts to take promptlytake, or cause to be taken, all actions, and to do promptlydo, or cause to be done, and to assist and cooperate with the other parties Party in doing, all things reasonably necessary, proper or advisable under any applicable Laws Law or Approval to consummate and make effective in the Mergers most expeditious manner possible the Transaction and the other transactions contemplated by this Agreement, including including: (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periodsnon-actions, including any Approvals that are or may become necessary in connection with the Galaxy Specified Approvals consummation of the Transaction and the Mars Specified Approvalsother transactions contemplated hereby; (ii) the preparation and filing of all forms, from registrations, filings, petitions, statements, notices, submissions of information, applications and other documents (including filings with Governmental Entities Entities) that are required to be filed to consummate the Transaction and the making of all necessary registrations and filings and other transactions contemplated by this Agreement; (iii) the taking of all steps as may be necessary actions reasonably necessary, proper or advisable to obtain an approval(and cooperating with Seller and Purchaser, clearance or waiver fromas applicable, in obtaining) any Approval of, or to avoid an action or proceeding a Proceeding by, any third party, including any Governmental EntityEntity (which actions shall include furnishing all information required in connection with any Regulatory Approvals) in connection with the Transaction, and the other transactions contemplated by this Agreement; and (iiiv) obtaining all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedingsProceedings, whether judicial or administrative, challenging this Agreement or that would otherwise prevent or delay the consummation of the Mergers and the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary to consummate Transaction, or the transactions contemplated by this Agreement; provided, howeverincluding seeking to have any stay, that temporary restraining order or injunction entered by any court or other Governmental Entity vacated or reversed. Seller and Purchaser shall each use reasonable best efforts to assist the other Party with its efforts under this Section 5.1(a). (b) Each of Purchaser and Seller shall, in consultation and cooperation with the other and as promptly as reasonably practicable, but in no event shall Galaxy later than 10 Business Days from the date hereof, make its respective filing under the HSR Act, and Purchaser or Seller shall, as applicable, make any filings under any Competition/Foreign Investment Law set forth on Section 7.1(a) of the Disclosure Schedules, as promptly as practicable, but in no event later than as required by applicable Law. Neither Seller nor Purchaser will withdraw any such filings or applications, nor extend the timing for any review period by any Governmental Entity in connection with obtaining Regulatory Approvals, without the prior written consent of the other Party. Notwithstanding anything to the contrary contained in this Agreement, without the prior written consent of the other Party, neither Seller nor any of its Affiliates, on the one hand, nor Purchaser or any of its SubsidiariesAffiliates, or Mars or any of its Subsidiaries or Holdco on the other hand, will be required to pay prior to the Effective Time Closing any fee, penalty or other consideration (other than customary filing and notification fees with Governmental Entities) to any third party for any in connection with seeking or obtaining its consent or approval required for the consummation of to the transactions contemplated by this Agreement under Agreement. For the avoidance of doubt, any contract references in this Section 5.1 to Approvals or agreement.
(b) Subject Regulatory Approvals necessary or required to be obtained in connection with the Transaction or the Closing will include the Approvals or Regulatory Approvals required for the satisfaction of the conditions to the terms and conditions herein provided and without limiting Closing set forth in Section 7.1(a). To the foregoing, extent that transfers of any Permits are required as a result of the parties hereto shall (i) promptly, but in no event later than fifteen (15) Business Days after execution of this Agreement or the date hereof (consummation of the Transaction or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and the Parties shall use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all effect such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Timetransfers.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers and the other transactions contemplated by this Agreement.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each Each of the parties hereto shall Parties agrees to use all its respective reasonable best efforts to take promptlytake, or cause to be taken, all actions, to file, or cause to be filed, all documents and to do promptlydo, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under this Agreement and applicable Laws to consummate and make effective the Mergers and the other transactions contemplated by this AgreementTransactions as promptly as practicable, including including: (i) the obtaining of all necessary actions or nonactions, waiverslicenses, consentspermits, orders, notifications, clearances, approvalswaivers, and authorizations, expirations or terminations of waiting periods, including the Galaxy Specified Approvals clearances, Consents and the Mars Specified Approvals, approvals from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance approval or waiver from, or to avoid an action any Action, injunction or proceeding by, any Governmental Entity, including in connection with any Regulatory Law; (ii) obtaining all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, Actions challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement Transactions; and (iv) the execution and delivery of any notification or additional instruments necessary to consummate this Agreement and the transactions Transactions.
(b) The Parties shall use commercially reasonable efforts to promptly obtain, and to cooperate with each other to promptly obtain, all authorizations, approvals, clearances, consents, actions or non-actions of any Governmental Entity in connection with the above filings, applications or notifications. Each Party shall respond as promptly as practicable to any request by any Governmental Entity for information, documentation, other material or testimony, including by responding at the earliest reasonably practicable date to any request under or with respect to any inquiry by any Governmental Entity, and any such other applicable Laws for additional information, documents or other materials received by the Sellers or the Purchaser or any of their respective Affiliates from any Governmental Entity regarding any matter with respect to the Transactions under any Regulatory Law. In furtherance and not in limitation of the foregoing, the Parties shall, and shall cause their Affiliates to, use reasonable best efforts to undertake promptly any and all action required to complete the Transactions as promptly as practicable (but in any event prior to the Outside Date) and any and all action necessary or advisable to avoid, prevent, eliminate or remove the actual or threatened commencement of any Action in any forum by or on behalf of any Governmental Entity or the issuance of any Order that would delay, enjoin, prevent, restrain or otherwise prohibit the consummation of the Transactions, including to (x) proffer or consent and/or agree to any Order or other agreement providing for the sale, licensing or other disposition, or the holding separate, of particular assets, categories of assets or lines of business or (y) promptly effect the disposition, licensing or holding separate of any assets or lines of business or (z) take any other remedy requested or proposed by any Governmental Entity, in each case, as may be necessary to permit the lawful consummation of the Transaction on or prior to the Outside Date and except as would have or would reasonably be expected to materially and adversely affect the Company, taken as a whole, following Closing. The Sellers and the Purchaser shall only be required to undertake any action contemplated by the immediately preceding sentence in the event that such action is conditioned on the consummation of the Transactions.
(c) Without limiting the generality of the rest of this AgreementSection 6.3, each of the Parties shall cooperate, as promptly as practicable, in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry and shall, subject to applicable Law and reasonable confidentiality considerations, as promptly as reasonably practicable (i) furnish to the other such necessary information and reasonable assistance as the other Party may reasonably request in connection with the foregoing; (ii) promptly notify and inform the other Party of any communication received from, or given by such Party or any of their Affiliates to any Governmental Entity, regarding any of the Transactions; and (iii) provide counsel for the other Party with copies of all filings 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; provided, however, that in no event shall Galaxy or any materials may be provided on an outside counsel-only basis, and/or may be redacted (A) to remove references concerning competitively sensitive information and the valuation of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of Company and the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby thereby and (yB) timely making all such filings and timely obtaining all such consentsas necessary to comply with contractual arrangements. Each Party shall, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental EntityLaw, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the other party Parties a reasonable opportunity to review in advance, and consider in good faith the views of the other party Party in connection with, any proposed written communication communication, draft filing, correspondence or submission to any Governmental EntityEntity in connection with the Transactions. Each of Galaxy and Mars Party agrees not to participate participate, or to permit any of its Affiliates or their respective Representatives to participate, in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions Transactions, unless it consults with the other party Parties in advance and, to the extent not prohibited by such Governmental Entity, gives the other party Parties the opportunity to attend and participate.
(d) In furtherance Any information provided to any Party or its Representatives to another Party or its Representatives in accordance with this Section 6.3 or otherwise pursuant to this Agreement shall be held by the receiving Party and not its Representatives in limitation accordance with, and shall be subject to, the confidentiality obligations set forth in the Confidentiality Agreement.
(e) During the period from the date hereof until the earlier of the covenants termination of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Lawin accordance with its terms and the Closing Date, each of Galaxy and Mars the Parties shall cooperate in all respects with each other not, and shall use not permit any of their respective reasonable best efforts to contest and resist Affiliates to, knowingly take any such action that could prevent, materially delay 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 materially impede the consummation of the Mergers and the other transactions contemplated by this AgreementTransaction.
Appears in 1 contract
Sources: Share Purchase Agreement (dMY Technology Group, Inc. VI)
Efforts. (a) Subject to the terms and conditions set forth in of this Agreement, each of the parties hereto shall use all reasonable best efforts to take promptly, or cause to be taken, all actions, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doingand use (and shall cause their respective Subsidiaries to use) their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly (i) cause the conditions to Closing to be satisfied as promptly as reasonably practicable and to consummate and make effective, as promptly as reasonably practicable, the Transactions, including preparing and filing promptly and fully all things documentation to effect all necessary, proper or advisable under applicable Laws to consummate filings, notices, petitions, statements, registrations, declarations, submissions of information, applications, reports and make effective the Mergers and the other transactions contemplated by this Agreement, including (i) obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entitydocuments, (ii) obtaining obtain all necessary approvals, consents, approvals registrations, waivers, permits, authorizations, orders and other confirmations from any Governmental Authority or waivers from third partiesparty necessary, proper or advisable to consummate the Transactions, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers execute and the other transactions contemplated by this Agreement and (iv) the execution and delivery of deliver any additional instruments necessary to consummate the transactions contemplated Transactions and (iv) defend or contest in good faith any Action brought by this Agreement; provided, however, that in no event shall Galaxy any Person (including any Governmental Authority) or any of its SubsidiariesJudgment that could otherwise prevent or impede, interfere with, hinder or Mars or delay in any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for material respect the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (andTransactions, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates clauses (i) through (iv), other than with respect to use) reasonable best efforts to cooperate with each filings, notices, petitions, statements, registrations, declarations, submissions of information, applications, reports and other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearancesdocuments, approvals, and expirations or terminations of waiting periods are required to be obtained fromconsents, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consentsregistrations, permits, authorizations and other confirmations or approvals; (iiimatters relating to Antitrust Laws or Investment Screening Laws, which are dealt with in Sections 5.03(c) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (ivd) takebelow. Notwithstanding the foregoing, or cause nothing in this Section 5.03(a) shall require any party to be taken, all other actions and do, or cause make any concessions (as opposed to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, those matters dealt with in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to takeSections 5.03(c) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (yd) otherwise taking or committing to take any actions that after below, which are not the Closing Date would limit the freedom subject of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Timethis Section 5.03(a)).
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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.
(db) In furtherance and not in limitation of the covenants foregoing, the Company and Parent shall each use its reasonable best efforts to (i) take all action necessary to ensure that no Takeover Law is or becomes applicable to any of the parties contained in this Section 5.6Transactions and refrain from taking any actions that would cause the applicability of such Laws and (ii) if the restrictions of any Takeover Law become applicable to any of the Transactions, if any administrative or judicial take all action or proceeding, including any proceeding by a private party, is instituted (or threatened necessary to ensure that the Transactions may be instituted) challenging any transaction consummated as promptly as practicable on the terms contemplated by this Agreement as violative and otherwise lawfully minimize the effect of any Lawsuch Takeover Law on the Transactions.
(c) In furtherance and not in limitation of the foregoing, each of Galaxy the parties hereto shall (i) make, or cause to be made, an appropriate filing of a Notification and Mars Report Form pursuant to the HSR Act with respect to the Transactions (which shall cooperate request the early termination of any waiting period applicable to the Transactions under the HSR Act) as promptly as reasonably practicable following the date of this Agreement, and in all respects any event within 10 business days following the date hereof, (ii) file, or make initial contact, with each other the relevant agency, as required under the applicable foreign Antitrust Laws that are Other Regulatory Approvals in connection with the Merger Transactions, as promptly as reasonably practicable and shall use their respective reasonable best efforts in any event by the first business day after the 30th calendar day following the date hereof and make the filings required with respect to contest and resist any such action foreign Antitrust Laws that are Other Regulatory Approvals as promptly as reasonably practicable after making such initial contact, (iii) prepare and file the initial notifications required under Investment Screening Laws that are Other Regulatory Approvals in connection with the Merger Transactions as promptly as reasonably practicable and in any event by the first business day after the 45th calendar day following the date hereof, or proceeding earlier if legally required, and (iv) supply as promptly as reasonably practicable any additional information and documentary material that may be requested by the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Authority pursuant to any Antitrust Law, Investment Screening Law or Law with respect to a Required Approval. Each of the parties shall, as promptly as reasonably practicable, take any and all steps necessary to avoid or eliminate each and every impediment and obtain all consents under any Antitrust Laws or Investment Screening Laws or Law with respect to a Required Approval that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction, so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Outside Date. Without limiting the foregoing, Parent shall as promptly as reasonably practicable take all actions necessary to (1) secure the expiration or termination of any applicable waiting period under the HSR Act or, with respect to any Other Regulatory Approval, any other Antitrust Law or Investment Screening Law, (2) obtain the Other Regulatory Approvals and (3) resolve any objections asserted with respect to the Transactions under any applicable Law raised by any Governmental Authority, in order to prevent the entry of, or to have vacated, lifted, reversed or overturned overturned, any decreeRestraint that would prevent, judgmentprohibit, injunction restrict or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts delay the consummation of the Mergers Transactions (the expirations, terminations, approvals and resolutions described in clauses (1) through (3) or elsewhere in this Section 5.03(c), the “Required Approvals”), including (i) (A) executing settlements, undertakings, consent decrees, stipulations or other transactions agreements with any Governmental Authority or with any other Person, (B) selling, divesting or otherwise conveying or holding separate particular assets or categories of assets or businesses of Parent and its Subsidiaries, (C) agreeing to sell, divest or otherwise convey or hold separate any particular assets or categories of assets or businesses of the Company and its Subsidiaries contemporaneously with or subsequent to the Effective Time, (D) permitting the Company to sell, divest or otherwise convey or hold separate any of the particular assets or categories of assets or businesses of the Company or any of its Subsidiaries prior to the Effective Time, (E) terminating existing relationships, contractual rights or obligations of the Company or Parent or their respective Subsidiaries, (F) terminating any joint venture or other arrangement, (G) creating any relationship, contractual right or obligation of the Company or Parent or their respective Subsidiaries or (H) effectuating any other change or restructuring of the Company or Parent or their respective Subsidiaries (and, in each case, entering into agreements or stipulating to the entry of any Judgment by, or filing appropriate applications with, the FTC, the DOJ or any other Governmental Authority in connection with any of the foregoing (any such action described or contemplated by this Agreement.sentence or elsewhere in this Section 5.03(c), other than the first sentence hereof, a “Remedial Action”) and, in the case of Remedial Actions by or with respect to the Company, by consenting to such action by the Company (including any consents required under this Agreement with respect to such action); provided that any such action may, at the discretion of the Company or Parent, be conditioned upon the Closing) and (ii) defending through litigation any claim asserted in court or administrative or other tribunal by any Person (including any Governmental Authority) in order to avoid the entry of, or to have vacated or terminated, any Restraint that would prevent the Closing prior to the Outside Date (this clause (ii), “Regulatory Litigation”). No Remedial Actions taken in accordance with and pursuant to this Section 5.03 shall be considered for purposes of determining whether a Material Adverse Effect has occurred or would reasonably be expected to occur. Parent shall respond to and seek to resolve as promptly as reasonably practicable any objections asserted by any Governmental Authority with respect to the Transactions. Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. In connection with the efforts described in this Section 5.03(c) and Sections 5.03(d) and 5.03(e), Parent shall have the right, in regular consultation with the Company and after considering in good faith the Company’s views, to direct and control all such matters with any Governmental Authority consistent with its obligations hereunder, including devising and implementing the strategy for obtaining any such approvals, consents, registrations, waivers, permits, authorizations, orders and other confirmations from any Governmental Authority in connection with the Transactions as well as the manner in which to contest or otherwise respond to any objections or Actions challenging such approvals, consents, registrations, waivers, permits, authorizations, orders or other confirmations. In connection with the efforts described in this Section 5.03(c) and Sections 5.03(d) and 5.03(e) to obtain the Required Approvals as promptly as reasonably practicable, Parent shall have the right to a reasonable period in which to engage with Governmental Authorities and to discuss any objections that a Governmental Authority raises with respect to the Transactions and in which to attempt in good faith to resolve, narrow or overcome such objections, the extent of such reasonable period being dependent on the facts and circumstances but it being understood that it shall be reasonable to continue such discussions and engagement during any review of the Transactions by such Governmental Authority provided in all cases such discussions and engagement conclude at a time that, taking into account the period required to successfully defend any Regulatory Litigation, will enable the parties to consummate the Merger prior to the Outside Date. For purposes hereof, “Antitrust Laws” means the ▇▇▇▇▇▇▇ Act, the ▇▇▇▇▇▇▇ Act, the HSR Act, the Federal Trade Commission Act, all applicable foreign antitrust Laws and all other applicable Laws issued by a Governmental Authority that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall use all its commercially reasonable best efforts (subject to, and in accordance with, applicable Law) to take promptly, or to cause to be taken, all actions, and to do promptly, or to cause to be done, and to assist and to cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Mergers Transaction and the other transactions contemplated by this Agreementhereby, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, consents and approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Regulatory Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement hereby and (iv) the execution and delivery of any additional instruments reasonably necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreementhereby.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto Company and the Buyer shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and use commercially reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations waivers or terminations of waiting periods approvals are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining seeking all such consents, permits, authorizations or approvals; , including but not limited to approvals from the Food and Drug Administration (iiithe “Regulatory Approvals”), (ii) supply use commercially reasonable efforts to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or to cause to be taken, all other actions and to do, or to cause to be done, all other things necessary, proper or advisable to consummate the Transaction and make effective the other transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as reasonably may be necessary promptly to resolve such objections, if any, as by any Governmental Entity in connection with the United States Federal Trade CommissionRegulatory Approvals, the Antitrust Division of the United States Department of Justice, or other state antitrust enforcement authorities or competition federal regulatory authorities of any other nation or other jurisdiction or any other person may assert under any Regulatory Law with respect to the Transaction and the other transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers hereby so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (xiii) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other reasonably apprised of the status of matters relating to the completion of the transactions contemplated therebyby this Agreement, including to the extent permitted by Law promptly furnishing the other with true and complete copies of notices or other communications sent or received by Galaxy the Company or Marsthe Buyer, as the case may be, to or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect thereto, and permit the other to review in advance any proposed communication by such transactionsparty to any supervisory or Governmental Entity and (iv) give the other reasonable notice of, and, to the extent permitted by such Governmental Entity, allow the other to attend and participate at any meeting with any Governmental Entity in respect of any filings, investigation or other inquiry or proceeding relating thereto. Galaxy The Company and Mars the Buyer shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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.
(dc) In Subject to the rights of the Buyer in Section 6.8, and in furtherance and not in limitation of the covenants of the parties contained in this Section 5.66.5, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging the Transaction or any other transaction contemplated by this Agreement as violative of any LawAgreement, each of Galaxy the Company and Mars the Buyer shall cooperate in all respects with each other and shall use their respective commercially reasonable best efforts to contest and resist any such 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 Mergers and the Transaction or any other transactions contemplated by hereby. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 6.5 shall limit a party’s right to terminate this Agreement pursuant to Section 8.1(b)(i) or (ii) so long as such party has, prior to such termination, complied with its obligations under this Section 6.5.
(d) For purposes of this Agreement, “Regulatory Law” means any and all state, federal and foreign statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other Laws requiring notice to, filings with, or the consent or approval of, any Governmental Entity, or that otherwise may cause any restriction, in connection with the Transaction and the transactions contemplated thereby, including (i) any Law governing the direct or indirect ownership or control of any of the operations or assets (including the Acquired Assets) of the Company or (ii) any Law with the purpose of protecting the national security or the national economy of any nation.
Appears in 1 contract
Sources: Asset Purchase Agreement (Ivivi Technologies, Inc.)
Efforts. (a) Subject to the terms and conditions set forth in of this Agreement, each of the parties hereto Buyer (and its Affiliates) and Seller shall use all its reasonable best efforts to take promptly, or consummate the transactions contemplated hereby and to cause the conditions set forth in Article V to be takensatisfied. Without limiting the generality of the foregoing, each of the Buyer (and its Affiliates) and Seller shall use its reasonable best efforts to (i) promptly obtain all actions or non-actions, consents, waivers, approvals, authorizations and to do promptly, orders from Governmental Authorities necessary or cause to be done, and to assist and cooperate advisable in connection with the other parties in doingconsummation of the transactions 39 contemplated hereby, (ii) as promptly as practicable, make and not withdraw (without Seller’s consent) all things necessary, proper registrations and filings with any Governmental Authority necessary or advisable under applicable Laws to consummate and make effective in connection with the Mergers and consummation of the other transactions contemplated by this Agreement, including (i) obtaining all necessary actions any filings required of them or nonactions, waivers, consents, clearances, approvalstheir “ultimate parent entities” under any Antitrust Law, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and promptly make any further filings and the taking of all steps as pursuant thereto that may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) obtaining all necessary consents, approvals or waivers from third partiesadvisable, (iii) defending any defend all lawsuits or other legal proceedingslegal, whether judicial regulatory, administrative or administrative, other proceedings to which it or any of its Affiliates is a party challenging or affecting this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement and Agreement, in each case until the issuance of a final, non-appealable order with respect to each such lawsuit or other proceeding, (iv) seek to have lifted or rescinded any injunction or restraining order which may adversely affect the execution ability of the parties to consummate the transactions contemplated hereby, in each case until the issuance of a final, non-appealable order with respect to each such lawsuit or other proceeding, (v) seek to resolve any objection or assertion by any Governmental Authority challenging this Agreement or the transactions contemplated hereby and delivery of (vi) execute and deliver any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreementhereby.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers and the other transactions contemplated by this Agreement.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto to this Agreement shall use all its reasonable best efforts to take promptly, or cause to be taken, all actions, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Mergers Merger and the other transactions contemplated by this Agreement, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third partiesparties required to be obtained in connection with the Merger, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers Merger and the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy Parent, Company, or any of its Subsidiaries, or Mars or any of its their respective Subsidiaries or Holdco Joint Ventures be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract Contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto shall (i) promptly, but in no event later than fifteen (15) ten Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto)hereof, file any and all required Notification notification and Report Forms report forms under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the “HSR Act Act”), and file as promptly as practicable any other required filings and/or notifications under other applicable Antitrust Laws, with respect to the Mergers Merger and the other transactions contemplated by this Agreement, and use their reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; Act or any other Antitrust Law, (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby by this Agreement and (y) timely promptly making all such filings and timely obtaining all such consents, permits, authorizations or approvals; , (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; Entity and (iv) use their reasonable best efforts to take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated herebyby this Agreement. Company and Parent shall be equally responsible for all filing fees under the HSR Act, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation Antitrust Laws and/or any such other laws or other jurisdiction regulations applicable to any of Parent or its Affiliates. Company and Parent shall not (and shall cause their Subsidiaries and Affiliates not to) agree to stay, toll or extend any applicable waiting period under any Antitrust Law, enter into or extend a timing agreement with any Governmental Entity or withdraw or refile any filing under the HSR Act or any other person may assert under Antitrust Law, without the prior written consent of the other party.
(c) If any Law objections are asserted with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment hereby under any Antitrust Law that may be asserted or if any Action is instituted by any Governmental Entity with respect or any private party challenging any of the transactions contemplated hereby as violative of any Antitrust Law, each of Parent and Company shall (i) oppose or defend against any action to the Mergers so as to enable the Closing to occur as soon as reasonably possible prevent or enjoin consummation of this Agreement (and in any event no later than the End Datetransactions contemplated herein), includingand/or (ii) take such action as necessary to overturn any regulatory action by any Governmental Entity to prevent or enjoin consummation of this Agreement (and the transactions contemplated herein), without limitation, (x) proposing, negotiating, committing to and effecting, including by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of defending any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take Action brought by any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required Governmental Entity in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution ofhave vacated, overturned or terminated, including by appeal if necessary, in order to resolve any injunction, temporary restraining order such objections or other order in any suit challenge as such Governmental Entity or proceeding which would otherwise private party may have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority such transactions under such Antitrust Law so as to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any permit consummation of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Timetransactions contemplated by this Agreement.
(cd) Subject The parties shall cooperate and consult with each other in connection with the making of all registrations, filings, notifications, communications, submissions, and any other material actions pursuant to this Section 6.11, and, subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy Company, on the one hand, and Mars Parent, on the other hand, shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated therebyby this Agreement, including promptly furnishing the other with copies of notices or other material communications received by Galaxy Company or MarsParent, as the case may be, or any of their respective SubsidiariesSubsidiaries or Affiliates, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy Subject to applicable Law relating to the exchange of information, Company, on the one hand, and Mars Parent, on the other hand, shall to the extent practicable permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed notifications or filings and any written communications or submissions, and with respect to any such notification, filing, written communication or submission, any documents submitted therewith to any Governmental Entity; provided, however, that materials may be redacted (x) to remove references concerning the valuation of the businesses of Company and its Subsidiaries, or proposals from third parties with respect thereto, (y) as necessary or appropriate to address reasonable privilege concerns or reasonable confidentiality concerns relating to proprietary or commercially sensitive information regarding Parent and its operations, provided that Parent shall contemporaneously provide to Company’s counsel unredacted copies of any materials redacted pursuant to this subclause (y), and (z) as necessary or appropriate to address reasonable privilege concerns or reasonable confidentiality concerns relating to proprietary or commercially sensitive information regarding Company and its operations, provided that Company shall contemporaneously provide to Parent’s counsel unredacted copies of any materials redacted pursuant to this subclause (z). Each of Galaxy and Mars the parties agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions contemplated by this Agreement unless it consults with the other party parties in advance and, to the extent not prohibited or required otherwise by such Governmental Entity, gives the other party or if advisable the other parties’ outside counsel the opportunity to attend and participate.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers and the other transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Seadrill LTD)
Efforts. (a) Subject to From and after the terms date hereof, Purchasers and conditions set forth in this AgreementSeller shall, each of and shall cause their respective Affiliates to, until the parties hereto shall Outside Date, use all their respective reasonable best efforts to take promptlytake, or cause to be taken, all actions, and to do promptlydo, or cause to be done, and to assist and cooperate with the other parties in doing, all things reasonably necessary, proper or advisable under any applicable Laws Law to consummate and make effective as promptly as reasonably practicable the Mergers Transaction and the other transactions contemplated by this Agreement, including (i) obtaining preparing and filing (or causing to be prepared and filed) all necessary actions or nonactionsforms, waiversregistrations, consents, clearances, approvals, Filings and expirations or terminations of waiting periods, including notices reasonably required to be filed to satisfy the Galaxy Specified Approvals conditions precedent to this Agreement and to consummate the Transaction and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps other transactions contemplated by this Agreement as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entitysoon as reasonably practicable, (ii) obtaining all necessary consents, approvals or waivers from third parties, (iii) contesting and defending any lawsuits or other legal proceedingsProceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers Transaction or the other transactions contemplated by this Agreement, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, and (iii) executing and delivering any additional instruments necessary to consummate the Transaction and the other transactions contemplated by this Agreement and (iv) to fully carry out the execution and delivery purposes of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the terms and conditions herein provided and without . Without limiting the foregoing, Purchasers and Seller shall, and shall cause their respective Affiliates to, until the parties hereto Outside Date, take all actions reasonably necessary to obtain (and shall cooperate with each other in obtaining) any Transaction Regulatory Approvals (ifor the avoidance of doubt, excluding the HHS OIG Determination) promptly(which actions shall include furnishing, but or causing to be furnished, all information reasonably required in no event later than fifteen (15connection with such Transaction Regulatory Approvals) Business Days after required to be obtained or made by Purchasers, Seller, the date hereof other Seller Entities or the Purchased Entities (or such later date as may be mutually agreed Subsidiaries thereof) or any of their Affiliates in writing by connection with the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and Transaction or the other transactions contemplated by this Agreement. Additionally, neither Purchasers nor Seller shall, and use reasonable best efforts Purchasers and each Seller Entity shall cause its respective Subsidiaries and Affiliates not to, until the Outside Date, take any action after the date of this Agreement that would reasonably be expected to cause materially impair or delay the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made withobtaining of, or consentsresult in not obtaining, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required any Transaction Required Regulatory Approval necessary to be obtained from, any third parties or other Governmental Entities in connection with prior to the execution and delivery of this Agreement Closing. The Purchasers and the consummation of Seller Entities (as the transactions contemplated hereby and (ycase may be) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, shall take or cause to be taken, all other taken the actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, set forth in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to takeSection 5.1(a) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect Purchaser Disclosure Schedules.
(b) Prior to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying until the Closing or delaying Outside Date, Purchasers and Seller shall each keep the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other reasonably apprised of the status of matters relating to the completion of the Transaction and the other transactions contemplated therebyby this Agreement and work cooperatively in connection with obtaining all Transaction Required Regulatory Approvals. In that regard, including prior to the Closing until the Outside Date, subject to applicable Law, the Confidentiality Agreement and Section 5.3, each Party shall as promptly furnishing as reasonably practicable consult with the other Party to provide any necessary information with respect to (and, in the case of correspondence, provide the other Party (and its counsel) copies of) all Filings made by such Party or any of its Affiliates with any Governmental Entity or any other information supplied by or on behalf of such Party or any of its Affiliates to, or correspondence with, a Governmental Entity in connection with this Agreement, the Transaction and the other transactions contemplated by this Agreement. Subject to applicable Law, the Confidentiality Agreement and Section 5.3, each Party shall as promptly as reasonably practicable inform the other Party, and if in writing, furnish the other Party with copies of notices or (or, in the case of oral communications, advise the other communications Party orally of) any communication received by Galaxy or Mars, as the case may be, on behalf of such Party or any of their respective Subsidiaries, its Affiliates or Representatives from any third party and/or any Governmental Entity with respect to such transactions. Galaxy regarding the Transaction and Mars shall permit counsel for the other party transactions contemplated by this Agreement, and to the extent reasonably practicable and permitted by applicable Law permit the other Party a reasonable opportunity to review review, and where appropriate provide comments and discuss in advance, and consider in good faith the views of the other party Party in connection with, any proposed written communication such Filing, submission, response or other documentation, before submitting such Filing, submission, response or other documentation to any such Governmental Entity. Each If either Party or any Affiliate or Representative of Galaxy such Party receives a request for additional material information or documentary material from any Governmental Entity with respect to the Transaction or the other transactions contemplated by this Agreement, then such Party will make, or cause to be made, as promptly as reasonably practicable after consultation with the other Party, an appropriate response in compliance with such request. To the extent reasonably practicable and Mars agrees not to prohibited by Law, neither Party, nor any of its Affiliates or Representatives shall participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with this Agreement and the proposed Transaction or the other transactions contemplated by this Agreement (or make oral submissions at meetings or in telephone or other conversations) unless it consults with the other party Party in advance and, to the extent not prohibited by such Governmental EntityEntity or applicable Law, gives the other party Party the opportunity to attend and participate.
(d) In furtherance participate thereat. Subject to the Confidentiality Agreement and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law5.3, each of Galaxy and Mars shall cooperate in all respects with each other and Party shall use their respective its reasonable best efforts to contest furnish the other Party (and resist its counsel) with copies of all material correspondence and Filings (and memoranda setting forth the substance thereof) between it or any such action of its Affiliates or proceeding Representatives on the one hand, and any Governmental Entity, on the other hand, with respect to have vacated, lifted, reversed this Agreement and the Transaction 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 Mergers and the other transactions contemplated by this Agreement, and furnish the other Party with such necessary information and reasonable assistance as the other Party may reasonably request in connection with its preparation of Filings to any such Governmental Entity. Purchasers and Seller may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Agreement as “outside counsel only.” Such materials and the information contained therein shall be given only to the outside legal counsel and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Purchasers or Seller, as the case may be) or its legal counsel; provided, however, that materials provided to the other Party pursuant to this Agreement may be redacted (i) to remove references concerning the valuation of or future plans for the Business or the Sale Process, (ii) as necessary to comply with contractual obligations or applicable Law and (iii) as necessary to address reasonable privilege concerns. The obligations under this Section 5.1 shall only apply until the earliest to occur of the Closing and the Outside Date.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions set forth in of this Agreement, each of the parties hereto shall use all reasonable best efforts to take promptly, or cause to be taken, all actions, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doingand use (and shall cause their respective Subsidiaries to use) their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly (i) cause the conditions to Closing to be satisfied as promptly as reasonably practicable and to consummate and make effective, as promptly as reasonably practicable, the Transactions, including preparing and filing promptly and fully all things documentation to effect all necessary, proper or advisable under applicable Laws to consummate filings, notices, petitions, statements, registrations, declarations, submissions of information, applications, reports and make effective the Mergers and the other transactions contemplated by this Agreement, including (i) obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entitydocuments, (ii) obtaining obtain all necessary approvals, consents, approvals registrations, waivers, permits, authorizations, orders and other confirmations from any Governmental Authority or waivers from third partiesparty necessary, proper or advisable to consummate the Transactions, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers execute and the other transactions contemplated by this Agreement and (iv) the execution and delivery of deliver any additional instruments necessary to consummate the transactions contemplated Transactions and (iv) defend or contest in good faith any Action brought by this Agreement; provided, however, that in no event shall Galaxy any Person (including any Governmental Authority) or any of its SubsidiariesJudgment that could otherwise prevent or impede, interfere with, hinder or Mars or delay in any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for material respect the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (andTransactions, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates clauses (i) through (iv), other than with respect to use) reasonable best efforts to cooperate with each filings, notices, petitions, statements, registrations, declarations, submissions of information, applications, reports and other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearancesdocuments, approvals, and expirations or terminations of waiting periods are required to be obtained fromconsents, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consentsregistrations, permits, authorizations and other confirmations or approvals; (iiimatters relating to Antitrust Laws or Investment Screening Laws, which are dealt with in Sections 5.03(c) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (ivd) takebelow. Notwithstanding the foregoing, or cause nothing in this Section 5.03(a) shall require any party to be taken, all other actions and do, or cause make any concessions (as opposed to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, those matters dealt with in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to takeSections 5.03(c) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (yd) otherwise taking or committing to take any actions that after below, which are not the Closing Date would limit the freedom subject of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Timethis Section 5.03(a)).
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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.
(db) In furtherance and not in limitation of the covenants foregoing, the Company and Parent shall each use its reasonable best efforts to (i) take all action necessary to ensure that no Takeover Law is or becomes applicable to any of the parties contained in this Section 5.6Transactions and refrain from taking any actions that would cause the applicability of such Laws and (ii) if the restrictions of any Takeover Law become applicable to any of the Transactions, if any administrative or judicial take all action or proceeding, including any proceeding by a private party, is instituted (or threatened necessary to ensure that the Transactions may be instituted) challenging any transaction consummated as promptly as practicable on the terms contemplated by this Agreement as violative and otherwise lawfully minimize the effect of any Lawsuch Takeover Law on the Transactions.
(c) In furtherance and not in limitation of the foregoing, each of Galaxy the parties hereto shall (i) make, or cause to be made, an appropriate filing of a Notification and Mars Report Form pursuant to the HSR Act with respect to the Transactions (which shall cooperate request the early termination of any waiting period applicable to the Transactions under the HSR Act) as promptly as reasonably practicable following the date of this Agreement, and in all respects any event within 10 business days following the date hereof, (ii) file, or make initial contact, with each other the relevant agency, as required under the applicable foreign Antitrust Laws that are Other Regulatory Approvals in connection with the Merger Transactions, as promptly as reasonably practicable and shall use their respective reasonable best efforts in any event by the first business day after the 30th calendar day following the date hereof and make the filings required with respect to contest and resist any such action foreign Antitrust Laws that are Other Regulatory Approvals as promptly as reasonably practicable after making such initial contact, (iii) prepare and file the initial notifications required under Investment Screening Laws that are Other Regulatory Approvals in connection with the Merger Transactions as promptly as reasonably practicable and in any event by the first business day after the 45th calendar day following the date hereof, or proceeding earlier if legally required, and (iv) supply as promptly as reasonably practicable any additional information and documentary material that may be requested by the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Authority pursuant to any Antitrust Law, Investment Screening Law or Law with respect to a Required Approval. Each of the parties shall, as promptly as reasonably practicable, take any and all steps necessary to avoid or eliminate each and every impediment and obtain all consents under any Antitrust Laws or Investment Screening Laws or Law with respect to a Required Approval that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction, so as to enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Outside Date. Without limiting the foregoing, Parent shall as promptly as reasonably practicable take all actions necessary to (1) secure the expiration or termination of any applicable waiting period under the HSR Act or, with respect to any Other Regulatory Approval, any other Antitrust Law or Investment Screening Law, (2) obtain the Other Regulatory Approvals and (3) resolve any objections asserted with respect to the Transactions under any applicable Law raised by any Governmental Authority, in order to prevent the entry of, or to have vacated, lifted, reversed or overturned overturned, any decreeRestraint that would prevent, judgmentprohibit, injunction restrict or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts delay the consummation of the Mergers Transactions (the expirations, terminations, approvals and resolutions described in clauses (1) through (3) or elsewhere in this Section 5.03(c), the “Required Approvals”), including (i) (A) executing settlements, undertakings, consent decrees, stipulations or other transactions agreements with any Governmental Authority or with any other Person, (B) selling, divesting or otherwise conveying or holding separate particular assets or categories of assets or businesses of Parent and its Subsidiaries, (C) agreeing to sell, divest or otherwise convey or hold separate any particular assets or categories of assets or businesses of the Company and its Subsidiaries contemporaneously with or subsequent to the Effective Time, (D) permitting the Company to sell, divest or otherwise convey or hold separate any of the particular assets or categories of assets or businesses of the Company or any of its Subsidiaries prior to the Effective Time, (E) terminating existing relationships, contractual rights or obligations of the Company or Parent or their respective Subsidiaries, (F) terminating any joint venture or other arrangement, (G) creating any relationship, contractual right or obligation of the Company or Parent or their respective Subsidiaries or (H) effectuating any other change or restructuring of the Company or Parent or their respective Subsidiaries (and, in each case, entering into agreements or stipulating to the entry of any Judgment by, or filing appropriate applications with, the FTC, the DOJ or any other Governmental Authority in connection with any of the foregoing (any such action described or contemplated by this Agreementsentence or elsewhere in this Section 5.03(c), other than the first sentence hereof, a “Remedial Action”) and, in the case of Remedial Actions by or with respect to the Company, by consenting to such action by the Company (including any consents required under this Agreement with respect to such action); provided that any such action may, at the discretion of the Company or Parent, be conditioned upon the Closing) and (ii) defending through litigation any claim asserted in court or administrative or other tribunal by any Person (including any Governmental Authority) in order to avoid the entry of, or to have vacated or terminated, any Restraint that would prevent the Closing prior to the Outside Date (this clause (ii), “Regulatory Litigation”). No Remedial Actions taken in accordance with and pursuant to this Section 5.03 shall be considered for purposes of determining whether a Material Adverse Effect has occurred or would reasonably be expected to occur. Parent shall respond to and seek to resolve as promptly as reasonably practicable any objections asserted by any Governmental Authority with respect to the Transactions. Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing. In connection with the efforts described in this Section 5.03(c) and Sections 5.03(d) and 5.03(e), Parent shall have the right, in regular consultation with the Company and after considering in good faith the Company’s views, to direct and control all such matters with any Governmental Authority consistent with its obligations hereunder, including devising and implementing the strategy for obtaining any such approvals, consents, registrations, waivers, permits, authorizations, orders and other confirmations from any Governmental Authority in connection with the Transactions as well as the manner in which to contest or otherwise respond to any objections or Actions challenging such approvals, consents, registrations, waivers, permits, authorizations, orders or other confirmations. In connection with the efforts described in this Section 5.03(c) and Sections 5.03(d) and 5.03(e) to obtain the Required Approvals as promptly as reasonably practicable, Parent shall have the right to a reasonable period in which to engage with Governmental Authorities and to discuss any objections that a Governmental Authority raises with respect to the Transactions and in which to attempt in good faith to resolve, narrow or overcome such objections, the extent of such reasonable period being dependent on the facts and circumstances but it being understood that it shall be reasonable to continue such discussions and engagement during any review of the Transactions by such Governmental Authority provided in all cases such discussions and engagement conclude at a time that, taking into account the period required to successfully defend any Regulatory Litigation, will enable the parties to consummate the Merger prior to the Outside Date. For purposes hereof, “Antitrust Laws” means the ▇▇▇▇▇▇▇ Act, the ▇▇▇▇▇▇▇ Act, the HSR Act, the Federal Trade Commission Act, all applicable foreign antitrust Laws and all other applicable Laws issued by a Governmental Authority that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition and “Investment Screening Laws” means applicable supranational, national, federal, state, provincial or local Laws designed or intended to prohibit, restrict or regulate investment made by any Person into business interests located in a foreign country.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall, and shall cause their respective Affiliates to, use all reasonable best efforts to take promptlypromptly take, or cause to be taken, all actions, and to do promptlypromptly do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Mergers Merger and the other transactions contemplated by this AgreementAgreement in the most expeditious manner possible after the date hereof and in any event prior to the End Date, including (i) causing the conditions to the Closing set forth in Article 6 to be satisfied, (ii) the obtaining and maintaining of all necessary actions or nonactionsnon-actions, waivers, consentsconsents (including such consents set forth on Section 5.7(a)(ii) of the Company Disclosure Schedule), clearances, approvals, approvals and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Parent Approvals, from Governmental Entities and the making of all necessary registrations registrations, notifications and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (iiiii) the obtaining and maintaining of all necessary consents, approvals or waivers from third parties, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars the Company or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for or triggered by the consummation of the transactions contemplated by this Agreement under any contract or agreementagreement or otherwise.
(b) Subject to the terms and conditions herein provided provided, and without limiting in furtherance and not in limitation of the foregoingobligations set forth in this Agreement, the parties hereto Company, Parent or its Subsidiaries and Antitrust Affiliates, and Merger Sub, as applicable, shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (hereof, make all necessary filings to obtain any consents, permits, authorizations, waivers, clearances, approvals or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act expirations or terminations of waiting periods from or with respect to the Mergers FCC that are required in connection with the Merger and the other transactions contemplated by this Agreement (the “FCC Applications”), (ii) promptly, but in no event later than thirty (30) Business Days after the date hereof, make all necessary filings to obtain any consents, permits, authorizations, waivers, clearances, approvals or expirations or terminations of waiting periods from or with respect to the LFAs that are required in connection with the Merger and the other transactions contemplated by this Agreement, and use reasonable best efforts (iii) promptly, but in no event later than thirty (30) Business Days after the date hereof, make all necessary filings to cause the expiration obtain any consents, permits, authorizations, waivers, clearances, approvals or termination expirations or terminations of any applicable waiting periods under from or with respect to the HSR ActState PUCs, (iv) promptly, but in no event later than fifteen (15) Business Days after the date hereof, submit a filing (or draft thereof) with the European Commission; (iiv) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) all reasonable best efforts to cooperate with each other in (xA) determining whether any other filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, or with respect to, any third parties or Governmental Entities, including under other Governmental Entities applicable Antitrust Laws or Communications Laws and/or in connection with the Specified Approvals and Parent Approvals, in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (yB) timely promptly making all such filings filings, and timely obtaining all such consents, permits, authorizations or approvals; (iiivi) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; . Subject to the terms and (iv) conditions herein provided, and in furtherance and not in limitation of the obligations set forth in this Agreement, the Company, Parent or its Subsidiaries and Merger Sub, as applicable, shall use reasonable best efforts to take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action (other than litigation) as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of authorities, the FCC, any other nation or other jurisdiction State PUC, any LFA or any other person Governmental Entity or other Person may assert under any Law (including in connection with the Specified Approvals and Parent Approvals) with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers Merger so as to enable the Closing to occur as soon promptly as reasonably possible practicable after the date hereof (and in any event no later than the End Date). Notwithstanding anything to the contrary contained in this Agreement (but subject to the proviso contained in this sentence), and in furtherance of and consistent with Parent’s reasonable best efforts under this Section 5.7, Parent or its Subsidiaries shall take, and shall cause to be taken, all actions, and shall do, or cause to be done, all things necessary, proper or advisable, with respect to Parent or its Subsidiaries (including the Company and its Subsidiaries) to eliminate each and every impediment under any Antitrust Law that is asserted by any Governmental Bodies (including Regulatory Authorities), to obtain the consent or cooperation of any other Person, and to permit and cause the satisfaction of the conditions set forth in Section 6.1(c), in each of the foregoing cases, to permit the Closing to occur as promptly as reasonably practicable and in any event prior to the End Date, including, without limitation, : (x) proposing, negotiating, committing to, agreeing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture divestiture, license, hold separate or disposition of any and all of the equity interests, assets (whether tangible or intangible), products or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy the Company or its Subsidiaries and Subsidiaries, (y) otherwise taking or committing to take any actions that after the Closing Date would limit Parent’s, the freedom of Holdco Company’s or its their Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its their ability to retainretain or hold, one directly or more indirectly, the equity interests, assets (whether tangible or intangible), products, or businesses of the Company and/or its Subsidiaries, or (z) creating, terminating or divesting relationships, ventures, contractual rights or obligations of the Company or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which Action that would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date(each of clauses (x)-(z) a “Remedy Action”); provided that neither Galaxy nor any of (A) Parent or its Subsidiaries Subsidiaries, and Merger Sub shall become subject not be required to propose, commit to, or consent effect or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement Remedy Action that individually or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that aggregate has had or would reasonably be expected to have a material adverse effect on the Closing occurs; provided that none financial condition or current operations of Mars, Holdco or either (x) the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy Company and their respective its Subsidiaries, taken as a whole, or (y) Parent and its Subsidiaries, taken as a whole, in each case as measured relative to the size of the Company regardless of whether such actions are imposed on, or affect Parent and its Affiliates or the Company and its Subsidiaries; and (B) the Company shall only be required to take or commit to take any action, or agree to any condition or restriction as requested by Parent pursuant to this Section 5.7, if such action, commitment, agreement, condition or restriction is binding on the Company only in the event the Closing occurs. Except as otherwise permitted under this Agreement, the Company, Parent and Merger Sub shall not (and shall cause their Subsidiaries not to) take or agree to take any action that would be reasonably likely to prevent or materially delay the Closing. In the event that any information in the filings submitted pursuant to this Section 5.7(b) or any such supplemental information furnished in connection therewith is deemed confidential by either party, the parties shall use their reasonable best efforts to maintain the confidentiality of the same, and the parties shall seek authorization from the applicable Governmental Entity to withhold such information from public view. Neither Parent, Merger Sub nor any of their Subsidiaries or Affiliates will withdraw any notices, reports, filings or applications with any Governmental Entity relating to the Merger, enter into any timing agreement or agreement not to consummate the Merger for any period of time, or otherwise commit to or agree with any Governmental Entity to stay, toll or extend any applicable waiting period under any applicable Law without the Company’s prior written consent (which may not be given other than at or after the Effective Timedirection of the Special Committee).
(c) Subject Between the date hereof and the earlier of the Effective Time and the Termination Date, Parent and Merger Sub shall not, and shall not permit the Equity Investors or any of their Subsidiaries or Affiliates or Antitrust Affiliates to, enter into any binding Contracts to acquire (by stock purchase, merger, consolidation, purchase of assets, license or otherwise) any ownership interests in any Person providing broadband services (i.e., highspeed data, cable television, or digital telephony services) to residential customers in any of the same counties or cities in which the Company or any of its Subsidiaries provides broadband services to residential customers as of the date of this Agreement, to the extent that such acquisition would be reasonably expected to (x) prevent the obtaining of, or result in not obtaining prior to the End Date, any authorizations, consents, orders, declarations or approvals of any Governmental Entity or the expiration or termination of any applicable waiting period necessary to consummate the transactions contemplated by this Agreement, or (y) materially increase the risk of any Governmental Entity entering an order, ruling, judgment or injunction prohibiting the consummation of the Merger or the other transactions contemplated by this Agreement, or of the failure to be satisfied of any conditions set forth in Section 6.1 (any such Contract or acquisition, a “Specified Parent Acquisition”). Parent shall cause its and its Affiliates’ respective partners, equityholders, investment professionals or executives, as applicable, to cooperate in responding as promptly as practicable to any investigation or other inquiry from a Governmental Entity, including by providing any such information (including financial information) in connection with such investigation or inquiry.
(d) The Company, Parent and Merger Sub shall cooperate and consult with each other in connection with the making of all registrations, filings, notifications, communications, submissions and any other actions pursuant to this Section 5.7, and, subject to applicable legal limitations limitations, the Company, on the one hand, and Parent and Merger Sub, on the instructions of any Governmental Entityother hand, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including using commercially reasonable efforts to promptly furnishing furnish the other with copies of notices or other communications (or, if not in writing, advise the other party orally of such notices or communications) received by Galaxy the Company or MarsParent, as the case may be, or any of their respective SubsidiariesSubsidiaries or Antitrust Affiliates, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy Subject to applicable Law relating to the exchange of information, the Company, on the one hand, and Mars Parent and Merger Sub, on the other hand, shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed notifications or filings and any written communications or submissions, and with respect to any such notification, filing, written communication or submission, any documents submitted therewith to any Governmental Entity; provided, that Parent and the Company may, as each deems advisable and necessary, reasonably designate any sensitive materials provided to the other under this Section 5.7(c) as “Outside Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent or the Company, as the case may be) or its legal counsel. Notwithstanding anything to the contrary in this Section 5.7, materials provided pursuant to this Section 5.7 may be redacted (x) to remove references concerning the valuation of the businesses of the Company and its Subsidiaries, or proposals from third parties with respect thereto, (y) as necessary to comply with contractual agreements and (z) as necessary to address reasonable privilege or confidentiality concerns. Each of Galaxy the Company, P▇▇▇▇▇ and Mars M▇▇▇▇▇ Sub agrees not to participate in any substantive meeting or discussion, either in person person, by videoconference or by telephone, with any Governmental Entity in connection with the proposed transactions unless it consults with the other party in advance advance, considers in good faith the views of the other party with respect to such meeting or discussion, and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate.
(de) In furtherance and not in limitation of the covenants of the parties contained in this Agreement, including in this Section 5.65.7, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy the Company, Parent and Mars Merger Sub shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such action Action or proceeding and to have vacated, lifted, reversed or overturned any Action, decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Mergers Merger and the other transactions contemplated by this Agreement.
(f) Each party shall bear its own expenses in connection with the preparation, filing, and prosecution of the FCC Applications and any filings made with State PUCs and LFAs pursuant to Section 5.7(b), except that Parent is responsible for all filing fees associated with any such filings as set forth in, and subject to, Section 8.2.
(g) Subject to the terms and conditions herein provided, and in furtherance and not in limitation of the obligations set forth in this Agreement, the Company shall use its commercially reasonable efforts to apply for renewal of each Franchise set forth on Section 5.7(g) of the Company Disclosure Schedule and pursue such applications diligently. The Company, Parent and Merger Sub shall cooperate and consult with each other in connection with the making of all registrations, filings, notifications, communications, submissions and any other actions in connection with renewing the Franchises.
Appears in 1 contract
Efforts. (ai) Subject Notwithstanding anything in this Agreement to the terms and conditions set forth in this Agreementcontrary, each of the parties hereto shall Buyer shall, at the Buyer’s sole cost, use all commercially reasonable best efforts to take promptly, or cause to be taken, all actions, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Mergers and the other transactions contemplated by this Agreement, including (i) obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) obtaining all necessary consents, approvals or waivers from third parties, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, any and all other things necessary, proper or advisable to consummate avoid, eliminate and make effective resolve each and every impediment and obtain all consents required to permit the transactions contemplated hereby, including taking (and, satisfaction of the conditions in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if anyArticle VI, as promptly as reasonably practicable; provided, however, notwithstanding the United States Federal Trade Commissionforegoing, the Antitrust Division Buyer shall not (nor shall any of the United States Department its Affiliates) be required to:
(A) proffer and agree to sell, divest, lease, license, transfer, dispose of Justiceor otherwise encumber, state antitrust enforcement authorities hold separate pending such disposition or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law otherwise effectuate such actions with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to assets of the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy Buyer or any of its SubsidiariesAffiliates;
(B) terminate any existing relationships and contractual rights and obligations of the Buyer or its Affiliates with third parties;
(C) amend or terminate existing licenses or other Intellectua l Property agreements and to enter into such new licenses or other Intellectual Property agreements; and
(D) enter into agreements, unless such requirementincluding with the relevant Governmental Entity, conditiongiving effect to the foregoing clauses (A) through (C).
(ii) Subject in all cases to the foregoing clauses (i)(A) through (i)(D), understandingthe Parties agree to take or cause to be taken, agreement at the Buyer’s sole cost, the following actions:
(A) the prompt use of their respective commercially reasonable efforts to avoid the entry of any permanent, preliminary or order is binding on Galaxy only temporary injunction or other decree, decision, determination or judgment that would reasonably be expected to delay, restrain, prevent, enjoin or otherwise prohibit consummation of the Transactions; and
(B) the prompt use of their respective commercially reasonable efforts to take, in the event that the Closing occurs; provided that none of Marsany Order is entered or issued, Holdco or the Merger Subs shall becomes reasonably foreseeable to be required to take entered or issued, in any of the actions described in clauses (iv)(x) regulatory proceeding or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions inquiry of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, kind that is in effect and that prohibits, prevents or restricts would make consummation of the Mergers Transactions in accordance with the terms of this Agreement unlawful or that would reasonably be expected to delay, restrain, prevent, enjoin or otherwise prohibit consummation of the Transactions, any and the other transactions all steps reasonably necessary to resist, vacate, modify, reverse, suspend, prevent, eliminate or remove such actual, anticipated or threatened Order so as to permit such consummation on a schedule as close as possible to that contemplated by this Agreement.
(iii) Notwithstanding the foregoing, the obligations of the Parties to obtain any consent, approval or waiver from the Bankruptcy Court will be governed by Article V and the other applicable provisions of this Agreement and not by this Section 4.3.
Appears in 1 contract
Sources: Interest and Asset Purchase Agreement (SVB Financial Group)
Efforts. (a) Subject to the terms and conditions set forth in of this AgreementAgreement (including Section 7.03), each of Parent and the parties hereto Company shall use all reasonable best efforts to take promptlytake, or cause to be taken, all actions, actions and to do promptlydo, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws Law or Order to consummate and make effective the Mergers and the other transactions contemplated by this AgreementTransactions as promptly as reasonably practicable, including (i) obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals, preparing and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps filing as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, promptly as reasonably practicable with any Governmental EntityAuthority or other Third Party all documentation to effect all necessary, proper or advisable filings, notices, petitions, statements, registrations, submissions of information, applications and other documents and (ii) obtaining and maintaining all necessary approvals, consents, approvals or waivers from third parties, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consentsregistrations, permits, authorizations, waivers, clearances, approvals, authorizations and expirations or terminations of waiting periods are other confirmations required to be obtained from, from any third parties Governmental Authority or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents Third Party that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things are necessary, proper or advisable to consummate and make effective the transactions contemplated herebyTransactions (whether or not such approvals, including taking consents, registrations, permits, authorizations and other confirmations are conditions to the consummation of the Merger pursuant to Article 8); provided, however, that none of the Company, its Subsidiaries nor any of their respective Representatives shall provide notice to, or request consent from, any Third Party with respect to this Agreement or the Transactions without the prior written consent of Parent (andsuch consent not to be unreasonably withheld or delayed). Parent further acknowledges and agrees that, notwithstanding anything in this Agreement to the contrary, the activities and circumstances described in Section 7.01 of the Company Disclosure Letter do not limit or otherwise affect Parent’s obligations under this Agreement.
(b) In furtherance, and not in limitation of the foregoing, each of Parent and the Company shall make, as promptly as reasonably practicable after the date of this Agreement (and in any event within fifteen (15) Business Days of the date of this Agreement in the case of Marsthe following clause (i) and within 30 days of the date of this Agreement in the case of the following clauses (ii) and (iii) (unless counsel to the Parties have previously agreed to extend such periods)), Holdco (i) an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions, (ii) an appropriate filing of a Notification of the Transactions with the German Federal Cartel Office (“Bundeskartellamt”) as prescribed by the ARC, and (iii) a notification to The Federal Antimonopoly Service of the Russian Federation pursuant to FLN 135 (the jurisdictions referenced in clauses (ii) and (iii), the “Required Jurisdictions”). Each of Parent and the Company shall use reasonable best efforts to supply as promptly as practicable any additional information and documentary material that may be reasonably requested pursuant to the foregoing, and use reasonable best efforts to take all other actions necessary to cause the expiration or termination of (and not to extend) the Merger Subsapplicable waiting periods regarding the foregoing as soon as reasonably practicable.
(c) Except as prohibited by applicable Law or Order or by applicable Governmental Authority, cause each of their respective affiliates Parent and the Company shall use reasonable best efforts to take(i) all cooperate with each other in connection with any filing or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private party, (ii) promptly inform the other Party of (and if in writing, supply to the other Party) any communication (other than any ministerial communications) received by such further action as may be necessary promptly to resolve Party from, or given by such objectionsParty to, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction Justice or any other person may assert under any Law with respect to the transactions contemplated hereby, Governmental Authority and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets material communication received or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take given in connection with any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assetsproceeding by a private party, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take regarding any of the actions described Transactions, (iii) consult with each other prior to taking any material position in clauses (iv)(x) discussions with or (y) above with respect filings to be submitted to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of Governmental Authority regarding any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated therebyTransactions, including promptly furnishing (iv) permit the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the other party reasonable opportunity to review and discuss in advance, and consider in good faith the views of the other party in connection with, any proposed written communication analyses, presentations, memoranda, briefs, arguments, opinions, proposals and litigation to be submitted to any Governmental Entity. Each Authority regarding any of Galaxy the Transactions, and Mars agrees not to participate (v) coordinate with the other in preparing and exchanging such information and promptly provide the other (and its counsel) with copies of all filings, presentations or submissions (and a summary of any substantive meeting or discussion, either in person or oral presentations) made by telephone, such Party with any Governmental Entity Authority relating to this Agreement or the Transactions. Notwithstanding anything to the contrary herein, Parent shall, on behalf of the Parties, have control over and lead all communications and strategy, including all analyses, presentations, memoranda, briefs, arguments, opinions, proposals and litigation, relating to obtaining all approvals, consents, waivers, registrations, permits, authorizations and other confirmations from any Governmental Authority in connection with consummating the proposed transactions unless it consults with Transactions, except for stockholder litigation as set forth in Section 7.08. The Parties shall take reasonable best efforts to share information protected from disclosure under the attorney-client privilege, work product doctrine, joint defense privilege or any other party privilege pursuant to this Section 7.01 in advance and, a manner so as to preserve the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participateapplicable privilege.
(d) In furtherance and not in limitation of Unless prohibited by applicable Law or Order or by the covenants of the parties contained in this Section 5.6, if any administrative applicable Governmental Authority or judicial action arbitrator (public or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Lawprivate), each of Galaxy Parent and Mars the Company shall cooperate (i) to the extent reasonably practicable, not participate in all respects or attend any meeting, or engage in any conversation (other than ministerial conversations) with each any Governmental Authority or arbitrator (public or private) in respect of the Transactions (including with respect to any of the actions referred to in Section 7.01(a)) without the other, (ii) to the extent reasonably practicable, give the other reasonable prior notice of any such meeting or conversation and (iii) in the event one such Party is prohibited by applicable Law or Order or by the applicable Governmental Authority or arbitrator (public or private) from participating or attending any such meeting or engaging in any such conversation, keep such non-participating Party reasonably apprised with respect thereto.
(e) Parent and the Company shall use their respective reasonable best efforts to contest take, or cause to be taken, all actions necessary to consummate the Transactions. Without limiting the generality of the foregoing, but subject to Section 7.01(f), each Party: (i) shall make all filings (if any) and resist give all notices (if any) required to be made and given by such Party in connection with the Transactions; (ii) shall use reasonable best efforts to obtain each consent (if any) required to be obtained (pursuant to any applicable Law or Contract, request by a Governmental Authority or arbitrator (public or private), or otherwise) by such action Party in connection with the Transactions; and (iii) shall use reasonable best efforts to lift or proceeding cause to be overturned any restraint, injunction or other legal bar to the Transactions.
(f) For purposes of Section 7.01, “reasonable best efforts” shall include (A) contesting and resisting any Proceeding, and using reasonable best efforts to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, Order that is in effect and that prohibitsrestricts, prevents or restricts prohibits the consummation of the Mergers and the Merger or any other transactions contemplated by this Agreement under any applicable Law; and (B) the obligation by Parent, Merger Sub, and any of their Subsidiaries to offer and consent to, and thereafter to implement, any of the following measures if doing so is necessary to enable the parties to avoid, resolve, or lift an Order or Proceeding or to obtain any approval of a Governmental Authority set forth in Section 8.01(c): (i) make any payment to any Governmental Authority as required by applicable Law or the terms of any governmental grant, authorization or permit, (ii) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Corporation, Parent, Merger Sub or any of their respective Subsidiaries, (iii) conduct, restrict, operate, invest or otherwise change the assets, business or portion of business of the Company, the Surviving Corporation, Parent, Merger Sub or any of their respective Subsidiaries in any manner, or (iv) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Corporation, Parent, Merger Sub or any of their respective Subsidiaries. Prior to the earlier of the Closing and the termination of this Agreement, neither Parent nor Merger Sub shall, and each of Parent and Merger Sub shall cause their affiliates to not, enter into any acquisition agreement, asset purchase agreement, stock purchase agreement or other similar agreement (or otherwise consummate any such transaction), in each case for the purchase of a corporation, partnership, or other business organization or business thereof (including all or substantially all of the assets of such business) within the Unified Communications as a Service industry that would reasonably be expected to prevent or materially delay the Merger.
Appears in 1 contract
Sources: Merger Agreement (Polycom Inc)
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall, and shall cause its Subsidiaries to, use all its reasonable best efforts (subject to, and in accordance with, applicable Law) to take promptly, or to cause to be taken, all actions, and to do promptly, or to cause to be done, and to assist and to cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Mergers Merger and the other transactions contemplated by this Agreementhereby, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, consents and approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Company Approvals and the Mars Specified Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, parties and (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreementhereby.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto Company and Parent shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations waivers or terminations of waiting periods approvals are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining seeking all such consents, permits, authorizations or approvals; , (iiiii) supply use reasonable best efforts to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or to cause to be taken, all other actions and to do, or to cause to be done, all other things necessary, proper or advisable to consummate and make effective the Merger and the other transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as reasonably may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, any state antitrust enforcement authorities or competition federal regulatory authorities of any other nation or other jurisdiction or any other person Person may assert under any Regulatory Law (as hereinafter defined) with respect to the Merger and the other transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers Merger so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End DateDate (as hereinafter defined)), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (yiii) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall use reasonable best efforts to keep each other apprised of the status of matters relating matters, including to the completion of the transactions contemplated thereby, including extent permitted by Law promptly furnishing the other with copies of notices or other communications received by Galaxy the Company or MarsParent, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect related to such transactions. Galaxy the approval of the Merger, allowing each other to review in advance any filing or written materials submitted to any Governmental Entity related to the approval of the Merger, and Mars shall permit counsel for providing the other party reasonable and its counsel with advance notice of and, to the extent permitted by Law, the opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person telephone call or by telephone, meeting with any Governmental Entity in connection with the proposed transactions unless it consults with the respect of any filing, investigation or other party in advance and, inquiry related to the extent not prohibited by such Governmental Entity, gives approval of the other party the opportunity to attend and participateMerger.
(dc) In Subject to Section 5.10, and in furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceedingProceeding, including any proceeding Proceeding by a private party, is instituted (or threatened to be instituted) challenging the Merger or any other transaction contemplated by this Agreement as violative of any LawAgreement, each of Galaxy the Company and Mars Parent shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers and the Merger or any other transactions contemplated by hereby; provided, however, that, without the consent of Parent, nothing in this Agreement shall require Parent, the Company Agreement and Plan of Merger -50- or the Surviving Corporation, or their respective Subsidiaries or Affiliates, to sell, hold separate or otherwise dispose of any assets or business, or any interest in any of their respective Subsidiaries or Affiliates, in whole or in part, or to conduct any aspect of their business in a specified manner, or to permit the sale, holding separate of, or other disposition of, any assets or business, in whole or in part, or to agree to take any of the foregoing actions, or to agree to any condition or to enter into any agreement to obtain such consent, registration, approval, Permit or authorization that, in the judgment of Parent, would be adverse to Parent or the Surviving Corporation. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.6 shall limit a party’s right to terminate this Agreement pursuant to Section 7.1(b)(i) or Section 7.1(b)(ii) so long as such party has, prior to such termination, complied with its obligations under this Section 5.6.
(d) For purposes of this Agreement, “Regulatory Law” means any and all Laws requiring notice to, filings with, or the consent or approval of, any Governmental Entity, or that otherwise may cause any restriction, in connection with the Merger and the transactions contemplated thereby, including (i) the ▇▇▇▇▇▇▇ Act of 1890, the ▇▇▇▇▇▇▇ Antitrust Act of 1914, the Federal Trade Commission Act of 1914 and all other Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening competition through merger or acquisition, (ii) any Law governing the direct or indirect ownership or control of any of the operations or assets of the Company and its Subsidiaries or (iii) any Law with the purpose of protecting the national security of any nation.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall use all its reasonable best efforts to take promptly, or to cause to be taken, all actions, and to do promptly, or to cause to be done, and to assist and to cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Mergers Merger and the other transactions contemplated by this Agreementhereby, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Company Approvals and the Mars Specified Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance clearance, or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers Merger and the other transactions contemplated by this Agreement hereby and (iv) the execution and delivery of any additional instruments reasonably necessary to consummate the transactions contemplated by this Agreementhereby; providedPROVIDED, howeverHOWEVER, that in no event shall Galaxy or any of its SubsidiariesParent, or Mars Merger Sub, the Company or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty penalties or other consideration to any third party for to obtain any consent or approval required for the consummation of the transactions contemplated by this Agreement Merger under any contract or agreementContract.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto Company and Parent shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto)hereof, file any and all required Notification and Report Forms required under the HSR Act with respect to the Mergers Merger and the other transactions contemplated by this Agreementhereby, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; , (ii) if required, promptly make an appropriate filing under the ECMR, and use (and, in reasonable best efforts to obtain a decision from the case European Commission allowing the consummation of Mars, Holdco or the Merger Subsand the other transactions contemplated hereby, cause each of their respective affiliates to use(iii) use reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; , (iiiiv) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Regulatory Law or by such Governmental Entity; , and (ivv) use reasonable best efforts to take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the Merger and the other transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Regulatory Law with respect to the Merger and the other transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers Merger so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, limitation (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco Parent or their respective its Subsidiaries or affiliates, Affiliates or of Galaxy the Company or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit limits the freedom of Holdco Parent or its Subsidiaries’ ' (including the Surviving Corporations’Corporation's) or affiliates’ Affiliates' freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ ' (including the Surviving Corporations’Corporation's) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided PROVIDED that neither Galaxy the Company nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy the Company or any of its SubsidiariesAffiliates, unless such requirement, condition, understanding, agreement or order is binding on Galaxy the Company only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy the Company and Mars Parent shall keep each other apprised of the status of matters relating to the completion of the Merger and the other transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy the Company or MarsParent, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy The Company and Mars Parent shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy the Company and Mars Parent agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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.
(d) In Subject to the rights of Parent in Section 5.11, and in furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging the Merger or any other transaction contemplated by this Agreement as violative of any Regulatory Law, each of Galaxy the Company and Mars Parent shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers and the Merger or any other transactions contemplated by hereby. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.6 shall limit a party's right to terminate this Agreement pursuant to Section 7.1(b)(i) or (ii) so long as such party has, prior to such termination, complied with its obligations under this Section 5.6.
(e) For purposes of this Agreement, "REGULATORY LAW" means any and all state, federal and foreign statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other Laws requiring notice to, filings with, or the consent, clearance or approval of, any Governmental Entity, or that otherwise may cause any restriction, in connection with the Merger and the transactions contemplated thereby, including (i) the Sherman Act of 1890, the Clayton Antitrust Act of 1914, the HSR Act, ▇▇▇ ▇ederal Trade Commi▇▇▇▇▇ ▇ct of 1914, the ECMR and all other Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening competition through merger or acquisition, (ii) any Law governing the direct or indirect ownership or control of any of the operations or assets of the Company and its Subsidiaries or (iii) any Law with the purpose of protecting the national security or the national economy of any nation.
Appears in 1 contract
Sources: Merger Agreement (Macdermid Inc)
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall use all their respective reasonable best efforts to take promptly, or cause to be taken, all actions, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate the Offer and to consummate and make effective the Mergers Merger and the other transactions contemplated by this AgreementAgreement as soon as practicable, including (i) the preparing and obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, approvals and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Parent Approvals, from Governmental Entities and the preparing and making of all necessary registrations registrations, filings and filings notices and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action Action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) satisfying the Tender Offer Conditions and the conditions to the consummation of the Merger set forth in Article VII, (iv) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers Offer and the Merger and the other transactions contemplated by this Agreement and (ivv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars the Company or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent consents or approval approvals required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto Company, Parent and Merger Sub shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely preparing and making all such filings and timely preparing and obtaining all such consents, permits, authorizations or approvals; , and (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations Law and the instructions of any Governmental Entity, Galaxy the Company and Mars Parent shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly (i) notifying the other party of any communication from any Governmental Entity in respect of any filing, investigation or inquiry concerning this Agreement, and (ii) furnishing the other with copies of notices or other communications received by Galaxy the Company or MarsParent, as the case may be, or any of their respective Subsidiaries, from any third party and/or or any Governmental Entity with respect to such transactions. Galaxy The Company and Mars Parent shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, and incorporate the other party’s reasonable comments with respect to, any proposed written communication to any Governmental EntityEntity or any third party. Each of Galaxy the Company and Mars Parent agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.66.5, if any administrative or judicial action Action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy the Company and Mars Parent shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such action 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 Mergers Merger and the other transactions contemplated by this Agreement.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions set forth in of this Agreement, each of Purchaser and the parties hereto Seller shall use all their respective reasonable best efforts (unless, with respect to take promptlyany action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions, and to do promptlydo, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to cause the conditions to the Closing to be satisfied as promptly as reasonably practicable and to consummate and make effective effective, as promptly as reasonably practicable (but subject to Section 3.01), the Mergers and the other transactions contemplated by this AgreementTransactions, including using reasonable best efforts with respect to (i) obtaining preparing and filing promptly and fully all documentation to effect all necessary actions or nonactionsfilings, waiversnotices, consentspetitions, clearancesstatements, approvalsregistrations, submissions of information, applications and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entityother documents, (ii) obtaining all necessary consentsConsents from any Governmental Authority or other Person necessary, approvals proper or waivers from third parties, advisable to consummate the Transactions and (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers executing and the other transactions contemplated by this Agreement and (iv) the execution and delivery of delivering any additional instruments necessary to consummate the transactions contemplated by this Agreement; providedTransactions, howeverin the case of each of clauses (i) through (iii), that other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other Consents relating to (A) Antitrust Laws, which are dealt with in no event shall Galaxy or any of its SubsidiariesSections 7.01(b) and (c), or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee(B) Transferred Assets and Shared Contracts (where applicable), penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this which are dealt with in Section 2.04 and Section 7.01(d), respectively, and (C) Supply Agreement under any contract or agreementpricing, which is dealt with in Section 7.23.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, Each of the parties hereto shall agrees to (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required make an appropriate filing of a Notification and Report Forms under Form pursuant to the HSR Act with respect to the Mergers Transactions (which shall request the early termination of any waiting period applicable to the Transactions under the HSR Act) and any required notification under any other Antitrust Laws as promptly as reasonably practicable following the other transactions contemplated by date of this Agreement, and use reasonable best efforts in any event no later than 5:00 p.m. New York City time on such date that is 25 Business Days following the date hereof, and (ii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all steps necessary to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction so as to enable the parties hereto to consummate the Transactions prior to the Termination Date. Without limiting the foregoing, Purchaser shall promptly take, or cause to be taken, any and all actions reasonably necessary to secure the expiration or termination of any applicable waiting periods period under the HSR Act; Act (ii“HSR Approval”) use or any other Antitrust Law or any other Consent under Antitrust Laws, and resolve any objections asserted with respect to the Transactions under the Federal Trade Commission Act or any other applicable Law raised by any Governmental Authority, in order to prevent the entry of, or to have vacated, lifted, reversed or overturned, any Restraint that would prevent, prohibit or restrict the consummation of the Transactions or delay the consummation of the Transactions beyond the Termination Date, including (i) (A) executing settlements, undertakings, consent decrees, stipulations or other agreements with any Governmental Authority or with any other Person, (B) selling, divesting or otherwise conveying or holding separate particular assets or categories of assets or businesses of Purchaser (including, after the Closing, any Transferred Assets), (C) agreeing to sell, divest or otherwise convey or hold separate any particular assets or categories of assets or businesses of Purchaser (including, after the Closing, any Transferred Assets), (D) terminating existing relationships, contractual rights or obligations of Purchaser, (E) terminating any joint venture or other arrangement, (F) creating any relationship, contractual right or obligation of Purchaser or (G) effectuating any other change or restructuring of Purchaser (and, in each case, entering into agreements or stipulating to the entry of any Judgment by, or filing appropriate applications with, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Authority in connection with any of the foregoing and, in the case of Marsactions by or with respect to the Seller, Holdco by consenting to such action by the Seller (including any Consents required under this Agreement or the Merger Subsother Transaction Documents with respect to such action); provided, cause each that any such action may, at the discretion of their respective affiliates the Seller, be conditioned upon the Closing) and (ii) defending through litigation any claim asserted in a court or administrative or other tribunal by any Person (including any Governmental Authority) in order to use) reasonable best avoid entry of, or to have vacated or terminated, any Restraint that would or would reasonably be expected to prevent the Closing from occurring prior to the Termination Date. All such efforts shall be unconditional and shall not be qualified in any manner and no actions taken pursuant to cooperate with each other in (x) this Section 7.01 shall be considered for purposes of determining whether any filings are required a Material Adverse Effect has occurred or would reasonably be expected to be made with, or consents, permits, authorizations, waivers, clearances, approvals, occur. Purchaser shall respond to and expirations or terminations of waiting periods are required seek to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity resolve as promptly as reasonably practicable any additional information or documents that may be requested pursuant objections asserted by any Governmental Authority with respect to any Law or by such Governmental Entity; the Transactions. The Seller and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (Purchaser and, in the case of Marsthe Seller, Holdco or the Merger Subsshall cause its Affiliates not to, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect the intention to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may that could reasonably be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closingexpected to, materially delaying hinder or delay the Closing expiration or delaying termination of any waiting period under the Closing beyond HSR Act or the End Date; provided that neither Galaxy nor obtaining of the approval of the DOJ or FTC as necessary. Nothing in this Agreement shall require any of its Subsidiaries shall become subject to, or consent party to take or agree to or otherwise take any action with respect to, any requirement, condition, understanding, to its business or operations unless the effectiveness of such agreement or order of a Governmental Authority action is conditioned upon the Closing. The parties acknowledge and agree that Purchaser shall control and direct, and the Seller will cooperate reasonably, subject to sellapplicable Law, to hold separate or otherwise dispose ofwith such direction and control, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above all strategy and decisions with respect to obtaining all Consents from any Governmental Authority in connection with the Transactions, including all filings (including where to file and the timing of their or Galaxy’s assets or businesses such filings) and any withdrawals and/or refiling thereof, strategies, processes, negotiations of settlements (if any), and related proceedings contemplated by this Section 7.01, provided that Purchaser shall consult with and consider in good faith the views of the Seller regarding the form and content of any such action would be material in relation to the assets or business of Holdcofilings, Marswithdrawals, Galaxy refilings, strategies, processes, negotiations and their respective Subsidiaries, taken as a whole, at or after the Effective Timerelated proceedings.
(c) Subject Each of the parties hereto shall use its reasonable best efforts to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep (i) cooperate in all respects with each other apprised of in connection with any filing, submission or written communication with a Governmental Authority in connection with the status of matters Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the completion of the transactions contemplated therebyTransactions, including promptly furnishing the other with copies of notices or other communications received any proceeding initiated by Galaxy or Marsa private person, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for allow the other party reasonable opportunity to review in advance, advance and consider in good faith the views of the other party with respect to such filing, submission, or written communication, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such party from, or given by such party to, the FTC, the DOJ or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) subject to applicable Laws relating to the exchange of information, and to the extent reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any proposed written communication to third Person or any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity Authority in connection with the proposed transactions unless it consults with the other party in advance andTransactions, and (iv) to the extent not prohibited permitted by the FTC, the DOJ or such other applicable Governmental EntityAuthority or other Person, gives give the other party parties hereto reasonably prompt notice of, and the reasonable opportunity to attend and participateparticipate in, such meetings and conferences.
(d) In furtherance Notwithstanding anything to the contrary in Section 2.04, Purchaser and not in limitation of Seller shall cooperate and shall cause their Affiliates to cooperate using their respective commercially reasonable efforts to transfer, assign, obtain, or to cause to be transferred, assigned or obtained, prior to the covenants of the parties contained in this Section 5.6Closing or as soon as practicable thereafter, if any administrative or judicial action or proceedingall Environmental Permits, including any proceeding by a private partyEnvironmental Permit necessary for Purchaser to own, is instituted operate or occupy the Business or the Transferred Assets. In furtherance of the foregoing, (or threatened to be institutedi) challenging any transaction contemplated by this Agreement as violative of any Lawduring the period commencing on the date hereof and continuing until six (6) months after the Closing Date, each of Galaxy Purchaser and Mars Seller shall provide or cause to be provided to the other party all commercially reasonable assistance as is reasonably requested in connection with transferring, assigning, obtaining or securing (and/or terminating, if required by Law or Environmental Law) any such Environmental Permits, and (ii) if any Environmental Permits are not transferred, assigned, obtained or secured prior to the Closing, pending the earlier of obtaining of such Environmental Permit and the expiration of such six (6) month period, Purchaser and Seller shall use commercially reasonable efforts to cooperate in any lawful and reasonable arrangement under which Purchaser shall obtain the benefit of and bear the burdens and obligations of ownership of any such Environmental Permits held by Seller in connection with the ownership or operation of the Business or the Transferred Assets; provided, that Seller shall not be required to pay any consideration therefor or to commence any litigation or offer or grant any accommodation (financial or otherwise) to any third party; provided, further, that, subject to and without in any way limiting Seller’s obligations pursuant to Section 10.02 (including as they relate to Legacy Environmental Release Liabilities), Purchaser shall indemnify, defend and hold harmless the Seller Indemnitees from and against any and all respects Losses arising out of or relating to any Environmental Permit held by Seller for the benefit of Purchaser pursuant to any arrangement established pursuant to clause (ii). Seller’s obligations regarding Environmental Permits pursuant to this Section 7.01(d) shall cease six (6) months after the Closing Date, at which point Seller will be deemed to have fulfilled all related requirements under this Section 7.01(d) of the Agreement and under no circumstances shall the Purchase Price be reduced or the Seller Group be subject to any Liability on account of the failure to obtain any Environmental Permit pursuant to this Section 7.01(d).
(e) Notwithstanding anything to the contrary in this Agreement, no member of the Seller Group shall have any obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with each other and shall use the performance of their respective reasonable best efforts to contest and resist any such action obligations under this Section 7.01 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 Mergers and the other transactions contemplated by this AgreementSection 2.04.
Appears in 1 contract
Sources: Asset Purchase Agreement (Goodyear Tire & Rubber Co /Oh/)
Efforts. (a) Subject to Upon the terms and subject to the conditions set forth in of this Agreement, each of the parties hereto Parties shall use all its commercially reasonable best efforts to take promptlytake, or cause to be taken, all actions, and to do promptlydo, or cause to be done, and to assist and cooperate with the other parties Parties in doing, all things necessary, proper or advisable under applicable Laws Law to consummate and make effective the Mergers and the other transactions contemplated by this AgreementAgreement as promptly as practicable, including including: (i) obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals, the preparation and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making filing as promptly as practicable of all necessary registrations applications, notices, petitions, registrations, filings, ruling requests, and filings other documents, and the taking of all steps as may be necessary necessary, to obtain an approvalas promptly as practicable all consents, clearance waivers, licenses, orders, registrations, approvals, permits, rulings, authorizations and clearances necessary or waiver from, or advisable to avoid an action or proceeding by, be obtained from any Governmental EntityAuthority in order to consummate the transactions contemplated by this Agreement, (ii) the obtaining of all other necessary consentsConsents, approvals lease estoppels or waivers from third parties, provided that neither the Seller nor any of the Acquired Entities shall be obligated to make any payment in connection with seeking such Consents, lease estoppels or waivers or shall have any liability for failure to obtain any such Consents or waivers, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement Agreement, and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the other terms and conditions herein provided and without limiting the foregoing, the parties hereto Parties shall (and shall cause their respective Subsidiaries to):
(i) promptly, but use their commercially reasonable efforts to cooperate with one another in no event later than fifteen (15A) Business Days after the date hereof determining which filings are required (or such later date as may be mutually agreed in writing considered by the parties hereto), file any and all required Notification and Report Forms Parties to be advisable) under the HSR Act and (B) to make their respective filings under the HSR Act within 10 business days after execution of this Agreement;
(ii) promptly notify each other of any communication concerning this Agreement and the transactions contemplated hereunder from any Governmental Authority and consult with respect and permit the other Party to review in advance any proposed communication concerning this Agreement and the transactions contemplated hereunder to any Governmental Authority;
(iii) not agree to participate in any meeting or substantive discussion (including any discussion relating to the Mergers antitrust merits, any potential remedies, commitments or undertakings, the timing of any waivers, consents, approvals, permits, orders or authorizations, and any agreement regarding the other timing of consummation of the transactions contemplated by this Agreement) with any Governmental Authority relating to any filings or investigation concerning this Agreement or the transactions contemplated hereunder unless it consults with the other Party and its Representatives in advance and invites the other Party’s Representatives to attend unless the Governmental Authority prohibits such attendance;
(iv) promptly furnish the other Party, subject in appropriate cases to appropriate confidentiality agreements to limit disclosure to outside lawyers and consultants, with draft copies prior to submission to a Governmental Authority, with reasonable time and opportunity to comment, of all correspondence, filings and communications (and memoranda setting forth the substance thereof) that they, their Subsidiaries or their respective Representatives intend to submit to any Governmental Authority, it being understood that correspondence, filings and communications received from any Governmental Authority shall be immediately provided to the other Party upon receipt;
(v) promptly furnish the other Party, subject in appropriate cases to appropriate confidentiality agreements to limit disclosure to outside lawyers and consultants, with such necessary information and reasonable assistance as such other Party and its Subsidiaries may reasonably request in connection with their preparation of necessary filings, registrations or submissions of information to any Governmental Authority, including any filings necessary or appropriate under the provisions of the HSR Act; and
(vi) deliver to the other Party’s outside counsel complete copies of all documents furnished to any Governmental Authority as part of any filing.
(c) The Buyer shall use its reasonable best efforts to cause eliminate any concern on the expiration or termination part of any applicable waiting periods Governmental Authority regarding the legality of the transactions contemplated by this Agreement under the HSR Act; (ii) use (and. Notwithstanding anything herein to the contrary, in the case of Mars, Holdco Buyer and Buyer Parent shall not be required by this Section to take or the Merger Subs, cause each of their respective affiliates agree to use) reasonable best efforts to cooperate with each other in (x) determining whether undertake any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated herebyaction, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of entering into any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwiseother arrangement, that would (i) require the sale, divestiture or disposition of any assets of the Buyer, the Buyer Parent, the Company or businesses any of Mars, Holdco or their respective Subsidiaries or affiliatesAffiliates, or of Galaxy or its Subsidiaries and (yii) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ Buyer’s freedom of action with respect to, or its ability to retainconsolidate and control, one the Company, Acquired Entities or more any of its their assets or businesses or any of the Buyer’s or its SubsidiariesAffiliates’ other assets or businesses or (including iii) limit the Surviving Corporations’) businesses, product lines Buyer’s ability to acquire or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry ofhold, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect exercise full rights of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action ownership with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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 participateShares.
(d) In furtherance The Buyer, the Buyer Parent and not in limitation of the covenants of Seller shall proceed with the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction transactions contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each unless a court or other and shall use their respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, Governmental Authority has issued an injunction or other order, whether temporary, preliminary or permanent, that is in effect order prohibiting the closing of the transactions and that prohibitsinjunction or order has been upheld by an appellate court or other appellate Governmental Authority.
(e) In addition to the foregoing, prevents the Buyer agrees to provide such assurances as to financial capability, resources and creditworthiness as may be reasonably requested by any third party whose consent or restricts consummation of the Mergers and the other transactions contemplated by approval is sought under this Agreement.
(f) Whether or not the Acquisition is consummated, the Buyer and the Seller shall each be responsible for 50% of all filing or application fees payable in connection with any filings or submissions to, or obtaining any consents, authorizations, orders, approvals or waivers from, any Governmental Authority under the HSR Act pursuant to this Section 5.4, provided that any such amount required to be paid by the Company prior to Closing that remains unpaid at the Closing shall be deemed a Transaction Expense for purposes of this Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Oil States International, Inc)
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall use all reasonable best efforts to take promptly, or cause to be taken, all actions, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Mergers Merger and the other transactions contemplated by this AgreementAgreement as promptly as practicable after the date hereof and in any event prior to the End Date, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, approvals and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any Actions, lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers Merger and the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars the Company or any of its Subsidiaries or Holdco be required (nor, without the prior written consent of Parent, shall the Company and its Subsidiaries be permitted) to pay prior to the Effective Time any fee, penalty or other consideration (other than customary filing and notification fees with Governmental Entities and other nominal amounts) to any third party for any consent or approval required for or triggered by the consummation of the transactions contemplated by this Agreement under any contract or agreementagreement or otherwise.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto Company and Parent shall (and, to the extent applicable, Parent shall cause the Equity Investors to) (i) promptly, but in no event later than fifteen (15A) Business Days after the date hereof (file or such later date as may cause to be mutually agreed in writing by the parties hereto), file filed any and all required Notification notification and Report Forms report forms under the HSR Act with respect to the Mergers Merger and the other transactions contemplated by this Agreement (including the transactions contemplated by the Investment Agreement) no later than ninety (90) calendar days after the date hereof (provided, that (1) if the Company and Parent have not filed the required notification and report forms under the HSR Act by the thirtieth (30th) calendar day from the date hereof, the Company and Parent will consult with one another in good faith to mutually determine whether to accelerate the filing of the required notification and report forms under the HSR Act, and (2) if at any point prior to the Company and Parent filing the required notification and report forms under the HSR Act, Parent determines in good faith that it would be necessary, proper or advisable to accelerate such filing in order to obtain the expiration of the waiting period under the HSR Act as promptly as practicable, Parent shall notify the Company thereof in writing, and Parent and the Company shall file the required notification and report forms under the HSR Act as promptly as practicable thereafter), and (B) use all reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; , (ii) use no later than thirty (and30) calendar days after the date hereof, make or cause to be made the requisite initial submissions for the required filings specified in the case Schedule 6.1(c) of Mars, Holdco or this Agreement with respect to the Merger Subsand the other transactions contemplated by this Agreement (including the transactions contemplated by the Investment Agreement), cause each of their respective affiliates to use(iii) use reasonable best efforts to cooperate with each other in (xA) determining whether any other filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (yB) timely promptly making or causing to be made all such filings and timely obtaining all such consents, permits, authorizations authorizations, waivers, clearances, approvals or approvals; expirations or terminations of waiting periods, (iiiiv) supply or cause to be supplied to any Governmental Entity as promptly as practicable any additional information or documents documentary material that may be requested pursuant to any Law or by such Governmental Entity; Entity and (ivv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction authorities, or any other person Governmental Entity or Person may assert under any applicable antitrust Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any applicable antitrust Law that may be asserted by any Governmental Entity with respect to the Mergers Merger so as to enable the Closing to occur as soon promptly as reasonably possible practicable after the date hereof (and in any event no later than the End Date), including, without limitation, including (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture divestiture, license, hold separate or disposition of any and all of the share capital or other equity voting interest, assets (whether tangible or businesses intangible), businesses, divisions, operations, products or product lines of Mars, Holdco Parent or their respective its Subsidiaries or affiliates, Affiliates or of Galaxy the Company or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco Parent’s or its Subsidiaries’ (including the Surviving Corporations’Corporation’s) or affiliatesAffiliates’ freedom of action with respect to, or its their ability to retain, one or more of its or its their Subsidiaries’ (including the Surviving Corporations’) Corporation’s), assets (whether tangible or intangible), businesses, divisions, operations, products or product lines or assets(such actions described in clause (iv), “Divestiture Actions”), in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which Action that would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided provided, that neither Galaxy the Company nor any of its Subsidiaries shall be required to become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to divest, license, hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets (whether tangible or business intangible), businesses, divisions, operations, products or product lines of Galaxy the Company or any of its SubsidiariesAffiliates, unless such requirement, condition, understanding, agreement or order is binding on Galaxy or otherwise applicable to the Company only from and after the Effective Time in the event that the Closing occurs; provided that none provided, further, that, anything to the contrary notwithstanding, (1) without limiting Parent’s obligations under this Section 5.8, neither the Company nor any of Mars, Holdco or the Merger Subs its Subsidiaries shall be required permitted to take take, or propose or agree to take, any Divestiture Action without the prior written consent of the actions described in clauses Parent (iv)(x) or (y) above provided, that such prior written consent when provided by Parent shall also constitute Parent’s prior written consent with respect to the taking of such Divestiture Action for purposes of Section 5.1(b)(x)), and (2) Parent shall have no obligation to take, or propose or agree to take, or to cause any Equity Investor or Affiliate of their Parent or Galaxy’s assets any Equity Investor to take, or businesses if such action would be material in relation propose or agree to take, any Divestiture Action that (I) is not expressly conditioned on the assets consummation of the Closing, (II) involves the assets, properties and rights of any Equity Investor or business any Affiliates of Holdcoany Equity Investor other than Parent, Marsthe Company, Galaxy Walnut and their respective Subsidiariessubsidiaries or (III) would, or would reasonably be expected to, individually or in the aggregate, have a material adverse effect on the business, taken as a whole, at or whole after the Effective TimeClosing, of the pro forma Parent and its Subsidiaries (together with the Surviving Corporation and its Subsidiaries) (a “MAE Detriment”).
(c) Subject The Company, Parent and Merger Sub shall (and, to the extent applicable, Parent shall cause the Equity Investors to) cooperate and consult with each other in connection with the making of all registrations, filings, notifications, communications, submissions and any other actions pursuant to this Section 5.8(c), and, subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy the Company, on the one hand, and Mars Parent and Merger Sub, on the other hand, shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy the Company or MarsParent, as the case may be, or any of their respective SubsidiariesSubsidiaries or Affiliates, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy Subject to applicable Law relating to the exchange of information, the Company, on the one hand, and Mars Parent and Merger Sub, on the other hand, shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed notifications or filings and any written communications or submissions, and with respect to any such notification, filing, written communication or submission, any documents submitted therewith to any Governmental Entity; provided, however, that materials may be redacted (x) to remove references concerning the valuation of the businesses of the Company and its Subsidiaries, or proposals from third parties with respect thereto, (y) as necessary to comply with contractual agreements and (z) as necessary to address reasonable privilege or confidentiality concerns. The parties, as they deem advisable and necessary, shall be entitled to designate any competitively sensitive material provided to the other under this Section 5.8(c) as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to outside antitrust counsel of the recipient and will not be disclosed to other Representatives of the recipient unless express written permission is obtained in advance from the source of the materials or its legal counsel. Each of Galaxy the Company, Parent and Mars Merger Sub agrees not to participate in any substantive meeting or discussion, either in person person, by videoconference, or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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. Without limiting Parent’s obligations under this Section 5.8, Parent shall (subject to reasonable and good faith consultation in advance with the Company) control all decisions relating to (x) the process and strategy of seeking all clearances, consents or approvals under the HSR Act and any other applicable Laws and from any Governmental Entity, that are required in connection with the transactions contemplated by this Agreement, and (y) the defense of the transactions contemplated by this Agreement in any investigation or litigation by, or negotiations with, any Governmental Entity relating to this Agreement, including any communications with any Governmental Entity relating to any contemplated or proposed Divestiture Actions and other remedies.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.65.8, but, for the avoidance of doubt, subject to the last proviso to the last sentence of Section 5.8(b) and Section 5.8(e), if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy the Company, Parent and Mars Merger Sub shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such action Action or proceeding and to have vacated, lifted, reversed or overturned any Action, decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Mergers Merger and the other transactions contemplated by this Agreement.
(e) Anything to the contrary notwithstanding, Parent’s obligations under this Section 5.8 to take or cause to take any actions to permit the Closing and the satisfaction of conditions to Closing to occur and to remove regulatory and other impediments to Closing and the satisfaction of conditions to Closing as promptly as practicable or without delay shall be subject to the right of Parent, in Parent’s good faith reasonable discretion, to take reasonable periods of time in order to advocate and negotiate with Governmental Authorities with respect to such actions.
(f) Neither Parent nor any of its Affiliates shall knowingly take any action that would prevent, materially delay or materially impede the consummation of the Merger or the other transactions contemplated hereby or under the Investment Agreement, or would otherwise adversely affect in any material respect the ability of Parent and Merger Sub to consummate the Merger or the other transactions contemplated hereby or under the Investment Agreement (including by acquiring or agreeing to acquire by merging or consolidating with, or by purchasing the assets of or equity in, any Person (a “Specified Acquisition”) or enter into any new line of business, if the entering into of a definitive agreement relating to or the consummation of such a Specified Acquisition or the entering into such new line of business, as applicable, could reasonably be expected to prevent, materially delay or materially impede the obtaining of, or adversely affect in any material respect the ability of Parent and Merger Sub to procure, any authorizations, consents, orders, declarations or approvals of any Governmental Entity or the expiration or termination of any applicable waiting period necessary to consummate the transactions contemplated hereby or under the Investment Agreement. Nothing in this Section 5.8(f) is intended to impede any Person from continuing to operate its existing lines of business in the ordinary course.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall use all its commercially reasonable best efforts to take promptlytake, or cause to be taken, all actions, and to do promptlydo, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Applicable Laws or otherwise to consummate and make effective the Mergers and the other transactions contemplated by this AgreementTransactions as promptly as practicable, including (i) the obtaining of all necessary actions or nonactionsnon-actions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, periods from Governmental Entities Authorities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental EntityAuthority, including in connection with any Regulatory Law (all of the foregoing, collectively, the “Governmental Consents”), (ii) the delivery of required notices to, and the obtaining of all necessary consents, approvals or waivers 66 from third parties, Persons and (iii) the defending of any lawsuits Proceedings by any Governmental Authority or any other legal proceedings, whether judicial or administrative, Person challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this AgreementTransactions; provided, however, provided that in no event shall Galaxy the Company or any of its Subsidiaries, or Mars or any of its the Company Subsidiaries or Holdco be required to pay prior to the Effective Time Closing any fee, penalty or other consideration to any third party Person for any consent or approval required for the consummation of the transactions contemplated by this Agreement Transactions under any contract Contract. Parent shall not and shall cause its Affiliates to not make any investment, acquisition, joint venture or agreementany other business combination if such investment, acquisition, joint venture or business combination would reasonably be expected to materially delay, impede or prevent the satisfaction of the Offer Conditions set forth in clauses (ii) or (iii)(A) of Exhibit A (but for purposes of clause (iii)(A) of Exhibit A only if any such Order or Applicable Law arises under any Regulatory Law. The Company shall not and shall cause the Company Subsidiaries to not make any investment, acquisition, joint venture or any other business combination if such investment, acquisition, joint venture or business combination would reasonably be expected to materially delay, impede or prevent the satisfaction of the Offer Conditions set forth in clauses (ii) or (iii)(A) of Exhibit A (but for purposes of clause (iii)(A) of Exhibit A only if any such Order or Applicable Law arises under any Regulatory Law.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto Company and Parent shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (xi) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods Governmental Consents are required to be obtained from, any third parties Governmental Authorities (including in any foreign jurisdiction in which the Company or other Governmental Entities in connection with any Company Subsidiary is operating any business) and (ii) to the execution extent not made prior to the date hereof, timely making or causing to be made all such applications and delivery of this Agreement filings as reasonably determined by Parent and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity Company as promptly as practicable (and in any additional information event within 10 Business Days after the date hereof with respect to filings or documents submissions required under the HSR Act). Each party shall supply as promptly as practicable such information, documentation, other material or testimony that may be requested pursuant to by any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated herebyAuthority, including taking (andby complying at the earliest reasonably practicable date with any request under or with respect to the HSR Act, in the case of MarsEU Merger Regulation, Holdco any other Governmental Consent and any such other Applicable Laws for additional information, documents or other materials received by Parent or the Merger Subs, cause each Company or any of their respective affiliates Subsidiaries from the FTC or the DOJ, or any other Governmental Authority in connection with such applications or filings or the Transactions.
(c) Subject to take) Section 6.11(e), Parent and Merger Sub shall take all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade CommissionFTC, the Antitrust Division of the United States Department of JusticeDOJ, state antitrust enforcement authorities authorities, or competition authorities of any other nation or other jurisdiction (including multinational or supranational), or any other person Person, may assert under any Applicable Law with respect to the transactions contemplated herebyTransactions, and to avoid or eliminate each and every impediment under any Applicable Law that may be asserted by any Governmental Entity Person with respect to the Mergers Merger, in each case so as to enable the Closing Transactions to occur as soon as reasonably possible (and in any event no later than the End Date), including. Neither the Company nor any Company Subsidiary shall, without limitationParent’s prior written consent, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy Parent nor any of its Subsidiaries shall become subject toshall, without the Company’s prior written consent, discuss or consent or agree commit to or otherwise take any action with respect to, extension of any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy waiting period under any Applicable Law or any agreement not to consummate the Transactions. None of its SubsidiariesParent, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco Merger Sub or the Merger Subs Company shall be required to take any action pursuant to this Section 6.11 unless it is expressly conditioned on the effectiveness of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective TimeMerger.
(cd) Subject Without limiting the foregoing and subject to applicable legal limitations and the instructions of any Governmental EntityAuthority, Galaxy each of the Company and Mars shall Parent agrees (i) to cooperate and consult with each other in connection with the making of all registrations, filings, notifications, communications, submissions and any other material actions pursuant to this Section 6.11, (ii) to furnish to the other such necessary information and assistance as the other may reasonably request in connection with its preparation of any notifications or filings, (iii) to keep each other apprised of the status of matters relating to the completion of the transactions contemplated therebytherein, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may besuch party from, or any of their respective Subsidiariesgiven by such party to, from any third party and/or or any Governmental Entity Authority with respect to such transactions. Galaxy and Mars shall the Transactions, (iv) to permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of to incorporate the other party party’s reasonable comments in connection with, any proposed written communication to be given by it to any Governmental Entity. Each of Galaxy Authority with respect to obtaining the necessary approvals for the Transactions, and Mars agrees (v) not to participate in any substantive meeting or discussion, either discussion in person or by telephone, telephone expected to address substantive matters related to the transactions contemplated herein with any Governmental Entity Authority in connection with the proposed transactions unless it consults with the other party in advance andTransactions unless, to the extent not prohibited by such Governmental EntityAuthority, it gives the other party reasonable notice thereof and the opportunity to attend and participateobserve. The parties shall take commercially reasonable efforts to share information protected from disclosure under the attorney-client privilege, work product doctrine, joint defense privilege or any other privilege pursuant to this Section 6.11 in a manner so as to preserve any applicable privilege. Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.11(d) as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent or the Company, as the case may be) or its legal counsel.
(de) In furtherance and not Notwithstanding anything to the contrary in limitation this Agreement, none of the covenants Company, Parent, Merger Sub or any of their respective Subsidiaries shall be required to (and the Company may not, without the prior written consent of Parent) become subject to, consent to, or offer or agree to, or otherwise take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (i) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the parties contained Company, the Surviving Corporation, Parent, Merger Sub or any of their respective Subsidiaries or Affiliates, (ii) conduct, restrict, operate, invest or otherwise change the assets, business or portion of business of the Company, the Surviving Corporation, Parent, Merger Sub or any of their respective Subsidiaries or Affiliates in any manner, or (iii) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Corporation, Parent, Merger Sub or any of their respective Subsidiaries or Affiliates.
(f) For purposes of this Section 5.6Agreement, if any administrative “Regulatory Law” means the ▇▇▇▇▇▇▇ Act, the ▇▇▇▇▇▇▇ Act, the HSR Act, the Federal Trade Commission Act, the EC Merger Regulation, and all other federal, state, foreign, multinational or judicial action supranational Applicable Laws or proceedingOrders, including any proceeding by a private partyantitrust, is instituted (competition or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanenttrade regulation Applicable Laws, that is in are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening competition through merger or acquisition and including any Applicable Laws that prohibits, prevents or restricts consummation of the Mergers and the other transactions contemplated by this Agreementrelate to foreign investments.
Appears in 1 contract
Efforts. (a) Subject to On the terms and subject to the conditions of this Agreement, each Party shall use its commercially reasonable efforts to cause the Closing to occur on or prior to the Termination Date, including taking all actions necessary to comply promptly with all legal requirements that may be imposed on it or any of its Affiliates with respect to the Closing. Each Party shall not and shall not permit any of its respective Affiliates to, take any actions that would, or that could reasonably be expected to, result in any of the conditions set forth in this AgreementArticle II not being satisfied. Without limiting the foregoing or the provisions set forth in Section 5.02, each of the parties hereto Party shall use all its commercially reasonable best efforts to take promptlycause the Closing to occur on or prior to the Termination Date.
(b) Prior to the Closing, or each Party shall, and shall cause its Affiliates to, use their commercially reasonable efforts to be taken, all actionsobtain, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doingobtaining, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Mergers and the other transactions contemplated by this Agreement, including (i) obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) obtaining all necessary consents, approvals or waivers Consents from third parties, (iii) defending any lawsuits parties necessary or other legal proceedings, whether judicial or administrative, challenging this Agreement or appropriate to permit the consummation of the Mergers and the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event neither Buyer, the Companies, Seller nor any other Subsidiary of Seller shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior or commit to pay any amount to (or incur any obligation in favor of) any Person from whom any such Consent may be required (other than nominal filing or application fees). The Parties acknowledge that Seller will seek, as part of any Consent, the release of Seller from any and all guarantees, indemnities, letters of credit, letters of comfort, commitments, understandings, agreements and other obligations related in any way to Contracts subject to such Consents. Nothing in this Section 5.04(b) shall require Buyer or Seller to post any security or collateral or make any payment in order to obtain any Consent. For the avoidance of doubt, and notwithstanding anything to the Effective Time contrary in this Agreement, Seller shall be solely responsible for obtaining the Consents set forth on Section 3.03 of the Disclosure Schedules and for obtaining the release of Seller from any feeand all guarantees, penalty or indemnities, letters of credit, letters of comfort, commitments, understandings, agreements and other consideration obligations related in any way to any third party for any consent or approval required for the consummation of such Consents, except as set forth in Sections 5.07(d) and 5.07(e). The Parties acknowledge that certain Consents and waivers with respect to the transactions contemplated by this Agreement may be required from parties to the Contracts and Company Leases listed in the Disclosure Schedules and that such Consents and waivers may not be obtained prior to Closing. If a Consent is not obtained, or if an attempted assignment of a Property or Contract would be ineffective or would adversely affect the rights of Seller, any Company, or any other Subsidiary of Seller such that the Companies or Buyer would not in fact receive all such rights of the Property or Contract, the Parties will cooperate in a mutually agreeable arrangement, to the extent reasonably practicable, under which the Buyer would obtain the benefits and assume the obligations thereunder in accordance with this Agreement, including independent sub-contracting, sub-licensing or sub-leasing to such Buyer which Seller would enforce for the benefit of Buyer, with Buyer assuming Seller’s (or Seller’s Affiliates’) obligations, against a third party thereto. Other than as expressly set forth in this Section 5.04(b) and Section 7.03, Seller shall not have any contract Liability whatsoever to Buyer arising out of or agreementrelating to the failure to obtain any Consents or waivers that may be required in connection with the transactions contemplated by this Agreement or because of the termination of any Contract as a result thereof. Buyer acknowledges that no representation, warranty or covenant of Seller contained herein shall be breached or deemed to be inaccurate or breached as a result of the failure to obtain any such Consent or waiver. This Section 5.04(b) does not relate to Coal Sales Agreements, such items being the subject of Section 5.04(c).
(bc) Subject Prior to the terms and conditions herein provided and without limiting the foregoingClosing, the parties hereto Seller shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the use commercially reasonable efforts to obtain all Consents required from third parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect Coal Sales Agreements set forth in Section 5.04(c) to the Mergers and Disclosure Schedules that are necessary to consummate the other transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (andsubject to the following sentence, in the case of Mars, Holdco assign or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) takeotherwise transfer, or cause to be takenassigned or otherwise transferred, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its the Companies, all of Seller’s or its Subsidiaries’ (including the Surviving Corporations’) businessesAffiliate’s right, product lines or assetstitle, and interest in each case as may be required in order and to avoid commencement of litigation seeking the entry ofsuch Coal Sales Agreements; provided, or to effect the dissolution ofhowever, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy Buyer nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs Seller shall be required to take amend any Coal Sales Agreement or to pay or commit to pay any amount to (or incur any obligation in favor of) any Person from whom any such Consent may be required. The Parties acknowledge that as a result of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised impending sale of the status Companies to Buyer pursuant to this Agreement, Seller shall not transfer any Coal Sales Agreement from an Affiliate of matters relating Seller to a Company without first obtaining the completion written consent of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactionscounterparty thereto. Galaxy and Mars shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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.
(d) In furtherance and not in limitation of the covenants of the parties contained Nothing in this Section 5.6, if 5.04(c) shall require Buyer to post any administrative security or judicial action collateral or proceeding, including make any proceeding by a private party, is instituted (or threatened payment in order to be instituted) challenging any transaction contemplated by this Agreement as violative obtain an assignment of any LawCoal Sales Agreements. [REDACTED] Buyer acknowledges that no representation, each warranty or covenant of Galaxy and Mars Seller contained herein shall cooperate in all respects with each other and shall use their respective reasonable best efforts be breached or deemed inaccurate or breached as a result of the failure to contest and resist obtain any such action Consent or proceeding and waiver 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 Mergers and the other transactions contemplated by this a Coal Sales Agreement.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall use all its reasonable best efforts to take promptly, or cause to be taken, all actionsto, and to do promptly, or cause to be done, and to shall assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to (i) consummate and make effective the Mergers Offer, the Merger and the other transactions contemplated by this Agreement, including ; (iii) obtaining obtain all necessary actions or nonactions, waivers, consents, clearances, consents and approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Company Approvals and the Mars Specified Parent Approvals, from Governmental Entities and the making of all necessary make such registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, ; (iiiii) obtaining obtain all necessary consents, approvals or waivers from third parties, ; (iiiiv) defending defend any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement Agreement; and (ivv) the execution execute and delivery of deliver any additional instruments reasonably necessary to consummate the transactions contemplated by this Agreement; provided, however, that nothing in no event this Agreement, including without limitation, any provision of this Section 6.6, shall Galaxy require, or be construed to require, Parent or any of its Subsidiariesaffiliates (A) if Parent and its affiliates shall have made the proffers contemplated by the exception to clause (B) of this proviso and, thereafter, any court having jurisdiction enters any Order (other than a temporary restraining order or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for similar temporary provisional relief) that prohibits the consummation of the transactions contemplated Offer or the Merger on the basis of any antitrust or competition law or (B) to proffer to, or agree to, sell, divest, lease, license, transfer, dispose of or otherwise encumber or hold separate and agree to sell, divest, lease, license, transfer, dispose of or otherwise encumber before or after the Acceptance Time or the Effective Time, any assets, licenses, operations, rights, product lines, businesses or interest therein of Parent, the Company or any of their respective affiliates (or to consent to any sale, divestiture, lease, license, transfer, disposition or other encumberment by this Agreement under the Company of any contract of its assets, licenses, operations, rights, product lines, businesses or agreementinterest therein or to any agreement by the Company to take any of the foregoing actions) or to agree to any material changes (including, without limitation, through a licensing arrangement) or restriction on, or other impairment of Parent’s ability to own or operate, any such assets, licenses, operations, rights, product lines, businesses or interests therein or Parent’s ability to vote, transfer, receive dividends or otherwise exercise full ownership rights with respect to the stock of the Company or the Surviving Corporation except for proffers and agreements to amend or modify Contracts between the Company and/or its Subsidiaries and third parties or sell, divest, lease, license, transfer, dispose or otherwise encumber, or to agree to changes, restrictions or other impairments with respect to, any of Parent’s or the Company’s (or their respective affiliates’) assets, licenses, operations, rights, product lines, businesses or interest therein, where such amended, sold, divested, leased, licensed, transferred, disposed or encumbered Contracts, assets, licences, operations, rights, product lines, businesses and interests in the aggregate shall not have accounted for more than $50 million of the parties’ and their respective affiliates’ gross revenues for the 12 months ending June 30, 2007; provided, further, that Parent shall be entitled to compel the Company or its Subsidiaries to take any of the actions referred to above (or agree to take such actions) if such actions are only effective after the Effective Time. Subject to applicable Laws, Parent shall have the right to direct all matters with any Governmental Entity consistent with its obligations hereunder but shall keep the Company appraised of all developments with respect thereto.
(b) Subject to the terms and conditions herein provided set forth in this Agreement and without limiting Section 6.6(a) or the foregoing, provisos therein the parties hereto Company and Parent shall (i) promptly, but in no event later than fifteen (15) Business Days 15 business days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto)hereof, file make their respective filings and thereafter make any and all other required Notification and Report Forms submissions under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreementas soon as reasonably practicable, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (andbut in no event later than January 15, 2008, in the case of Marsfilings and submissions under Council Regulation (EC) 139/2004 of the European Community, Holdco or as amended (the “EC Merger SubsRegulation”), cause each of their respective affiliates to use(ii) use reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations waivers or terminations of waiting periods approvals are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy the Company or MarsParent, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy The Company and Mars Parent shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy the Company and Mars Parent agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions transaction unless it 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.
(dc) In furtherance and not in limitation of Subject to the covenants of the parties provisos contained in this Section 5.66.6(a), if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any LawAgreement, each of Galaxy the Company and Mars Parent shall cooperate in all respects with each the other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers and the other transactions contemplated by this Agreement, other than any Order referred to in clause (A) of the first proviso of Section 6.6(a). Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 6.6 shall limit a party’s right to terminate this Agreement pursuant to Section 8.1(b) or 8.1(c) so long as such party has, prior to such termination, complied with its obligations under this Section 6.6.
Appears in 1 contract
Sources: Merger Agreement (Respironics Inc)
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each Each of the parties hereto Company, Parent and Merger Sub shall use all its respective reasonable best efforts to take promptly(i) take, or cause to be taken, all actions, appropriate action and to do promptlydo, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws Law or otherwise to consummate and make effective the Mergers and Merger, the other transactions contemplated by this Agreement, including (i) obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) obtaining all necessary consents, approvals or waivers from third parties, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers Offer and the other transactions contemplated by this Agreement and as promptly as practicable, (ivii) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
take all such actions (bif any) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration or termination of any applicable waiting the notice periods under Competition Laws with respect to such transactions as promptly as practicable after the HSR Act; execution of this Agreement, (iiiii) use obtain (andA) from any Governmental Entity any consents, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consentslicenses, permits, authorizations, waivers, clearances, approvals, and expirations authorizations or terminations of waiting periods are orders required to be obtained fromby Parent, Merger Sub or the Company, or any third parties of their respective Subsidiaries, to effect the Closing as promptly as practicable, and in any event not later than three (3) Business Days prior to the Outside Date, and to avoid any action or proceeding by any Governmental Entity or any other Governmental Entities Person, in connection with the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking the Merger and the Offer, and (andB) from any Third Party any consents or notices that are required to be obtained or made by Parent, in the case of Mars, Holdco Merger Sub or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may beCompany, or any of their respective Subsidiaries, in connection with the transactions contemplated by this Agreement in the case of this clause (B), only to the extent that Parent, Merger Sub and the Company reasonably determine, after consultation and cooperation with one another, that such consent or notice should be obtained or made, (iv) cause the satisfaction of all conditions to the Offer set forth in Annex A and cause the satisfaction of all conditions to the Merger set forth in Article 7, in each case, within its control (v) defend and seek to prevent the initiation of all actions, lawsuits or other legal, regulatory or other Proceedings to which it is a party challenging or affecting this Agreement or the consummation of the transactions contemplated by this Agreement, in each case until the issuance of a final, nonappealable Order, (vi) seek to have lifted or rescinded any injunction or restraining order that may adversely affect the ability of the parties to consummate the transactions contemplated hereby, in each case until the issuance of a final, nonappealable Order, (vii) prepare and file as promptly as practicable all documentation to effect all necessary applications, notices, petitions, filings, ruling requests, and other documents and to obtain as promptly as practicable all consents, waivers, licenses, orders, registrations, approvals, permits, rulings, authorizations and clearances necessary or advisable to be obtained from any third Third Party or any Governmental Entity to consummate the Merger, the Offer or the other transactions contemplated by this Agreement, (viii) take all reasonable steps as may be necessary to obtain all such consents and approvals, and (ix) as promptly as reasonably practicable after the date hereof, make all necessary filings, and thereafter make any other required submissions, and pay any fees due in connection therewith, with respect to this Agreement, the Merger and the Offer required under any other applicable Law. Notwithstanding anything to the contrary herein, the Company shall not be required prior to the Effective Time to pay any consent or other similar fee, “profit-sharing” or other similar payment or other consideration (including increased rent or other similar payments or any amendments, supplements or other modifications to (or waivers of) the existing terms of any Contract), or the provision of additional security (including a guaranty) or otherwise incur or assume or agree to incur or assume any liability that is not conditioned upon the consummation of the Merger, to obtain any consent, waiver or approval of any Person (including any Governmental Entity) under any Contract.
(b) Each of Parent and the Company agrees that, between the date of this Agreement and the Effective Time, each of Parent the Company shall not (and the Company shall cause the Company Subsidiaries not to) (i) enter into or consummate any agreements or arrangements for an acquisition (via stock purchase, merger, consolidation, purchase of assets or otherwise) of any ownership interest in, or assets of, any Person, if such ownership interest or assets would reasonably be expected to result in any delay in obtaining, or the failure to obtain, any regulatory approvals required in connection with the transactions contemplated hereby (including the Merger and the Offer), or (ii) take or agree to take any other action (including entering into agreements with respect to any equity investments, joint ventures, acquisitions, mergers, consolidations or business combinations) which would reasonably be expected to result in any delay in obtaining, or which would reasonably be expected to result in the failure to obtain, any approvals of any Governmental Entity required in connection with the transactions contemplated hereby (including the Merger and the Offer), or which would otherwise reasonably be expected to prevent or delay the Merger or the Offer.
(c) Without limiting the generality of anything contained in this Section 6.4, each party and/or hereto shall (i) give the other parties prompt notice of the making or commencement of any request, inquiry, investigation, action or Proceeding by or before any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the Merger, the Offer or any of the other transactions contemplated by this Agreement, (ii) keep the other parties notified as to the status of any such request, inquiry, investigation, action or other Proceeding, (iii) promptly notify the other parties of any oral or written communication to or from any Governmental Entity regarding the Merger, the Offer or any of the other transactions contemplated by this Agreement and (iv) promptly provide to the other parties copies of any written communications received or provided by such party, or any of its Subsidiaries, from or to any Governmental Entity with respect to the Merger, the Offer or any other transactions contemplated by this Agreement; provided that Parent and the Company may, as each reasonably and in good ▇▇▇▇▇ ▇▇▇▇▇ advisable and necessary, designate any competitively sensitive material provided to the other under this Section as “Antitrust Counsel Only Material.” Such materials and the information contained therein shall be given only to the outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent or the Company, as the case may be) or its legal counsel. Each party reasonable opportunity hereto will consult and cooperate with the other parties with respect to and provide any necessary information and assistance as the other parties may reasonably request with respect to all notices, submissions, or filings made by such party with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement or any transactions contemplated by this Agreement and will permit the other parties to review and discuss in advance, advance and consider in good faith the views of the other party parties in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with the proposed transactions unless it consults with Merger, 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.
(d) In furtherance and not in limitation Offer or any of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers and the other transactions contemplated by this Agreement. In addition, except as may be prohibited by any Governmental Entity or by any applicable Law, in connection with any such request, inquiry, investigation, action or other Proceeding other than the matters contemplated by Section 6.11, in connection with or related to the Merger, the Offer or the other transactions contemplated hereby, each party hereto will consult with the other parties in advance and give the other parties or their authorized representatives the opportunity to be present at each meeting or teleconference relating to such request, inquiry, investigation, action or other Proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation, action or other Proceeding. Notwithstanding anything to the contrary herein, Parent shall, after consulting with the Company and considering in good faith the Company’s views, control all aspects of the parties’ efforts to gain regulatory clearance either before any Governmental Entity or in any action brought to enjoin the transactions contemplated hereby pursuant to any Competition Law.
Appears in 1 contract
Sources: Merger Agreement (New Home Co Inc.)
Efforts. (a) Subject to From and after the terms date hereof, Purchaser and conditions set forth in this AgreementSeller shall, each of the parties hereto and shall cause their respective Affiliates to, use all their respective reasonable best efforts to take promptlytake, or cause to be taken, all actions, and to do promptlydo, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under any applicable Laws Law to consummate and make effective as promptly as reasonably practicable the Mergers Transaction and the other transactions contemplated by this Agreement, including (i) obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals, the preparation and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making filing of all necessary registrations forms, registrations, Filings and filings and notices required to be filed to satisfy the taking of all steps as may be necessary conditions precedent to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) obtaining all necessary consents, approvals or waivers from third parties, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or (including those set forth in Section 8.1) and to consummate the consummation of the Mergers Transaction and the other transactions contemplated by this Agreement as soon as practicable and (ivii) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers Transaction and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement. Without limiting the foregoing, Purchaser and Seller shall, and use reasonable best efforts to shall cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates Affiliates to, take all actions necessary to use) reasonable best efforts to obtain (and shall cooperate with each other in obtaining) any Regulatory Approvals (xwhich actions shall include furnishing all information required in connection with such Regulatory Approvals) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained fromor made by Purchaser, Seller, the other Seller Entities or the Purchased Entities (or Subsidiaries thereof) or any third parties or other Governmental Entities of their Affiliates in connection with the execution Transaction or the other transactions contemplated by this Agreement. Additionally, Purchaser and delivery Seller shall not, and shall cause their respective Affiliates not to, take any action after the date of this Agreement and that would reasonably be expected to impair or materially delay the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution ofresult in not obtaining, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have Regulatory Approval necessary to be obtained prior to the effect of preventing Closing.
(b) Prior to the Closing, materially delaying Purchaser and Seller shall each keep the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the Transaction and the other transactions contemplated therebyby this Agreement and work cooperatively in connection with obtaining all required Regulatory Approvals. In that regard, including prior to the Closing, subject to the Confidentiality Agreement and Section 5.3, each Party shall promptly furnishing consult with the other Party to provide any necessary information with respect to (and, in the case of correspondence, provide the other Party (or its counsel) copies of) all Filings made by such Party or any of its Affiliates with any Governmental Entity or any other information supplied by such Party or any of its Affiliates to, or correspondence with, a Governmental Entity in connection with this Agreement, the Transaction and the other transactions contemplated by this Agreement. Subject to the Confidentiality Agreement and Section 5.3, each Party shall promptly inform the other Party, and if in writing, furnish the other Party with copies of notices or (or, in the case of oral communications, advise the other communications Party orally of) any communication received by Galaxy or Mars, as the case may be, such Party or any of their respective Subsidiaries, its Affiliates or Representatives from any third party and/or any Governmental Entity with respect to such transactions. Galaxy regarding the Transaction and Mars shall permit counsel for the other party reasonable opportunity transactions contemplated by this Agreement, and permit the other Party to review and discuss in advance, and consider in good faith the views of the other party Party in connection with, any proposed written communication to with any such Governmental Entity. Each If either Party or any Affiliate or Representative of Galaxy such Party receives a request for additional information or documentary material from any Governmental Entity with respect to the Transaction or the other transactions contemplated by this Agreement, then such Party will make, or cause to be made, promptly and Mars agrees not to after consultation with the other Party, an appropriate response in compliance with such request. None of Purchaser, its Affiliates or its Representatives shall participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with this Agreement and the proposed Transaction or the other transactions contemplated by this Agreement (or make oral submissions at meetings or in telephone or other conversations) unless it consults with the other party Seller in advance and, to the extent not prohibited by such Governmental Entity, gives the other party Seller the opportunity to attend and participateparticipate thereat. Subject to the Confidentiality Agreement and Section 5.3, each Party shall furnish the other Party with copies of all correspondence and Filings (and memoranda setting forth the substance thereof) between it or any of its Affiliates or Representatives, on the one hand, and any Governmental Entity, on the other hand, with respect to this Agreement and the Transaction or the other transactions contemplated by this Agreement, and furnish the other Party with such necessary information and reasonable assistance as the other Party may reasonably request in connection with its preparation of Filings to any such Governmental Entity. Purchaser and Seller may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Agreement as “outside counsel only.” Such materials and the information contained therein shall be given only to the outside legal counsel and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Purchaser or Seller, as the case may be) or its legal counsel; provided, however, that materials provided pursuant to this Agreement may be redacted (i) to remove references concerning the valuation of or future plans for the Business or the Sale Process, (ii) as necessary to comply with contractual obligations or applicable Law and (iii) as necessary to address reasonable privilege concerns.
(dc) In furtherance ▇▇▇▇▇▇▇▇▇ agrees to provide such security and not in limitation of the covenants of the parties contained in this Section 5.6assurances as to financial capability, if resources and creditworthiness as may be reasonably requested by any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction Governmental Entity or other order, whether temporary, preliminary or permanent, that third party whose Approval is sought in effect and that prohibits, prevents or restricts consummation of connection with the Mergers Transaction and the other transactions contemplated by this Agreement. Whether or not the Transaction is consummated, Purchaser shall be responsible for all fees and payments (including filing fees and legal and professional fees) to any third party or any Governmental Entity in order to obtain any Approvals pursuant to this Agreement, other than the fees of and payments to Seller’s legal and professional advisors.
(d) Notwithstanding anything in this Agreement to the contrary, none of Seller, the other Seller Entities or any of their respective Affiliates shall under any circumstance be required to pay or commit to pay any amount or incur any obligation in favor of or offer or grant any accommodation (financial or otherwise, regardless of any provision to the contrary in the underlying Contract, including any requirements for the securing or posting of any bonds, letters of credit or similar instruments, or the furnishing of any guarantees) to any Person to obtain any Approval. None of Seller, the other Seller Entities or any of their respective Affiliates shall have any Liability whatsoever to Purchaser or any of its Affiliates arising out of or relating to the failure to obtain any Approvals that may be required in connection with the Transaction and the other transactions contemplated by this Agreement or because of the termination of any Contract or any default under, or acceleration or termination of or loss of any benefit under, any Contract or other Purchased Asset as a result thereof. Purchaser acknowledges that no representation, warranty or covenant of Seller contained herein shall be breached or deemed breached, and no condition to Purchaser’s obligations to consummate the transactions contemplated by this Agreement (other than as a result of the failure to satisfy a condition expressly set forth in Section 8.1(a)) shall be deemed not satisfied, as a result of (i) the failure to obtain any Approval, (ii) any such termination, default, acceleration or loss of benefit, or (iii) any Proceeding commenced or threatened by or on behalf of any Person arising out of or relating to the failure to obtain any such Approval or any of the foregoing. For the avoidance of doubt, Seller’s and its Affiliates’ obligations under this Section 5.1 shall be subject in all respects to the applicable provisions of Section 2.10.
Appears in 1 contract
Efforts. (a) Subject to From and after the terms date hereof, Purchaser and conditions set forth in this AgreementSeller shall, each of the parties hereto and shall cause their respective Affiliates to, use all their respective reasonable best efforts to take promptlytake, or cause to be taken, all actions, and to do promptlydo, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under any applicable Laws Law to consummate and make effective in the Mergers and most expeditious manner possible the other transactions contemplated by this AgreementTransactions, including (i) the preparation and filing of all forms, registrations, Filings and notices required to be filed to satisfy the conditions precedent to this Agreement (including those set forth in Section 7.1) and to consummate the Transactions as soon as practicable, (ii) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) obtaining all necessary consents, approvals or waivers from third partiesfilings, (iii) the defending of any Action, lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement Transactions, and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by Transactions and to fully carry out the purposes of this Agreement; provided. Without limiting the foregoing, howeverPurchaser and Seller shall, that and shall cause their respective Affiliates to, take all actions necessary to obtain (and shall cooperate with each other in no event obtaining) any Regulatory Approvals (which actions shall Galaxy include furnishing all information required in connection with such Regulatory Approvals) required to be obtained or made by Purchaser, Seller, the other Seller Entities or the Purchased Companies (or Subsidiaries thereof) or any of its Subsidiariestheir Affiliates in connection with the Transactions. Additionally, Purchaser and Seller shall not, and shall cause their respective Affiliates not to, take any action after the date of this Agreement that would reasonably be expected to impair or materially delay the obtaining of, or Mars or result in not obtaining, any of its Subsidiaries or Holdco Regulatory Approval necessary to be required to pay obtained prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreementClosing.
(b) Subject Prior to the terms Closing, Purchaser and conditions herein provided Seller shall each keep the other apprised of the status of matters relating to the completion of the Transactions and without limiting the foregoing, the parties hereto shall (i) promptly, but work cooperatively in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and connection with obtaining all required Notification Regulatory Approvals. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Report Forms under Section 5.3, each Party shall promptly consult with the HSR Act other Party to provide any necessary information with respect to the Mergers and the other transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Marscorrespondence, Holdco provide the other Party (or the Merger Subsits counsel) copies of) all Filings made by such Party or any of its Affiliates with any Governmental Entity or any other information supplied by such Party or any of its Affiliates to, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made or correspondence with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other a Governmental Entities Entity in connection with the execution and delivery of this Agreement and the consummation Transactions. Subject to the Confidentiality Agreement and Section 5.3, each Party shall promptly inform the other Party, and if in writing, furnish the other Party with copies of (or, in the case of oral communications, advise the other Party orally of) any communication received by such Party or any of its Affiliates or Representatives from any Governmental Entity regarding the Transactions, and permit the other Party to review and discuss in advance, and consider in good faith the views of the transactions contemplated hereby other Party in connection with, any proposed written or oral communication with any such Governmental Entity. If either Party or any Affiliate or Representative of such Party receives a request for additional information or documentary material from any Governmental Entity with respect to the Transactions, then such Party will make, or cause to be made, promptly and after consultation with the other Party, an appropriate response in compliance with such request. None of Purchaser, its Affiliates or its Representatives shall participate in any meeting with any Governmental Entity in connection with this Agreement and the Transactions (yor make oral submissions at meetings or in telephone or other conversations) timely making unless it consults with Seller in advance and, to the extent not prohibited by such Governmental Entity, gives Seller the opportunity to attend and participate thereat. Subject to the Confidentiality Agreement and Section 5.3, each Party shall furnish the other Party with copies of all correspondence and Filings (and memoranda setting forth the substance thereof) between it or any of its Affiliates or Representatives, on the one hand, and any Governmental Entity, on the other hand, with respect to this Agreement and the Transactions, and furnish the other Party with such filings necessary information and timely obtaining all reasonable assistance as the other Party may reasonably request in connection with its preparation of Filings to any such consentsGovernmental Entity. Purchaser and Seller may, permitsas each deems advisable and necessary, authorizations reasonably designate any competitively sensitive material provided to the other under this Agreement as “outside counsel only.” Such materials and the information contained therein shall be given only to the outside legal counsel and will not be disclosed by such outside counsel to employees, officers, or approvalsdirectors of the recipient unless express permission is obtained in advance from the source of the materials (Purchaser or Seller, as the case may be) or its legal counsel; provided, however, that materials provided pursuant to this Agreement may be redacted (i) to remove references concerning the valuation of or future plans for the Business or the Sale Process, (ii) as necessary to comply with contractual obligations or applicable Law, and (iii) supply as necessary to address reasonable privilege concerns.
(c) Without limiting the foregoing, Purchaser and Seller shall, and shall cause their respective Affiliates to, file, as promptly as practicable, but in any Governmental Entity event no later than ten (10) Business Days after the date of this Agreement, notifications under the HSR Act, and Purchaser and Seller shall, and shall cause their respective Affiliates to, file as promptly as practicable any additional information or documents that may other Filings under applicable Antitrust Laws, but in any event, any initial draft notifications of any other Filings shall be requested pursuant submitted no later than twenty (20) days after the date of this Agreement.
(d) In furtherance of the foregoing, and notwithstanding anything in this Agreement to any Law or by such Governmental Entity; the contrary, Purchaser shall, and (iv) takeshall cause its Affiliates to, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) take all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any applicable Law that may be asserted by any Governmental Entity with respect to the Mergers Transactions and to resolve such objections, if any, as any Governmental Entity or any other Person may assert under any applicable Law with respect to the Transactions, so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than so as to enable the End Closing to occur prior to the Outside Date), includingincluding proffering to and agreeing to sell, without limitationdivest, lease, license, transfer, dispose of or otherwise encumber or hold separate, before or after the Closing, any assets, contracts, licenses, operations, rights, product lines, businesses or interests therein of the Business (and consent to any such action) and agree to any change or restriction on, or other impairment of Purchaser’s ability to own, retain or operate, any such assets, contracts, licenses, operations, rights, product lines, businesses or interests therein (each such action an “Antitrust Action”); provided, however, notwithstanding anything to contrary this Agreement, that Purchaser shall not be required to (i) take any Antitrust Action that, individually or in the aggregate, would have a material effect on the Business as a whole, (xii) proposingdivest, negotiatinglimit, committing to and effectingsell, by consent decreelease, license, transfer, dispose or otherwise encumber or hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its SubsidiariesAffiliates’ (including the Surviving Corporations’) businesses, product lines or assets, contracts, licenses, operations, rights product lines, businesses or interests outside the United States, whether now or in each case as may be required in order to avoid commencement the future (and, for the avoidance of litigation seeking doubt, excluding the entry ofBusiness), or to effect the dissolution of(iii) take any action or avoid taking any action that would limit, any injunction, temporary restraining order restrict or other order impair in any suit material respect the ability of Purchaser or proceeding which would otherwise have Purchaser’s Affiliates to own, control or operate any part of its business outside the effect United States as of preventing the Closingdate hereof (and, materially delaying for the avoidance of doubt, excluding the Business). Notwithstanding anything in this Agreement to the contrary, Seller and its Affiliates shall not be obligated to take or agree or commit to take any action (A) that is not conditioned on the Closing or delaying the Closing beyond the End Date(B) that relates to any Excluded Assets or Retained Businesses; provided that neither Galaxy nor any of its Subsidiaries and in no event shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy Seller or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall Affiliates be required to take be the licensing, selling, divesting, leasing, transferring, disposing or encumbering party under any such agreements unless required by the relevant Governmental Entity or applicable Law, and, in any case, Seller and its Affiliates shall have no direct or indirect obligation or Liability in respect of the actions described in clauses (iv)(x) any such agreements, transactions or (y) above with respect to relationships, including any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdcoindemnification obligations, Mars, Galaxy for which Seller and their respective Subsidiaries, taken as a whole, at or after the Effective Timeits Affiliates are not fully indemnified by Purchaser.
(ce) Subject Purchaser agrees to applicable legal limitations provide such security and the instructions of assurances as to its financial capability, resources and creditworthiness as may be reasonably requested by any Governmental EntityEntity or other third party whose Approval is sought in connection with the Transactions. Whether or not the Transactions are consummated, Galaxy Purchaser shall be responsible for all fees and Mars shall keep each payments (including filing fees and legal and professional fees) to any third party or any Governmental Entity in order to obtain any Approvals pursuant to this Agreement, other apprised than the fees of the status of matters relating and payments to Seller’s legal and professional advisors.
(f) Notwithstanding anything in this Agreement to the completion contrary, none of the transactions contemplated therebySeller, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, Seller Entities or any of their respective SubsidiariesAffiliates shall under any circumstance be required to pay or commit to pay any amount or incur any obligation in favor of or offer or grant any accommodation (financial or otherwise, from regardless of any third party and/or provision to the contrary in the underlying Contract, including any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel requirements for the other party reasonable opportunity securing or posting of any bonds, letters of credit or similar instruments, or the furnishing of any guarantees) to review in advanceany Person to obtain any Approval. None of Seller, and consider in good faith the views of the other party in connection with, Seller Entities or any proposed written communication of their respective Affiliates shall have any Liability whatsoever to Purchaser or any Governmental Entity. Each of Galaxy and Mars agrees not its Affiliates arising out of or relating to participate in the failure to obtain any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity Approvals that may be required in connection with the proposed transactions unless it consults with Transactions or because of the termination of any Contract or any default under, or acceleration or termination of or loss of any benefit under, any Contract or other party Purchased Asset as a result thereof. Purchaser acknowledges that no representation, warranty or covenant of Seller contained herein shall be breached or deemed breached, and no condition to Purchaser’s obligations to consummate the Transactions (other than as a result of the failure to satisfy a condition expressly set forth in advance andSection 7.1(a) or Section 7.1(b)) shall be deemed not satisfied, as a result of (i) the failure to obtain any Approval, (ii) any such termination, default, acceleration or loss of benefit, or (iii) any Proceeding commenced or threatened by or on behalf of any Person arising out of or relating to the extent not prohibited by failure to obtain any such Governmental Entity, gives the other party the opportunity to attend and participate.
(d) In furtherance and not in limitation Approval or any of the covenants foregoing. For the avoidance of the parties contained in doubt, Seller’s and its Affiliates’ obligations under this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to 5.1 shall be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate subject in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 the applicable provisions of the Mergers and the other transactions contemplated by this AgreementSection 2.11.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall use all its reasonable best efforts to take promptly, or cause to be taken, all actions, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Mergers Merger and the other transactions contemplated by this Agreement, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers Merger and the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or the Company, any of its Subsidiaries, or, subject to Section 6.12 and related provisions, Parent or Mars or any of its Subsidiaries or Holdco Merger Sub be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract Contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto Company, Parent and Merger Sub shall (i) promptly, but in no event later than fifteen ten (1510) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto)hereof, file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers Merger and the other transactions contemplated by this Agreement, and use their reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; , (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely promptly making all such filings and timely obtaining all such consents, permits, authorizations or approvals; , (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; Entity and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person Person may assert under any Law (other than with respect to any Action by any shareholder related to this Agreement, the Merger or the other transactions contemplated by this Agreement) with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers Merger so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, including (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco Parent or their respective its Subsidiaries or affiliates, Affiliates or of Galaxy the Company or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco Parent or its Subsidiaries’ (including the Surviving Corporations’Corporation’s) or affiliatesAffiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’Corporation’s) or Affiliates’ businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End DateClosing; provided that neither Galaxy the Company nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy the Company or any of its SubsidiariesAffiliates, unless such requirement, condition, understanding, agreement or order is binding on Galaxy the Company only in the event that the Closing occurs; provided that none . Except as otherwise permitted under this Agreement (including, for the avoidance of Marsdoubt, Holdco Section 6.1(a) of the Company Disclosure Letter), the Company, Parent and Merger Sub shall not (and shall cause their Subsidiaries and Affiliates not to) take or the Merger Subs shall be required agree to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action that would be material in relation reasonably likely to prevent or materially delay the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective TimeClosing.
(c) Subject The Company, Parent and Merger Sub shall cooperate and consult with each other in connection with the making of all registrations, filings, notifications, communications, submissions, and any other material actions pursuant to this Section 6.7, and, subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy the Company, on the one hand, and Mars Parent and Merger Sub, on the other hand, shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated therebyhereby, including promptly furnishing the other with copies of notices or other material communications received by Galaxy the Company or MarsParent, as the case may be, or any of their respective SubsidiariesSubsidiaries or Affiliates, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy Subject to applicable Law relating to the exchange of information, the Company, on the one hand, and Mars Parent and Merger Sub, on the other hand, shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed notifications or filings and any written communications or submissions, and with respect to any such notification, filing, written communication or submission, any documents submitted therewith to any Governmental Entity; provided, however, that materials may be redacted (x) to remove references concerning the valuation of the businesses of the Company and its Subsidiaries, or proposals from third parties with respect thereto, (y) as necessary or appropriate to address reasonable privilege concerns or reasonable confidentiality concerns relating to proprietary or commercially sensitive information regarding Parent and its operations, provided that Parent shall contemporaneously provide summaries to Company’s counsel of the information redacted pursuant to this subclause (y). Each of Galaxy the Company, Parent and Mars Merger Sub agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions contemplated hereby unless it consults with the other party in advance and, to the extent not prohibited or required otherwise by such Governmental Entity, gives the other party the opportunity to attend and participate.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.66.7, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy the Company, Parent and Mars Merger Sub shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 prevents, delays or restricts consummation of the Mergers Merger and the other transactions contemplated by this Agreement. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 6.7 shall limit a party’s right to terminate this Agreement pursuant to Section 8.1(b)(i) or Section 8.1(b)(ii) so long as such party has, prior to such termination, complied with its obligations under this Section 6.7.
Appears in 1 contract
Sources: Merger Agreement (Saks Inc)
Efforts. (a) Subject to Upon the terms and subject to the conditions set forth in this Agreement, each of Buyer, Holdings and the parties hereto Seller shall use all their respective commercially reasonable best efforts to take promptlytake, or cause to be taken, all actions, and to do promptlydo, or cause to be done, and to assist and cooperate with the other parties Parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective effective, in the Mergers and most expeditious manner practicable, the other transactions contemplated by this AgreementContemplated Transactions, including (ia) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities Consents and the making of all necessary registrations filings, registrations, or declarations, specified in Section 4.5 and filings Section 5.4 and the taking of all necessary steps as may be necessary to obtain an approval, clearance or waiver from, or such Governmental Consents and to avoid an action or proceeding by, any Governmental Entitymake such registrations, (iib) the obtaining of all necessary consents, approvals or waivers from from, and the provision of notices to third parties, (iiic) the defending of any lawsuits or other legal proceedingsLitigations, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the Contemplated Transactions, including, seeking to have any stay, temporary restraining order or other transactions contemplated injunctive relief or Order entered by this Agreement any court or other Governmental Authority vacated or reversed, and (ivd) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by Contemplated Transactions and to fully carry out the purposes of this Agreement; provided, howeverthat such efforts shall not require agreeing to any obligations or accommodations (financial or otherwise) binding on Buyer, the Seller or Holdings in the event the Closing does not occur. Without limiting the foregoing, none of the Parties shall take or agree to take any action that could reasonably be expected to result in no event any of the conditions set forth in Article VII not being satisfied or to impair, prevent or delay the consummation of the Contemplated Transactions. Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement shall Galaxy require the Buyer or any of its SubsidiariesAffiliates to (or to offer to): (i) consent to any Order or other agreement providing for the sale, licensing or other disposition, or Mars the holding separate of, or other limitations or restrictions on, particular assets, categories of assets or lines of business of the Companies or the Buyer or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any feeAffiliates, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (andeffect any disposition, in the case licensing or holding separate of Marsassets or lines of business, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to terminate any Governmental Entity as promptly as practicable any additional information existing relationships and contractual rights and obligations or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective take any action that limits the transactions contemplated hereby, including taking Buyer’s (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving CorporationsAffiliates’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy the Buyer or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco Affiliates or the Merger Subs shall be required Companies, or their ability to take any of the actions described in clauses (iv)(x) or (y) above with respect to retain any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business lines of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Timebusiness.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it 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.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers and the other transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Securities Purchase Agreement (Wireless Telecom Group Inc)
Efforts. (a) Subject The Buyer acknowledges that certain consents to the terms and conditions set forth in this Agreement, each of the parties hereto shall use all reasonable best efforts to take promptly, or cause to be taken, all actions, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Mergers and the other transactions contemplated by this Agreement, including (i) obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) obtaining all necessary consents, approvals or waivers from third parties, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement may be required from parties to the Contracts and such consents have not been obtained. The Buyer agrees the Seller shall not have any liability whatsoever to the Buyer arising out of or relating to the failure to obtain any consents that may have been or may be required in connection with the transactions contemplated by this Agreement or because of the default, acceleration or termination of any Contract as a result thereof. The Buyer further agrees that no representation, warranty or covenant of the Seller contained herein shall be breached or deemed breached and no condition of the Buyer shall be deemed not to be satisfied as a result of (ivi) the execution and delivery failure to obtain any consent or as a result of any additional instruments necessary such default, acceleration or termination or (ii) any litigation commenced or threatened by or on behalf of any Persons arising out of or relating to consummate the failure to obtain any consent or any such default, acceleration or termination.
(b) With respect to any Contracts that may not be properly assigned to the Buyer because of the failure to obtain a required consent ("NONTRANSFERABLE CONTRACTS"), the Buyer shall indemnify, defend and hold harmless the Seller Indemnified Parties from and against any Losses that the Seller may have in connection with such Nontransferable Contracts as a result of the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject With respect to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity Nontransferable Contract with respect to such transactions. Galaxy which the Seller and Mars shall permit counsel for the Buyer are unable to obtain a separate agreement between the Buyer and the other party or parties, the Buyer shall have the right to require that the Seller use reasonable opportunity efforts to review in advance, and consider in good faith the views of the other party in connection with, perform any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it consults with the other party in advance andsuch Nontransferable Contract, to the extent not prohibited by such Governmental Entityit relates to the Business, gives as agent for and for the other party the opportunity to attend and participate.
(d) In furtherance and not in limitation account of the covenants of Buyer, for a period up to one month following the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such action or proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanentClosing Date; PROVIDED, that is the Buyer shall reimburse, indemnify and hold the Seller harmless for any and all costs, expenses, losses and liabilities incurred by the Seller in effect and that prohibits, prevents or restricts consummation of the Mergers and the other transactions contemplated by this Agreementconnection with taking such action.
Appears in 1 contract
Efforts. (a) Subject to From and after the terms and conditions set forth in this Agreement, each date hereof until earlier of the parties hereto Closing and the termination of this Agreement pursuant to Article VIII, Purchaser and Seller shall (and shall cause their respective Affiliates to) use all reasonable best efforts to take promptlytake, or cause to be taken, all actions, and to do promptlydo, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under any applicable Laws Law to consummate and make effective in the Mergers and most expeditious manner possible the other transactions contemplated by this AgreementTransaction, including (i) obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) obtaining all necessary consents, approvals or waivers from third parties, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement and (ivsolely with respect to the Purchaser) the Related Transaction, including (i) the preparation and filing of all forms, registrations and notices required to be filed to consummate the Transaction, the other transactions contemplated by this Agreement and (solely with respect to the Purchaser) the Related Transaction, which shall occur, in the case of filing of the Notification and Report Form pursuant to the HSR Act, no later than ten (10) Business Days after the date of this Agreement unless otherwise agreed by the parties hereto (provided that, if there are any changes in the applicable regulations under the HSR Act that would apply to the Transaction, the other transactions contemplated by this Agreement or the Related Transaction prior to the date of filing pursuant to the HSR Act, Purchaser and Seller shall use reasonable best efforts to file or cause to be filed any and all required notification and report forms under the HSR Act as promptly as commercially practicable thereafter), and in the case of all other filings as soon as practicable, and (ii) the execution and delivery of any additional instruments necessary to consummate the Transaction, the other transactions contemplated by this Agreement and (solely with respect to the Purchaser) the Related Transaction and to fully carry out the purposes of this Agreement and the Related Transaction, as applicable. Without limiting the foregoing, (x) Purchaser shall file to record the IP Assignment Agreement (and prepare and file to record any other documentation relating to the transfer of Transferred IP thereunder) with the applicable Governmental Entities at Purchaser’s sole cost and expense; provided that, upon Purchaser’s request, Seller shall provide reasonable assistance to Purchaser in connection therewith and (y) Purchaser and Seller shall (and Purchaser shall cause its “ultimate parent entity,” as such term is generally determined in accordance with applicable Antitrust Laws, to) use reasonable best efforts to take all actions reasonably necessary to obtain (and shall cooperate with each other in obtaining) any Regulatory Approvals (which actions shall include furnishing all information reasonably required in connection with such Approvals) required to be obtained or made by Purchaser, Seller, the other Seller Entities or the Purchased Companies in connection with the Transaction, the other transactions contemplated by this Agreement or (solely with respect to the Purchaser) the Related Transaction. From and after the date hereof until the earlier of the Closing and the termination of this Agreement pursuant to Article VIII, each of Purchaser and Seller shall use their respective reasonable best efforts to fulfill all conditions precedent to this Agreement (including those set forth in Section 7.1) and Purchaser shall use its reasonable best efforts to fulfill all conditions precedent to the Hitachi SPA. The parties shall use reasonable best efforts to effect the transfer of any Permits required as a result of the execution of this Agreement or the Hitachi SPA or the consummation of the Transaction or the other transactions contemplated by this Agreement or (solely with respect to the Purchaser) the Related Transaction. Seller shall not enter into any agreement with any Governmental Entity not to consummate the transactions contemplated by this Agreement, except with the prior written consent of Purchaser or at or after the time in which this Agreement has been terminated pursuant to Article VIII. Notwithstanding the foregoing or anything in this Agreement to the contrary, Purchaser shall have the right to direct and control all matters with any Governmental Entity or with any other Person in connection with any Action or Proceeding by a private party relating to any Antitrust Laws in connection with this Agreement or the transactions contemplated by this Agreement, including by directing and controlling the strategy and making final determinations related to the review or investigation by any Governmental Entity of, and attending as reasonably possible all meetings and discussions with any Governmental Entity with respect to, the transactions contemplated by this Agreement; provided, howeverthat to the extent practicable, that Purchaser will consult with Seller and consider in no event shall Galaxy or good faith the views of Seller in connection with such matters, including any of its Subsidiariesfiling made with, or Mars or written materials submitted to, any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of Governmental Entity in connection with the transactions contemplated by hereby. Seller shall bear any filing fees payable in order to obtain any Regulatory Approvals pursuant to this Agreement under Section 5.1 in an amount not to exceed three million dollars ($3,000,000), and Purchaser shall bear any contract or agreementsuch fees in excess thereof.
(b) Subject Prior to the terms Closing, Purchaser and conditions herein provided and without limiting the foregoing, the parties hereto Seller shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and each use reasonable best efforts to cause keep the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the Transaction, the other transactions contemplated therebyby this Agreement and the Related Transaction and work cooperatively in connection with obtaining all required Regulatory Approvals. In that regard, including prior to the Closing, subject to the Confidentiality Agreement, Section 5.3 and the Access Limitations, each party shall promptly furnishing consult with the other party to this Agreement to provide any reasonably necessary information with respect to (and, in the case of written correspondence, provide the other party (or their outside counsel) copies of) all filings made by such party with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement, the Transaction, the other transactions contemplated by this Agreement (other than immaterial or ministerial filings) or the Related Transaction. Subject to the Confidentiality Agreement, Section 5.3 and the Access Limitations, each party shall promptly inform the other party and, if in writing, furnish the other party with copies of notices or other communications received by Galaxy or Mars(or, as in the case may beof material oral communications, or advise the other party orally of) any of their respective Subsidiaries, communication from any third party and/or any Governmental Entity with respect to such transactions. Galaxy (other than immaterial communications) regarding the Transaction, the other transactions contemplated by this Agreement or the Related Transaction, and Mars shall permit counsel for the other party reasonable opportunity to review and discuss in advance, and consider in good faith the views of the other party in connection with, any proposed written (or any material proposed oral) communication to with any such Governmental Entity. Each If either party or any Representative of Galaxy such party receives a request for additional information or documentary material from any Governmental Entity (other than immaterial communications) with respect to the Transaction, the other transactions contemplated by this Agreement or the Related Transaction, then such party will use its reasonable best efforts to make, or cause to be made, promptly and Mars agrees not after consultation with the other party, an appropriate response in compliance with such request. Neither party will participate in, or permit its Representatives to participate in in, any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity (other than immaterial communications) in connection with this Agreement, the proposed Transaction, the other transactions contemplated by this Agreement (or make substantive oral submissions at meetings or in telephone or other conversations) or the Related Transaction unless it consults with the other party in advance and, to the extent not prohibited by such Governmental Entity, gives the such other party the a reasonable opportunity to attend and participate.
participate thereat. Subject to the Confidentiality Agreement, Section 5.3 and the Access Limitations, each party shall furnish the other party with copies of all filings, written submissions, correspondence, and material written communications between it and any such Governmental Entity (dother than immaterial communications) In furtherance and not in limitation of with respect to this Agreement, the covenants of Transaction, the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction other transactions contemplated by this Agreement or the Related Transaction, and furnish the other party with such necessary information and reasonable assistance as violative the other party may reasonably request in connection with its preparation of filings or submissions of information to any Lawsuch Governmental Entity. Purchaser and Seller may, as each deems reasonably advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 5.1 as “outside counsel only,” and such materials and the information contained therein shall be given only to the outside legal counsel and will not be disclosed by such outside counsel to employees, officers, or directors of Galaxy and Mars shall cooperate the recipient unless express permission is obtained in all respects advance from the source of the materials (Purchaser or Seller, as the case may be) or its legal counsel. Any materials provided pursuant to this Section 5.1(b) may be redacted consistent with each other and shall the Access Limitations.
(c) Subject to the last sentence of this Section 5.1(c), Purchaser agrees to use their respective reasonable best efforts to contest take any and resist all steps and actions that are lawful, necessary and proper to avoid, resolve or eliminate each and every impediment that may be asserted by any Governmental Entity under any Antitrust Law with respect to the transactions contemplated by this Agreement or the Related Transaction so as to enable the Closing and the consummation of the Related Transaction to occur expeditiously, but in no case later than the Outside Date, including, as applicable, proposing, negotiating, committing to or effecting, by consent decree, hold separate order or otherwise, (i) the sale, divesture or disposition of, or holding separate (through the establishment of a trust or otherwise), of the assets, properties and businesses of (x) the Business (including the Purchased Assets and the assets of any of the Purchased Controlled Companies) or (y) Purchaser and its Subsidiaries, (ii) the termination, modification or extension of existing relationships and contractual rights and obligations of the Business (including of the Purchased Controlled Companies), (iii) the establishment or creation of relationships and contractual rights and obligations of the Business (including of the Purchased Controlled Companies), (iv) the termination of any relevant venture or other arrangement of the Business (including of the Purchased Controlled Companies) and (v) any other change or restructuring of the Business (including of the Purchased Controlled Companies) (any such action action, a “Regulatory Remedy”), in each case, as may be required to be taken in order to obtain any Regulatory Approval or proceeding and avoid the entry of, or to have vacatedeffect the dissolution of, lifted, reversed or overturned any decree, judgmentorder, injunction Judgment, injunction, temporary restraining order or other orderorder in any litigation by any Governmental Entity, whether temporary, preliminary which would otherwise have the effect of materially delaying or permanent, that is in effect and that prohibits, prevents or restricts preventing the consummation of the Mergers transactions contemplated by this Agreement or the Related Transaction; provided that Purchaser shall not be required to agree to any Regulatory Remedy that, individually or in the aggregate, (x) would reasonably be expected to significantly impair (1) the benefits of the Transaction and the other transactions contemplated by this Agreement to the Purchaser or (2) the value of the Business, taken as a whole, or (y) solely with respect to any Regulatory Remedy that relates to Purchaser’s or its Subsidiaries’ assets, properties or businesses (excluding the Business, the Purchased Assets and assets of any Purchased Controlled Company), (A) would result in the sale, divestiture, disposition of or holding separate (through the establishment of a trust or otherwise) of assets, properties or businesses that generated, in the aggregate, more than $50,000,000 in revenues during the fiscal year immediately preceding the date of this Agreement, or (B) consists of any of the Regulatory Remedies described in clauses (ii) through (v) of this Section 5.1(c). Upon the reasonable request of Purchaser, Seller shall, and shall cause its Affiliates to, use reasonable best efforts to cooperate with the Purchaser and its Affiliates and its and their Representatives in order to facilitate and help effectuate any of the actions described in this Section 5.1(c) prior to the Outside Date, by (A) entering into customary, mutually acceptable non-disclosure and clean team agreements with potential buyers of assets of the Purchased Controlled Companies or Purchased Assets, (B) reasonably assisting Purchaser with the preparation of a confidential information memorandum and/or “teaser” to assist in marketing any such assets and (C) providing reasonable access to customary due diligence materials, including providing potential buyers and their Representatives with reasonable access to senior management of the Seller and its Affiliates, participating in due diligence calls and taking any other actions as may be reasonably requested by Purchaser in connection with the marketing and sale of any such assets; provided that Seller shall not, and shall cause its Affiliates not to, take any such action (or agree to take any action) without the prior written consent of Purchaser. Nothing in this Section 5.1 shall require Seller or Purchaser to effectuate, or agree to effectuate, any Regulatory Remedy unless such Regulatory Remedy is conditioned upon the Closing and only effective following the Closing. In addition, Purchaser shall oppose, through and including litigation on the merits (which, for the avoidance of doubt, shall not include any appeal of any decree, order or Judgment following the imposition of a preliminary injunction (or its equivalent) by any Governmental Entity), any claim asserted in court or other forum by any Governmental Entity in order to avoid entry of, or to have vacated or terminated, any decree, order or Judgment (whether temporary, preliminary or permanent) in favor of any objection by any Governmental Entity with authority under any Antitrust Law that would restrain or prevent the Closing or the consummation of the Related Transaction by the Outside Date.
(d) Any provision in this Agreement notwithstanding, none of Seller, the other Seller Entities or any of their respective Affiliates (including, prior to the Closing, the Purchased Companies) shall under any circumstance be required to pay or commit to pay any amount or incur any obligation in favor of or offer or grant any accommodation (financial or otherwise, regardless of any provision to the contrary in the underlying Contract, including any requirements for the securing or posting of any bonds, letters of credit or similar instruments, or the furnishing of any guarantees) to any Person to obtain any Approval. Except as otherwise provided in this Agreement, including Section 8.2(b) and Section 10.6, none of Purchaser or any of its Affiliates, on the one hand, or Seller, the other Seller Entities or any of their respective Affiliates (including, prior to the Closing, the Purchased Companies), on the other hand, shall have any Liability whatsoever to the other party based on the failure, in and of itself, to obtain any Approvals that may be required in connection with the Transaction, the other transactions contemplated by this Agreement or the Related Transaction or because of the termination of any Contract or Permit as a result thereof. Purchaser acknowledges that no representation, warranty or covenant of Seller contained in the Transaction Documents shall be breached or deemed breached, and no condition shall be deemed not satisfied, based solely on (i) the failure to obtain any Approval, (ii) any such termination of a Contract or Permit or (iii) any Action commenced or threatened by or on behalf of any Person arising out of or relating to the failure to obtain any such Approval or
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Johnson Controls International PLC)
Efforts. (a) Subject to the terms and conditions set forth in of this Agreement, including this Section 6.3, each of the parties hereto Company, Seller and Buyer shall use all its commercially reasonable best efforts to take promptlytake, or cause to be taken, all actions, actions and to do promptlydo, or cause to be done, and to assist and cooperate with the other parties party in doing, doing all things necessary, proper or advisable under applicable Laws Law to consummate and make effective the Mergers and the other transactions contemplated by this Agreement, including (i) obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) obtaining all necessary consents, approvals or waivers from third parties, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement and (iv) as promptly as reasonably practicable after the execution and delivery date of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that including using commercially reasonable best efforts in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto shall (i) promptlypreparing and filing, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act consultation with respect to the Mergers and the other transactions contemplated by this AgreementParties, as promptly as reasonably practicable with any Applicable Authority or other third party all documentation to effect all necessary, proper or advisable filings, notices, petitions, statements, registrations, submissions of information, applications and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; other documents and (ii) use (andobtaining and maintaining all non-actions, in the case of Marsclearances, Holdco or the Merger Subswaivers, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made withapprovals, or consents, registrations, permits, authorizations, waivers, clearances, approvals, authorizations and expirations or terminations of waiting periods are other confirmations required to be obtained from, from any third parties Applicable Authority or other Governmental Entities third party, in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consentseach case, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things are necessary, proper or advisable to consummate and make effective the transactions contemplated herebyby this Agreement (whether or not such approvals, including taking (andconsents, in registrations, permits, authorizations and other confirmations are conditions to the case consummation of Mars, Holdco or the Merger Subs, cause each of their respective affiliates Closing pursuant to take) all such further action Article 7). Except as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commissionset forth on Schedule 1.1(d), the Antitrust Division of Company and its Subsidiaries shall not make any payments (other than de minimis payments) or grant any concessions to any third party in connection with obtaining any consents under Contracts (other than the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect Existing Financing Amendments solely at Buyer’s direction) without Buyer’s prior written consent.
(b) Notwithstanding anything in this Agreement to the transactions contemplated herebycontrary, and nothing in this Agreement shall require (or be deemed to avoid require) Buyer or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, Affiliates (or consent for the avoidance of doubt any of its Related Parties) (including in respect of the Company or any of its Subsidiaries) to agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Authority to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change accept (nor shall the assets or business of Galaxy Company or any of its Subsidiaries, unless such without Buyer’s prior written consent, agree to or accept) any obligation, restriction, requirement, limitation, divestiture, condition, understandingremedy, agreement cost, liability or order other action, in each case that is binding imposed or otherwise required by an Applicable Authority pursuant to or in connection with a Required Regulatory Approval or otherwise in connection with the transactions contemplated by this Agreement (or otherwise as set forth on Galaxy only Schedule 6.3(b)), and (1) that would reasonably be expected to be material (A) with respect to the Company and its Subsidiaries, to either the assets, liabilities, business or results of operation of the Company and its Subsidiaries taken as a whole (without giving effect to the transactions contemplated hereby) or (B) with respect to Buyer and its Subsidiaries, to Buyer’s and its Subsidiaries’ business of originating, selling and servicing residential mortgage loans taken as a whole (without giving effect to the transactions contemplated hereby) or (2) that would otherwise adversely impair the reasonably expected benefits of the transaction to Buyer in any material respect, and without limiting the event that foregoing, notwithstanding anything in this Agreement to the Closing occurscontrary, nothing in this Agreement shall require (or be deemed to require) Buyer or any of its Affiliates (or for the avoidance of doubt any Related Parties thereof) (including in respect of the Company or any of its Subsidiaries) to agree to or accept (nor shall the Company or any of its Subsidiaries, without Buyer’s prior written consent, agree to or accept) any obligation, restriction, requirement, limitation, divestiture, condition, remedy, cost, liability or other action as set forth on Schedule 6.3(b)(i) (any of the foregoing described in this Section 6.3(b), a “Burdensome Condition”); provided that none neither (x) any action imposed by an Applicable Authority as a matter of Mars, Holdco or the Merger Subs shall be required general applicability to take any of the actions described in clauses (iv)(x) or approved entities nor (y) above with respect any action required to any of their be taken by Buyer, the Company or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as Subsidiaries described on Schedule 6.3(b)(ii) shall be considered a whole, at or after the Effective TimeBurdensome Condition.
(c) Subject In furtherance and not in limitation of the foregoing, each of (i) the Company and, as necessary, its Subsidiaries, (ii) Seller and, as necessary, its Affiliates and (iii) Buyer and, as necessary, its Affiliates shall make, as promptly as reasonably practicable, each in a materially complete form, any filing that may be required with any Applicable Authority. Each of the Company, Seller and Buyer, including, as necessary, the respective Affiliates of each, shall supply as promptly as reasonably practicable any cooperation, additional information and documentary material that may be requested by any Applicable Authority and necessary to applicable legal limitations obtain any non-action, clearance, waiver, approval, consent, registration, permit, authorization or other confirmation from such Applicable Authority and furnish to the instructions other such necessary information and reasonable assistance as the other may reasonably request in connection with the preparation of any Governmental Entityrequired applications, Galaxy notices, registrations and Mars shall keep each other apprised requests as may be required or advisable to be filed with any Applicable Authority (including providing financial information and certificates as well as personal information of senior management, directors, officers, managers, general or limited partners or members of the status Company, Seller or Buyer, or the respective Affiliates of matters each, as applicable, and making individuals with appropriate seniority and expertise of the Company, Seller or Buyer, as applicable, available to participate in discussions or hearings). The Company and, as necessary, its Subsidiaries, and Buyer shall promptly (and, (x) with respect to any required filing of a Notification and Report Form pursuant to the HSR Act, in no event later than ten (10) Business Days in accordance with Section 6.4 and (y) with respect to any filing that may be required in connection with the Required Regulatory Approvals, in no event later than fifteen (15) Business Days, following the date hereof) make or cause to be made the filings and submissions set forth in Schedule 6.3(c) of the Disclosure Schedule, each in materially complete form (with any updates or supplements thereto to follow promptly thereafter), it being agreed that notwithstanding anything in this Agreement to the contrary, Buyer or Buyer’s counsel shall have primary direction over submissions to and communications with and between any Applicable Authority relating to the completion Required Regulatory Approvals.
(d) Except as prohibited by applicable Law or Governmental Order, each of Buyer, Seller and the Company, including, as necessary, the respective Affiliates of each, shall (i) cooperate and consult with each other, and promptly provide to each other any information necessary (including regarding compliance by each of Buyer and Seller’s Affiliates with applicable financial strength requirements of any Applicable Authority), in connection with any filing or submission with an Applicable Authority in connection with the transactions contemplated by this Agreement and in connection with any investigation or other inquiry by or before an Applicable Authority relating to the transactions contemplated by this Agreement, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions (except documents or portions thereof for which confidential treatment has been requested or given), (ii) promptly inform the other Party of (and if in writing, supply to the other Party) any substantive communication received by such Party from, or given by such Party to, any Applicable Authority (including that each Party shall promptly inform the other Party of any communication received by such Party of the potential imposition by an Applicable Authority of a Burdensome Condition or that could reasonably be expected to lead to a request by an Applicable Authority for a Burdensome Condition), and of any material communication received or given in connection with any Action by a private party, in each case regarding any of the transactions contemplated therebyby this Agreement, including promptly furnishing (iii) permit the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. Galaxy and Mars shall permit counsel for the other party reasonable opportunity to review and discuss in advance, and consider in good faith the views of the other party (to the extent timely communicated) in connection with, any proposed written communication analyses, presentations, memoranda, briefs, arguments, opinions, proposals or other communications to be submitted to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting Applicable Authority or discussion, either in person or by telephone, with any Governmental Entity third party whose consent may be required in connection with the proposed transactions unless it 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.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative (including in connection with any potential Burdensome Condition) and (iv) coordinate with the other in preparing and exchanging such information and promptly provide the other (and its counsel) with copies of all filings, presentations or submissions (and a summary of any Laworal presentations) made by such Party with any Applicable Authority relating to this Agreement or the transactions contemplated hereby.
(e) Unless prohibited by applicable Law or Governmental Order or by an Applicable Authority, each of Galaxy the Company and Mars Buyer, including, as necessary, the respective Affiliates of each, shall cooperate (i) to the extent reasonably practicable, not participate in all respects or attend any meeting, or engage in any substantive conversation, with any Applicable Authority in respect of the transactions contemplated by this Agreement without the other, (ii) to the extent reasonably practicable, give the other reasonable prior notice of any such meeting or conversation and (iii) in the event one such Party is prohibited by applicable Law or Governmental Order or by an Applicable Authority from participating in or attending any such meeting or engaging in any such conversation, keep the non-participating Party reasonably apprised with respect thereto.
(f) In furtherance of the foregoing, but subject to the limitations set forth in Section 6.3 and Section 6.4(c), Buyer, the Company and each other and of their respective Affiliates shall each use their respective commercially reasonable best efforts (i) to contest and resist any such action avoid the entry of, or proceeding and to have vacated, lifted, reversed or overturned overturned, any decree, judgment, injunction or other orderGovernmental Order, whether temporary, preliminary or permanent, that is in effect and that prohibitswould restrain, prevents prevent or restricts delay the consummation of the Mergers and the other transactions contemplated by this Agreementhereby and (ii) not to take any action the effect of which is to cause the generally applicable financial strength requirements (to the extent applicable, after giving effect to the transactions contemplated hereby, but for the avoidance of doubt, without limiting any change thereto constituting a Burdensome Condition) of any Applicable Authority applicable to Buyer and its Affiliates to not be satisfied.
Appears in 1 contract
Sources: Stock Purchase Agreement (New Residential Investment Corp.)
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each Each of the parties hereto Company, Parent and Purchaser shall use all its respective reasonable best efforts to take promptly(i) take, or cause to be taken, all actions, appropriate action and to do promptlydo, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws Law or otherwise to consummate and make effective the Mergers Offer and the other transactions contemplated by this Agreement, including as promptly as practicable (i) obtaining all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Galaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) obtaining all necessary consents, approvals or waivers from third parties, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties hereto shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof (or such later date as may be mutually agreed in writing by the parties hereto), file any and all required Notification and Report Forms under the HSR Act with respect to the Mergers and the other transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use (andincluding, in the case of Marsthe Company, Holdco to seek any consents and/or waivers that may be required to avoid any acceleration or pre-payment of any borrowed sums or otherwise in connection with the consummation of the Offer or the Merger Subsother transactions contemplated hereby under Contracts relating to the Company Group’s outstanding indebtedness for borrowed money), cause each of their respective affiliates to use(ii) reasonable best efforts to cooperate with each other in take such actions (xif any) determining whether any filings are as may be required to be made withcause the expiration of the notice or suspension periods or to obtain approvals under Competition Laws and other applicable Laws with respect to such transactions as promptly as practicable after the execution of this Agreement, or (iii) obtain (A) from any Governmental Entity any consents, licenses, permits, authorizations, waivers, clearances, approvals, and expirations authorizations or terminations of waiting periods are orders required to be obtained fromby Parent, Purchaser or the Company, or any third parties of their respective Subsidiaries, to consummate the Offer as promptly as practicable, and to avoid any action or proceeding by any Governmental Entity or any other Governmental Entities Person, in connection with the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby hereby, including the Offer, and (yB) timely making all such filings and timely obtaining all such consentsfrom any Third Party any consents or notices that are required to be obtained or made by Parent, permitsPurchaser or the Company, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or of their respective Subsidiaries, in connection with the transactions contemplated by such Governmental Entity; and this Agreement, (iv) takecause the satisfaction of the Offer Conditions, (v) defend and seek to prevent the initiation of all actions, lawsuits or cause other legal, regulatory or other Proceedings to be takenwhich it is a party challenging or affecting this Agreement or the consummation of the transactions contemplated by this Agreement, all other actions and doin each case until the issuance of a final, non-appealable Order, (vi) seek to have lifted or cause to be done, all other things necessary, proper rescinded any injunction or advisable restraining order that may adversely affect the ability of the parties to consummate and make effective the transactions contemplated hereby, including taking in each case until the issuance of a final, non-appealable Order, (andvii) prepare and file as promptly as practicable all documentation to effect all necessary applications, notices, petitions, filings, ruling requests, and other documents, and thereafter make any other required submissions, and pay any fees due in connection therewith, with respect to this Agreement and the case of MarsOffer required under any applicable Competition Law and other applicable Laws, Holdco (viii) to obtain as promptly as practicable all consents, waivers, licenses, orders, registrations, approvals, permits, rulings, authorizations and clearances necessary or advisable to be obtained from any Third Party or any Governmental Entity to consummate the Offer or the Merger Subsother transactions contemplated by this Agreement, cause each of their respective affiliates to takeand (ix) take all such further action reasonable steps as may be necessary promptly to resolve obtain all such objectionsconsents and approvals. Notwithstanding anything to the contrary in this Agreement, if anyParent, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction Purchaser or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as may Affiliates shall not be required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of its Subsidiaries shall become subject to, or consent or agree to or otherwise take any action with respect to, any Order, requirement, condition, understanding, understanding or agreement of or order of with a Governmental Authority Entity to sell, to license, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of Galaxy Parent or any of its Affiliates or the Company or any of its Affiliates, if such consent, agreement or other action would, or would reasonably be expected to, (1) have a material adverse effect on the assets, financial condition, or results of operations of Parent and its Subsidiaries (including, for these purposes, the Company and the Company Subsidiaries) taken as a whole (after giving effect to the Acceptance Time) or (2) require Parent, its Subsidiaries or the Company or the Company Subsidiaries to take any steps or actions that may be materially impracticable or that would violate, or cause any of them not to comply with, their continuing regulatory obligations (including those of the UK Listing Rules of the FCA).
(b) Each of Parent, Purchaser and the Company agrees that, between the date of this Agreement and the Acceptance Time, each of Parent, Purchaser and the Company shall not, directly or indirectly, (i) enter into or consummate any agreements or arrangements for an acquisition (via stock purchase, merger, consolidation, purchase of assets or otherwise) of any ownership interest in, or assets of, any Person, if such ownership interest or assets would reasonably be expected to result in any delay in obtaining, or the failure to obtain, any regulatory or other approvals required in connection with the transactions contemplated hereby (including the Offer), or (ii) take or agree to take any other action (including entering into agreements with respect to any equity investments, joint ventures, acquisitions, mergers, consolidations or business combinations) which would reasonably be expected to result in any delay in obtaining, or which would reasonably be expected to result in the failure to obtain, any approvals of any Governmental Entity or any other Person required in connection with the transactions contemplated hereby (including the Offer), or which would otherwise reasonably be expected to prevent or delay the consummation of the Offer.
(c) Each of Parent, Purchaser and the Company shall (i) cooperate and coordinate with the other in the making of, and shall make, any filings required pursuant to any Competition Law that have not heretofore been made by such Person as soon as practicable after the date of this Agreement but in no event later than five (5) Business Days following the date of this Agreement, (ii) supply the other with any information and documentary material that may be required in order to make such filings, and (iii) supply any additional information that reasonably may be required or requested by any Governmental Entity responsible for the enforcement of any Law. Further, and for the avoidance of doubt, without the written consent of the Company, Parent and Purchaser will not enter into any agreement with any Governmental Entity not to consummate the transactions contemplated by this Agreement.
(d) Without limiting the generality of anything contained in this Section 4.3, each party hereto shall (i) give the other parties prompt notice of the making or commencement of any request, inquiry, investigation, action or Proceeding by or before any Governmental Entity with respect to the Offer or any of the other transactions contemplated by this Agreement, (ii) keep the other parties notified as to the status of any such request, inquiry, investigation, action or other Proceeding, (iii) subject to the approval of the relevant Governmental Entity (if required), promptly notify the other parties of any oral or written communication to or from any Governmental Entity regarding the Offer or any of the other transactions contemplated by this Agreement and (iv) subject to the approval of the relevant Governmental Entity (if required), promptly provide to the other parties copies of any written communications received or provided by such party, or any of its Subsidiaries, unless such requirementfrom or to any Governmental Entity with respect to the Offer or any other transactions contemplated by this Agreement; provided, conditionthat (A) Parent and the Company may, understandingas each reasonably and in good ▇▇▇▇▇ ▇▇▇▇▇ advisable and necessary, agreement or order is binding on Galaxy only in designate any competitively sensitive material provided to the event that the Closing occursother under this Section 4.3 as “Antitrust Counsel Only Material”; provided that none of Mars, Holdco or the Merger Subs and (B) no party shall be required to take notify or provide to the other parties any of private correspondence with the actions described in clauses (iv)(x) or (y) above SIC with respect to the Offer or any of their or Galaxy’s assets or businesses if such action would other transactions contemplated by this Agreement. Such materials and the information contained therein shall be material in relation given only to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised outside counsel of the status of matters relating recipient and will not be disclosed by such outside counsel to the completion employees, officers or directors of the transactions contemplated therebyrecipient unless express permission is obtained in advance from the source of the materials (Parent, including promptly furnishing Purchaser or the other with copies of notices or other communications received by Galaxy or MarsCompany, as the case may be) or its legal counsel. Each party hereto will consult and cooperate with the other parties with respect to and provide any necessary information and assistance as the other parties may reasonably request with respect to all notices, submissions, or any of their respective Subsidiaries, from any third filings made by such party and/or with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with respect to such transactions. Galaxy this Agreement or any transactions contemplated by this Agreement and Mars shall will permit counsel for the other party reasonable opportunity parties to review and discuss in advance, advance and consider in good faith the views of the other party parties in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with the proposed transactions unless it 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.
(d) In furtherance and not in limitation Offer or any of the covenants of the parties contained in this Section 5.6, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, each of Galaxy and Mars shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any such 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 Mergers and the other transactions contemplated by this Agreement. In addition, except as may be prohibited by any Governmental Entity or by any applicable Law, in connection with any such request, inquiry, investigation, action or other Proceeding other than the matters contemplated by Section 4.8, in connection with or related to the Offer or the other transactions contemplated hereby, each party hereto will consult with the other parties in advance and give the other parties or their authorized representatives the opportunity to be present at each meeting or teleconference relating to such request, inquiry, investigation, action or other Proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation, action or other Proceeding.
(e) Nothing contained in this Agreement shall give Parent, directly or indirectly, the right to control or direct the operations of the Company prior to the Acceptance Time. Prior to the Acceptance Time, the Company shall exercise, subject to the terms and conditions of this Agreement, complete control and supervision over the Company’s and the Company Subsidiaries’ respective business operations.
Appears in 1 contract
Sources: Transaction Implementation Agreement (Grindrod Shipping Holdings Ltd.)