Efforts. (a) Subject to the terms and conditions of this Agreement, including the proviso to the first sentence of Section 6.9(d), the Company and Parent shall (and shall cause their respective Subsidiaries to) each use their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing all things necessary, proper or advisable under Applicable Law to (i) obtain all necessary actions, waivers, registrations, permits, authorizations, orders, consents and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periods, and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver required notices or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date. (b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.9, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date. (c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (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) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns. (d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date. (e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Goldfield Corp), Merger Agreement (Goldfield Corp)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, including each of the proviso to the first sentence of Section 6.9(d)parties hereto shall, and the Company and Parent shall (and shall cause their respective each of the Company Subsidiaries to) each , use their its reasonable best efforts (subject to, and in accordance with, applicable Law) to taketake promptly, or to cause to be taken, all actions actions, and to dodo promptly, or to cause to be done, and to assist and to cooperate with the other parties in doing doing, all things necessary, proper or advisable under Applicable Law to consummate and make effective the Merger and the other transactions contemplated hereby, including (i) obtain the obtaining of all necessary actionsactions or nonactions, waivers, registrations, permits, authorizations, orders, consents and approvals from Governmental Authorities, Entities and the expiry or early termination making of any applicable waiting periods, and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take the taking of all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental AuthoritiesEntity, in order (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 transactions contemplated hereby and (iv) the execution and delivery of any additional instruments reasonably necessary to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver required notices or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Datetransactions contemplated hereby.
(b) In furtherance Subject to the terms and not in limitation of conditions herein provided and without limiting the undertakings pursuant to this Section 6.9foregoing, each of Parent and the Company and Parent shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any)promptly, and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from after the date of this Agreement for the filing of the notification hereof, make their respective filings and report forms and related material thereafter make any other required submissions under the HSR Act)Act as promptly as reasonably practicable, (ii) provide or cause use reasonable best efforts to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (i) cooperate in all respects with each other in connection with (A) determining whether any filing filings are required to be made with, or submission with a consents, permits, authorizations, waivers or approvals are required to be obtained from, any third parties or other Governmental Authority Entities in connection with the Transactions execution and in connection with any investigation or other inquiry by or before a Governmental Authority relating to delivery of this Agreement and the Transactions, including any proceeding initiated by a private person, (ii) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any consummation of the Transactionstransactions contemplated hereby and (B) timely making all such filings and timely seeking all such consents, permits, authorizations or approvals, (iii) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting use reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ best efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or to cause to be taken, any all other actions and to do, or to cause to be done, all steps necessary other things necessary, proper or advisable to consummate and make effective the Merger and the other transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person Entity with respect to the Merger so as to enable the parties hereto Closing to consummate the Transactions occur as promptly soon as practicable, reasonably possible (and in any event prior no later than the Termination Date), (iv) subject to applicable legal limitations and the instructions of any Governmental Entity, keep each other apprised of the status of matters relating to the Outside Datecompletion of the transactions contemplated by this Agreement, including proposingto the extent permitted by Law promptly furnishing the other with true and complete copies of notices or other communications sent or received by the Company or Parent, negotiating, committing to and effecting, by consent decree, hold separate ordersas the case may be, or otherwiseany of their Subsidiaries, to or from any third party and/or any Governmental Entity with respect thereto, and permit the saleother to review in advance any proposed communication by such party to any supervisory or Governmental Entity and (v) give the other reasonable notice of, divestitureand, license 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 disposition inquiry or proceeding relating thereto.
(c) Subject to the rights of such of its Parent in Section 7.7, and its Subsidiaries’ assets, properties or businesses or in furtherance and not in limitation of the assetscovenants of the parties contained in this Section 7.6, properties if any administrative or businesses judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid instituted) challenging the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority Merger or any other Person under Antitrust Laws transaction contemplated by this Agreement, each of the Company and 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 would otherwise have the is in effect of preventing and that prohibits, prevents or materially delaying the restricts consummation of the Transactions; provided that, notwithstanding Merger or any other transactions contemplated hereby. Notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, nothing in no event this Section 7.6 shall Parent limit a party’s right to terminate this Agreement pursuant to Section 9.2(a) or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, b) so long as such agreements are conditioned upon the Closing)) any actionparty has, concession or undertakingprior to such termination, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in complied with its obligations under this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date7.6.
(ed) Neither Parent nor Merger Sub (nor The parties will cooperate and use their respective reasonable efforts to identify and comply with any other Subsidiary of Parent) shall enter into any agreement, transaction so-called “transaction-triggered” or any agreement to effect any transaction (including any merger or acquisition) “responsible property transfer” requirements under Environmental Laws that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain result from the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this AgreementMerger.
Appears in 2 contracts
Sources: Merger Agreement (Baker Hughes Inc), Merger Agreement (Bj Services Co)
Efforts. (a) Subject to the terms and conditions of this Agreement, including the proviso to the first sentence of Section 6.9(d), the Company and Parent shall (and shall cause their respective Subsidiaries to) each party will use their its reasonable best efforts and act in good faith to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing all things necessary, proper or advisable under Applicable Law this Agreement and applicable laws and regulations to consummate the Transaction and the other transactions contemplated by this Agreement as soon as practicable after the date hereof, including (i) obtain preparing and filing as promptly as practicable all necessary actionsapplications, notices, petitions, filings and other documents and (ii) to obtain as promptly as practicable all consents, waivers, licenses, orders, registrations, approvals, permits, authorizationsrulings, orders, consents authorizations and approvals clearances necessary or advisable to be obtained from Governmental Authorities, the expiry or early termination of any applicable waiting periods, and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, third party and/or any Governmental Authorities, Entity in order to consummate the Transactions as promptly as practicable Transaction and in the other transactions contemplated by this Agreement and the Ancillary Agreements (collectively, the “Required Approvals”); provided that Company will not be required by this Section 7.16 to take any event prior to action, including entering into any consent decree, hold separate orders or other arrangements, that (A) requires, before or after the Outside Date and (ii) deliver required notices Effective Time, the divestiture of any of its assets or any necessary additional instruments of the assets of its Subsidiaries or (B) limits, before or after the Effective Time, its freedom of action with respect to, and obtain required consents, waivers or its ability to retain any of its assets or businesses or any additional instruments necessary from, Third Parties in order to consummate of the Transactions as promptly as practicable and in any event prior to the Outside Date.
(b) assets or businesses of its Subsidiaries. In furtherance and not in limitation of the undertakings foregoing, each party hereto agrees to make an appropriate filing of a Notification and Report Form pursuant to this Section 6.9, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions transactions contemplated hereby (if anywhich filing shall in any event be made at least thirty (30) days prior to the proposed Closed Date agreed upon by the parties), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, supply as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any additional information and documentary material that may be requested by the DOJ or FTC under the HSR Act pursuant to such laws or by other Governmental Authorities under applicable Antitrust Laws (if any) such authorities and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including use reasonable best efforts to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (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) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the applicable waiting period periods under the HSR Act, Act and the receipt of Required Approvals under such other laws or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this Agreementfrom such authorities as soon as practicable.
Appears in 2 contracts
Sources: Merger Agreement (Intac International Inc), Merger Agreement (Intac International Inc)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, including each of the proviso parties to the first sentence of Section 6.9(d)this Agreement shall, the Company and Parent shall (and NPCC shall cause their respective Subsidiaries DCLIC to) each , use their its reasonable best efforts (subject to, and in accordance with, applicable Law) to taketake promptly, or to cause to be taken, all actions actions, and to dodo promptly, or to cause to be done, and to assist and to cooperate with the other parties in doing doing, all things necessary, proper or advisable under Applicable Law to consummate and make effective the Merger and the other transactions contemplated by this Agreement, including (i) obtain the obtaining of all necessary actionsactions or nonactions, waivers, registrations, permits, authorizations, orders, consents and approvals approvals, including the NPCC Approvals and the USAC Approvals, from Governmental Authorities, Entities and the expiry or early termination making of any applicable waiting periods, and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take the taking of all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental AuthoritiesEntity, in order (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 transactions contemplated by this Agreement, (iv) the execution and delivery of any additional instruments reasonably necessary to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date transactions contemplated by this Agreement and (iiv) deliver required notices or any such actions as necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties to cause the conditions to Closing set forth in order Article 6 to consummate the Transactions as promptly as practicable and in any event prior to the Outside Datebe satisfied.
(b) In furtherance Subject to the terms and not conditions set forth in limitation of this Agreement and without limiting the undertakings pursuant to this Section 6.9foregoing, each of Parent NPCC and the Company USAC shall (i) prepare and file use reasonable best efforts to cooperate with each other in (x) determining whether any notification and report forms and related material filings are required under the HSR Act and to be made with, or consents, permits, authorizations, waivers or approvals are required to be obtained from, any other applicable Antitrust Laws Governmental Entities in connection with respect the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement and (y) timely making all such filings and timely seeking all such consents, permits, authorizations or approvals, (ii) use reasonable best efforts to the Transactions (if any)take, or to cause to be taken, all other actions and any additional filings to do, or notifications and related material that are to cause to be done, all other things necessary, proper or advisable to permit consummation of consummate and make effective the TransactionsMerger and the other transactions contemplated by this Agreement, including taking all such further action as reasonably may be necessary to resolve such objections, if any, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (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) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (Entity or any other material correspondence or memorandaperson may assert under Regulatory Law (as hereinafter defined) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding Merger and the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faithother transactions contemplated by this Agreement, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person Entity with respect to the Merger so as to enable the parties hereto Closing to consummate the Transactions occur as promptly soon as practicable, reasonably possible (and in any event prior no later than the End Date (as hereinafter defined)), and (iv) subject to applicable legal limitations and the instructions of any Governmental Entity, keep each other apprised of the status of matters relating to the Outside Datecompletion of the transactions contemplated by this Agreement, including proposingto the extent permitted by Law promptly furnishing the other with copies of notices or other communications received by NPCC or USAC, negotiating, committing to and effecting, by consent decree, hold separate ordersas the case may be, or otherwiseany of their respective Subsidiaries, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, from any injunction, temporary restraining order or other Order in third party and/or any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(dEntity with respect thereto.
(c) or any other provision For purposes of this Agreement, in no event shall Parent or “Regulatory Law” means any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shallall state, if Parent so directsfederal and foreign statutes, agree rules, regulations, orders, decrees, administrative and judicial doctrines and other Laws requiring notice to, so long as such agreements are conditioned upon filings with, or the Closing)) consent or approval of, any actionGovernmental Entity, concession or undertakingthat otherwise may cause any restriction, unless such action, concession or undertaking is conditioned on in connection with the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to Merger and the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parenttransactions contemplated thereby, including any affiliated investment funds or any portfolio company (as such term is commonly understood in i) the private equity industry) ▇▇▇▇▇▇▇ Act of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise1890, the sale▇▇▇▇▇▇▇ Antitrust Act of 1914, divestiturethe ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, license the Federal Trade Commission Act of 1914 and all other Laws that are designed or other dispositionintended to prohibit, restrict or regulate actions having the purpose or effect of the assets, properties monopolization or businesses restraint of Parent trade or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend lessening competition through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid any Law governing the entry ofdirect or indirect ownership or control of any of the operations or assets of NPCC or DCLIC, including, without limitation, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, North Dakota Insurance Code or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance any Law with the terms and conditions purpose of this Agreementprotecting the national security or the national economy of any nation.
Appears in 2 contracts
Sources: Merger Agreement (US Alliance Corp), Plan and Agreement of Merger (US Alliance Corp)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, including Section 5.5 and the proviso to the first sentence other provisions of this Section 6.9(d)5.3, the Company Seller and Parent Purchaser shall reasonably cooperate with each other and use (and shall cause their respective Subsidiaries toAffiliates to use) each use their respective reasonable best efforts to take, take or cause to be takentaken all actions, all actions and to do, do 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 this Agreement and applicable Law to consummate the transactions contemplated by this Agreement as soon as practicable after the date hereof (including, for the avoidance of doubt, obtaining the Consent Order).
(b) Without limiting the generality of Section 5.3(a), (i) obtain unless otherwise agreed in writing by the Parties, Purchaser shall file as promptly as practicable, but in any event no later than fifteen (15) Business Days after the date hereof, all necessary actionsnotices, waiversreports and other filings (or drafts thereof where applicable) and shall use its reasonable best efforts to obtain as promptly as practicable all consents, registrations, permitsapprovals, authorizations, orders, consents permits and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periods, and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably authorizations necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, be obtained under any Governmental Authorities, Foreign Antitrust Laws in order to consummate the Transactions transactions contemplated by this Agreement, and (ii) Purchaser shall prepare and provide as promptly as practicable and all documentation requested by the FTC in any event prior to the Outside Date and (ii) deliver required notices or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions connection with its review of Purchaser as promptly as practicable and in any event prior to the Outside Date.
(b) In furtherance and not in limitation an acceptable purchaser of the undertakings pursuant to this Section 6.9Business, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date terms of this Agreement for or the filing terms of the notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside DateAncillary Agreements.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (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 applicable Laws relating to the Transactionsexchange of information, including any proceeding initiated by a private person, (ii) Purchaser and Seller shall have the right to review in advance, and and, to the extent practicable practicable, each shall will consult with the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions on 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate consider in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each views of the parties shall (i) have the right to review other in advance, and to the extent practicable each will consult the other onconnection with, all of the information relating to Purchaser or Seller or the other party and its respective SubsidiariesBusiness, as the case may be, and any of their respective Affiliates, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party third party and/or any Governmental Authority 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 governmental inquiryAntitrust Law to consummate the transactions contemplated hereby prior to the Outside Date including contesting, investigation defending and appealing any Action, threatened or proceeding 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 Transactions, (ii) promptly inform each other of any material communication (Consent Order or any other material correspondence or memoranda) received fromAntitrust Law. Notwithstanding the foregoing, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company performance of each Party’s respective obligations, Seller and Parent Purchaser may, as each deems advisable and determines is reasonably necessary, reasonably designate any competitively sensitive material provided to the other under pursuant to this Section 6.9 5.3(g) as “Antitrust Outside Counsel Only Material.” 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 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 6.95.3(g), materials provided to the other party Parties or its their counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary Business or information otherwise not germane to address reasonable attorney-client or other privilege or confidentiality concernsregulatory review.
(dh) In furtherance Subject to applicable Laws and the instructions of any Governmental Entity, Seller and Purchaser shall keep the other apprised of the undertakings status of Parent pursuant matters relating to Section 6.9(a) and Section 6.9(b)consents, but subject clearances, approvals or authorizations of any Governmental Entity of the transactions contemplated by this Agreement or the Burgundy Merger Agreement, including promptly furnishing the other with copies of notices or other communications received by Seller or Purchaser, as the case may be, or any of their respective Affiliates, from any Governmental Entity with respect to such consents, clearances, approvals or authorizations (except that no copies of such notices or other communications will be required to be furnished to the proviso extent they relate exclusively to this sentencethe Burgundy Merger Agreement). Neither Seller nor Purchaser shall permit any of their respective Affiliates, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority officers or any other Person so as Representatives to enable the parties hereto to consummate the Transactions as promptly as practicable, and participate in any event prior meeting (other than purely administrative phone calls) with any Governmental Entity in respect of any consents, clearances, approvals, authorizations, filings, investigation or other inquiry with respect to the Outside Datetransactions contemplated by this Agreement unless such Party consults with the other Party in advance and, including proposingto the extent permitted by such Governmental Entity, negotiating, committing gives the other Party the opportunity to attend and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding participate thereat.
(i) Notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of anything to the contrary in this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)i) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere nothing in this Agreement to the contrary, Parent shall not be required require (A) Seller or its Affiliates or Purchaser or its Affiliates to take (nor shall the Company or any Company Subsidiaries be permitted agree to take) take any action with respect to Parent its business or any Affiliate operations unless the effectiveness of Parentsuch agreement or action is conditioned upon the Closing, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industryB) of Parent Seller or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, take or agree to take any action that is not contemplated by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each casethis Agreement, other than the Company and its Subsidiaries). In additionany action that is reasonably required by, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any condition of or other person under Antitrust Laws term reasonably imposed by, the FTC in order to avoid entry of, connection with or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination arising out of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the TransactionsConsent Order, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation rights and obligations of the TransactionsParties 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), or (iii) obtain all other authorizations, consents, Orders the rights and approvals of Governmental Authorities necessary for the consummation obligations of the Transactions 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 accordance 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 terms and conditions of this AgreementTransferred 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 of this Agreement, including the proviso to the first sentence of Section 6.9(d), the Company and Parent The Stockholder shall (and shall cause their respective Subsidiaries to) each use their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other parties Parent in doing all things necessarygood faith with respect to submitting such forms, proper or advisable under Applicable Law to (i) obtain all necessary actions, waivers, registrations, permits, authorizations, orders, consents filings and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periods, and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps notices as may be reasonably necessary to obtain an approval or waiver fromrequired under the HSR Act, or to avoid an action or proceeding bythe Communications Act, any Governmental Authoritiesand Section 721 of the Defense Production Act (collectively, the “Specified Laws”) in order to consummate the Transactions as promptly as practicable Amalgamation and in any event prior to the Outside Date and (ii) deliver required notices or any necessary additional instruments toother transactions contemplated by this Agreement, the Plan of Amalgamation, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside DateAmalgamation Agreement.
(b) In furtherance and not Parent shall, in limitation connection with, or in relation to, satisfaction of the undertakings pursuant to this Section 6.9, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but conditions set forth in no event later than ten (10) Business Days from the date of this Agreement for the filing of the notification and report forms and related material required under the HSR ActSections 8.1(d), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if anye) and (iiig) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental AuthoritiesPlan of Amalgamation, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (i) cooperate in all respects and consult with each other the Stockholder, its representatives and/or advisors in connection with any filing or submission with a Governmental Authority in connection with under any of the Transactions Specified Laws, and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactionsrelated thereto, including any proceeding initiated by allowing the Stockholder, its representatives and/or advisors to have a private person, reasonable opportunity to review in advance and comment on drafts of filings and submissions; (ii) have promptly inform the right Stockholder, its representatives and/or advisors of any substantive communication received by or on behalf of Parent from, or given by or on behalf of Parent to, any Governmental Entities under any of the Specified Laws, by promptly providing copies to the Stockholder, its representatives and/or advisors of any such written substantive communications, regarding any of the transactions contemplated by this Agreement, the Plan of Amalgamation, and the Amalgamation Agreement; and (iii) permit the Stockholder, its representatives and/or advisors to review any substantive communication that it gives to, and consult with the Stockholder, its representatives and/or advisors in advanceadvance of any substantive meeting, telephone call or conference with, any Governmental Entities under any of the Specified Laws, and to the extent practicable each permitted by such Governmental Entities, give the Stockholder, its representatives and/or advisors the opportunity to attend and participate in such substantive meetings, telephone calls and conferences.
(c) In the event that any Governmental Entities specifically require that the Stockholder be a party to a network security agreement in order for the condition in Section 8.1(g) of the Plan of Amalgamation to be satisfied, the Stockholder shall consult use its commercially reasonable efforts to negotiate and agree to enter into such network security agreement, provided, that such agreement shall impose no obligations, duties, limitations or restrictions on the other onStockholder, any material filing made withits director designees on the board of directors of the Parent (the “Parent Board”), or written materials on the Stockholder’s rights under the Stockholder Rights Agreement, other than the following: (i) a requirement that one or more of the individuals to be submitted todesignated by the Stockholder to the Parent Board pursuant to the Stockholder Rights Agreement, any Governmental Authority shall be required to meet specified qualification criteria in order to serve as members of the Parent Board; and (ii) a waiver of sovereign immunity by the Stockholder in connection with such agreement; provided further, however, that, notwithstanding anything to contrary in this Agreement (including Section 3.5(d)) in no event shall the Transactions Stockholder be required to enter in to any network security agreement that contains the limitations specified in clause (i), unless the number of directors that the Stockholder is entitled to designate to serve on the Parent Board who are not required to meet any qualification criteria and of any material communication received or given who therefore may be designated to the Parent Board in connection with any proceeding by a private Person, in each case regarding any the sole discretion of the Transactions, (iii) as promptly as practicable, inform each other Stockholder shall be not less than the greater of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advancetwo, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other half of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or total number of directors that the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect Stockholder is entitled to designate pursuant to the Transactions. The parties shall (with respect to any in-person discussion or meeting)Stockholder Rights Agreement, and shall rounded up to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concernsnearest whole number.
(d) In furtherance connection with obtaining the approval of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable Entity the parties hereto receipt of which is a condition to consummate the Transactions as promptly as practicabletransactions contemplated by the Plan of Amalgamation, and in neither Parent nor any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assetsSubsidiaries shall, properties or businesses or without the prior written consent of the assetsStockholder, properties enter into any contract or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority agreement or any other Person under Antitrust Laws amendment or modification to a contract or agreement with any Governmental Entity that would otherwise have adversely affect the effect of preventing or materially delaying the consummation rights and powers of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent Stockholder or any of its Subsidiaries Affiliates, including with respect to the Stockholder’s designees to the Parent Board, in each case, under the Stockholder Rights Agreement; provided, however, that, the foregoing shall in no way limit the ability of Parent to agree with a Governmental Entity to have a security committee of the Parent Board with a scope of duties and powers that is substantially consistent with the scope of duties and powers of the security committee of the Company as of the date of this Agreement.
(e) Notwithstanding anything to the contrary contained in this Agreement, except as specifically set forth in Section 3.5(c), Parent expressly acknowledges and agrees that none of the Stockholder or any of its Affiliates, nor any of the Stockholder’s designees to the Parent’s Board, shall be required to agree to (nor shall the Company any terms, conditions or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action modifications with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in obtaining the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the any waiting period under the HSR Act, or the authorizations, any consents, Orders and approvals required under any other applicable Antitrust Lawpermits, applicable to waivers, approvals, authorizations or orders in connection with the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, Amalgamation or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactionstransactions contemplated by the Plan of Amalgamation, the Amalgamation Agreement or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this Agreement.
Appears in 2 contracts
Sources: Voting Agreement (Level 3 Communications Inc), Voting Agreement (Singapore Technologies Telemedia Pte LTD)
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each of the Parties to this Agreement shall (and shall cause each of their Affiliates to) use 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 Merger and the other transactions contemplated by this Agreement, including (i) the proviso obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Specified Approvals and the 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 consents, approvals or waivers from third parties required to be obtained in connection with the Merger; and (iii) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Parent, Company, or any of their respective Subsidiaries be required to pay prior to the first sentence Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of Section 6.9(dthe transactions contemplated by this Agreement under any Contract (with the exception of any filing fee, or similar, payable to any Governmental Entities with respect to the Specified Approvals or Parent Approvals). (b) Subject to the terms and conditions herein provided and without limiting the foregoing, the Company and Parent Parties shall (and shall cause their respective Subsidiaries Affiliates to) (i) promptly, but in no event later than twenty (20) Business Days after the date hereof, file any and all required notification and report forms under the HSR Act, and file as promptly as practicable any other required filings and/or notifications under other applicable Antitrust Laws or Foreign Investment Laws listed in Section 4.3(b) of the Company Disclosure Letter and Section 5.3(b) of the Parent Disclosure Letter, with respect to the 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 or any other Antitrust Law or Foreign Investment Laws; (ii) use their 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 by this Agreement and (y) 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; and (iv) use their reasonable best efforts to take, or cause to be taken, all other actions and to do, or cause to be done, and to assist and cooperate with the all other parties in doing all things necessary, proper or advisable under Applicable Law to consummate and make effective the transactions contemplated by this Agreement. Company and Parent shall not (iand shall cause their Subsidiaries and Affiliates not to) obtain all necessary actionsagree to stay, waivers, registrations, permits, authorizations, orders, consents and approvals from Governmental Authorities, the expiry toll or early termination of extend any applicable waiting periodsperiod under any Antitrust Law, and make all necessary registrations and filings (including filings enter into or extend a timing agreement with Governmental Authorities, if any) and take all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the Transactions as promptly as practicable and in Entity or withdraw or refile any event prior to the Outside Date and (ii) deliver required notices or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date.
(b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.9, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by any other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicableLaw or Foreign Investment Law, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation without the prior written consent of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside DateParty.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (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) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Trump Media & Technology Group Corp.), Merger Agreement (Trump Media & Technology Group Corp.)
Efforts. (a) Subject to the terms and conditions herein provided and without limiting the obligations of this Agreement, including the proviso any Party to the first sentence extent a higher standard of Section 6.9(d)efforts is expressly provided for in this Agreement with respect to any specific action or matter, each of the Company and Parent shall (and shall cause their respective Subsidiaries to) each Parties agrees to use their commercially reasonable best efforts to take, or cause to be taken, all actions action, and to do, or cause to be donedone as promptly as practicable, and to assist and cooperate with the other parties in doing all things necessary, proper or and advisable under Applicable Law applicable Laws to (i) obtain all necessary actions, waivers, registrations, permits, authorizations, orders, consents and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periods, consummate and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the Transactions effective as promptly as practicable the transactions contemplated by this Agreement and in any event prior the Ancillary Agreements, including cooperating with one another and using all commercially reasonable efforts to the Outside Date prepare all necessary documentation to effect all necessary filings and (ii) deliver required notices or any necessary additional instruments to, and to obtain required all consents, waivers or any additional instruments and approvals necessary from, Third Parties in order to consummate the Transactions as promptly as practicable transactions contemplated by this Agreement and the Ancillary Agreements (including the Merger and the Restructuring contemplated by the Merger Agreement), including the consents and approvals referred to in Section 4.2, Section 5.3 and Section 6.2 (or the Disclosure Schedules thereto); provided, however, that (a) no Party shall be obligated to pay any event prior consideration to the Outside Date.
any third party from whom any such consent, waiver or approval is requested and (b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.9, each prior written consent of Parent and the Company shall (i) prepare and file any notification and report forms and related material be required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (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) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made withamendment or modification to, or written materials (including correspondence) submitted totermination of, any Third Party and/or any Governmental Authority Assumed Contract in connection with obtaining any governmental inquirysuch consent, investigation waiver or proceeding with approval that is adverse in any material respect to the TransactionsPurchaser Parties, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company of their respective Subsidiaries. At the Asset Closing, the Seller Parties or their respective Subsidiaries be permitted (as appropriate) will, and from time to agree unless Parent so directs them (and they shalltime after the Asset Closing, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company its Subsidiaries be permitted will, execute and deliver such further instruments of conveyance, transfer and assignment and take such other action, at Purchaser’s sole expense, as Purchaser may reasonably require to take) any action with respect more effectively convey and transfer to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or Purchaser any of its Affiliates (the Purchased Assets, and Purchaser will execute and deliver such further instruments and take such other than action, at the Company’s sole expense, as the Company and or its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or Subsidiaries may reasonably require to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent Purchaser more effectively assume the Closing occurring prior to the Outside DateAssumed Liabilities.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this Agreement.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Sungard Capital Corp Ii), Asset Purchase Agreement (GL Trade Overseas, Inc.)
Efforts. (a) Subject to Upon the terms and subject to the conditions of set forth in this Agreement, including the proviso each party hereto agrees to the first sentence of Section 6.9(d), the Company and Parent shall (and shall cause their respective Subsidiaries to) each use their reasonable best efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, and to assist and cooperate with the other parties party in doing doing, all things necessary, proper or advisable under Applicable Law to consummate and make effective, as soon as possible following the date hereof, the Merger and the other transactions contemplated by this Agreement, including using reasonable best efforts in (i) obtain the obtaining of all necessary actions, non-actions, waivers, registrations, permits, authorizations, orders, consents and approvals from Governmental Authorities, Entities (the expiry or early termination of any applicable waiting periods“Required Consents”) prior to the Effective Time, and make the making of all necessary registrations and filings (including filings with Governmental Authorities, if any) and take the taking of all steps as may be reasonably necessary to obtain an approval or waiver a Required Consent from, or to avoid an action or proceeding by, any Governmental AuthoritiesEntity, in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver required notices or any the obtaining of all necessary additional instruments to, and obtain required consents, approvals or waivers from third parties, (iii) the contesting and defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger 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, (iv) the execution and delivery of any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable transactions contemplated by, and in to fully carry out the purposes of, this Agreement, and (v) refraining from taking any event prior action that would reasonably be expected to impede, interfere with, prevent or materially delay the Outside Dateconsummation of the Merger.
(b) In furtherance Comet and not Venus shall jointly develop, consult and cooperate with one another regarding the strategy for obtaining any Required Consent, including by determining the form and content of any analyses, appearances, presentations, memoranda, briefs, arguments, opinions, proposals, filings, agreements or other documents made or submitted by or on behalf of either party in limitation connection with the obtaining of the undertakings pursuant any Required Consents. Subject to this Section 6.9applicable Law, each of Parent Comet and the Company Venus shall (i) prepare promptly notify the other party of any communication, inquiry or investigation received by that party from, or given by it to, any Governmental Entity and file permit the other party to review in advance any notification proposed communication to any such Governmental Entity and report forms and related material required under incorporate the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Act)party’s reasonable comments, (ii) provide not agree to participate in any meeting or cause discussion with any such Governmental Entity in respect of any filing, investigation or inquiry concerning this Agreement or the Merger unless, to be provided as promptly as the extent reasonably practicable any information practicable, it consults with the other party in advance and, to the extent permitted by such Governmental Entity, gives the other party the opportunity to attend and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) participate therein and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (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) have the right to review in advance, and to the extent practicable each shall consult furnish the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other party with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliatesit and its Representatives, on the one hand, and any such Governmental Authority Entity or its respective staff, on the other hand, with respect to this Agreement and the Transactions. Notwithstanding the foregoingMerger, Parent shall, following consultation in order for such other party to meaningfully consult and participate in accordance with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall preceding clauses (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, ); provided that the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect materials furnished pursuant to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel 7.03(b) may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Viacom Inc.), Merger Agreement (CBS Corp)
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 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 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 terms and conditions Merger Agreement to terminate the Merger Agreement in accordance with its terms). Without limiting the generality of this Agreementthe foregoing, including the proviso to the first sentence of Section 6.9(d), the Company and Parent Purchaser shall (and shall cause its Affiliates to) and Parent and the Seller shall (and shall cause each of their respective Subsidiaries Affiliates to) each use their its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing all things necessary, proper or advisable under Applicable Law to (i) obtain all necessary actions, waivers, registrations, permits, authorizations, orders, consents and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periods, and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver required notices or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date.
(b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.9, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (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) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (ivA) as promptly as practicable furnish each other with copies of obtain all correspondence, filings Purchaser Required Approvals and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the TransactionsSeller Required Approvals, (iiB) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior 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 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, (C) defend all lawsuits or other legal, regulatory, administrative or other proceedings to which it or any of its Affiliates 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, 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 (E) seek to resolve any objection or assertion by any Governmental Authority challenging this Agreement or the transactions contemplated hereby.
(ii) In furtherance of the obligations set forth in Section 5.1(a)(i), (A) Purchaser shall promptly take (and shall cause each of its Affiliates to take) any and all actions necessary or advisable in order to avoid or eliminate each and every impediment to the Outside Dateconsummation 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, including proposingthe Purchaser Required Approvals, negotiatingincluding by placing assets in trust, capital guarantees, or operational restrictions or limitations on, and committing to and or effecting, by consent decree, hold separate orders, trust or otherwise, the sale, divestiturelicense, license disposition or other disposition holding separate of, such assets or businesses of Purchaser or any of its Affiliates (and the entry into agreements with, and submission to decrees, judgments, injunctions or orders of the relevant Governmental Authority) as may be required to obtain such approvals or consents of such of its and its Subsidiaries’ assets, properties Governmental Authorities or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the 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 Proceeding by a Governmental Authority or any other Person under Antitrust Laws orders that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of transactions contemplated by this Agreement, in no event (B) the Seller shall Parent make, subject to the condition that the transactions contemplated hereby or thereby actually occur, any of its Subsidiaries be required undertakings (including undertakings to agree accept operational restrictions or limitations or to (nor shall the Company make sales or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shallother dispositions, if Parent so directsprovided that such restrictions, agree tolimitations, so long as such agreements sales or other dispositions are conditioned upon the Closing)consummation of the transactions contemplated hereby) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be as are requested by Purchaser and are required to take (nor shall the Company obtain such approvals or any Company Subsidiaries be permitted to take) any action with respect to Parent consents of such Governmental Authorities or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the 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 orders that would prevent otherwise have the effect of preventing or materially delay delaying the consummation of the Transactionstransactions contemplated by this Agreement. None of the parties hereto shall, directly or indirectly, through one or more of their respective Affiliates, take any action (iii) obtain all in the case of Parent and Seller, other authorizationsthan exercising any right under the Merger Agreement to terminate the Merger Agreement in accordance with its terms), consents, Orders and approvals that would reasonably be expected to prevent or cause a material delay in the satisfaction of Governmental Authorities necessary for the conditions contained in Article VI or the consummation of the Transactions transactions contemplated hereby or, in accordance 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 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 Authority with respect to 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 hereto will consult and cooperate with the terms other parties and conditions will consider in good faith the views of the other parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted to any Governmental Authority in connection with the 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 of set forth in this Agreement, including the proviso to the first sentence of Section 6.9(d)Company, the Company Parent and Parent Offeror shall (and shall cause their respective Subsidiaries to) each use their all reasonable best efforts to taketake promptly, or cause to be taken, all actions actions, and to dodo promptly, or cause to be done, and to assist and cooperate with the other parties in doing doing, all things necessary, proper or advisable under Applicable Law applicable Laws to consummate and make effective the Offer, including (i) obtain all necessary actionsthe obtaining of the Specified Approvals and the Offeror Approvals, waivers, registrations, permits, authorizations, orders, consents and approvals from Governmental Authorities, Entities and the expiry or early termination making of any applicable waiting periods, and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take the taking of all steps as may be reasonably necessary to obtain an approval approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and Entity; (ii) deliver required notices or any the obtaining of all necessary additional instruments to, and obtain required 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 Offer and the other transactions contemplated by this Agreement, including by pursuing all avenues of administrative and judicial appeal; and (iv) the execution and delivery of any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Datetransactions contemplated by this Agreement.
(b) In furtherance Subject to the terms and not in limitation of conditions herein provided and without limiting the undertakings pursuant to this Section 6.9foregoing, each of the Company, Parent and the Company Offeror shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect use all reasonable best efforts to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (i) cooperate in all respects with each other in connection with (x) determining whether any filing filings are required to be made with, or submission with a 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 Authority Entities in connection with the Transactions execution and in connection with any investigation delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) promptly making all such filings and timely obtaining all such consents, permits, authorizations or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, approvals; and (ii) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting use reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ best efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, 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 hereby.
(c) 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 all steps subject to applicable legal limitations and the instructions of any Governmental Entity, the Company, on the one hand, and 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 the Company, Parent or Offeror, as the case may be, or any of their respective Subsidiaries or Affiliates, from any third party and/or any Governmental Entity with respect to such transactions. Subject to applicable Law relating to the exchange of information, the Company, on the one hand, and 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 avoid comply with contractual agreements, and (z) by the Company or eliminate each Offeror as necessary to address privilege or confidentiality concerns. Each of the Company, on the one hand, and every impediment under Parent and Offeror, on the other hand, agrees not to participate in any Antitrust Law that may be asserted substantive meeting or discussion, either in Person or by telephone, with any Governmental Authority 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) If any administrative or judicial action or proceeding, including any other Person so proceeding by a private party, is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as to enable violative of any Law, each of the parties hereto to consummate Company, on the Transactions as promptly as practicableone hand, and 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 event prior such action or proceeding and to the Outside Datehave vacated, including proposinglifted, negotiating, committing to and effecting, by consent reversed or overturned any decree, hold separate ordersjudgment, or otherwise, the sale, divestiture, license injunction or other disposition of such of its order, whether temporary, preliminary or permanent, that is in effect and its Subsidiaries’ assetsthat prohibits, properties prevents or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the restricts consummation of the Transactions; provided that, notwithstanding Offer and the other transactions contemplated by this Agreement. Notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, nothing in no event this Section 4.03 shall Parent or any of its Subsidiaries be required limit a party’s right to agree terminate this Agreement pursuant to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, Article V so long as such agreements are conditioned upon the Closing)) any actionparty has, concession or undertakingprior to such termination, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in complied with its obligations under this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date4.03.
(e) Neither Parent nor Merger Sub (nor Without limiting any other Subsidiary obligation under this Agreement, during the period from the date of Parent) this Agreement until the Offer Closing Date, each of the Company, Parent and Offeror shall enter into not take or agree to take any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) action that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of parties from obtaining any Governmental Approval in connection with the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry ofOffer, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay or impede the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this AgreementOffer.
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 Buyer and conditions of this Agreement, including the proviso to the first sentence of Section 6.9(d), the Company and Parent shall (and shall cause their respective Subsidiaries to) Seller will each use their respective commercially reasonable best efforts (i) to take, or to cause to be taken, all actions actions, and to do, or to cause to be done, and to assist and cooperate with the other parties in doing all things necessary, proper or advisable under Applicable Law or otherwise to (i) obtain all necessary actions, waivers, registrations, permits, authorizations, orders, consents and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periods, consummate and make all necessary registrations and filings (including filings with Governmental Authoritieseffective the transactions contemplated by this Agreement, if any) and take all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver to successfully complete the China Closing and obtain from any Governmental Authorities any material Permits and Licenses or approvals required notices to be obtained by Buyer or Seller or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties of their Subsidiaries in order to consummate connection with the Transactions as promptly as practicable and in any event prior to the Outside Date.
(b) In furtherance and not in limitation transfer of the undertakings pursuant Equity Interests to this Section 6.9, each of Parent Buyer and the Company shall consummation of the other transactions contemplated hereby, (iiii) prepare and file any notification and report forms and related material required under the HSR Act and to thereafter make any other applicable Antitrust Laws required submissions, with respect to this Agreement and the Transactions transactions contemplated hereby required under (if any), and A) any additional filings antitrust or notifications and related material that are necessary, proper or advisable competition laws applicable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) transactions contemplated by this Agreement within 10 Business Days from the date hereof, (B) any Applicable Law with respect to the assignment or licensing of this Intellectual Property, promptly after the License Agreement for and Intellectual Property Assignments are duly executed, and (C) any other Applicable Law. Each of Buyer and Seller (or their respective Affiliates) shall consult in advance, and consider in good faith the filing views of the notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (i) cooperate in all respects with each other in connection with any filing proposed written or submission material oral communication with a any Governmental Authority regarding antitrust matters, and shall share with each other copies of all written communications, subject to such confidentiality restrictions as may be reasonably requested. Neither Buyer nor Seller, nor any of their respective Affiliates, shall participate in connection any meeting with any Governmental Authority on antitrust matters unless it first consults 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) have the right to review in advance, and to the extent practicable each shall consult permitted by such Governmental Authority, gives the other on, any material filing made with, or written materials the opportunity to be submitted to, any Governmental Authority in connection with the Transactions present thereat. Each of Buyer and of any material communication received Seller shall be responsible for legal fees incurred and filing fees required to be paid by it or given their respective Affiliates in connection with any proceeding antitrust filing, and such fees shall not be split with or reimbursed by a private Personthe other. Nothing contained in this Section 7.03 shall be construed as requiring Buyer or Seller to agree to any terms or conditions that would impose (i) any limitations on Buyer’s or Seller’s ownership or operation of all or any portion of their respective, in each case regarding or any of their respective Subsidiaries’, businesses or assets, or to compel Buyer or Seller to dispose of or hold separate all or any portion of their respective, or any of their respective Subsidiaries’, businesses or assets, (ii) any limitations on the Transactionsability of Buyer to acquire or hold or to exercise full rights of ownership of the Equity Interests, (iii) as promptly as practicable, inform each other of any material communication (obligations on Buyer or any other material correspondence of its Subsidiaries or memoranda) received from, or given to, the DOJ or the FTC Seller or any other applicable Governmental Authority and of its Subsidiaries to maintain facilities, operations, places of business, employment levels, products or businesses or (iv) as any other obligation, restriction, limitation, qualification or other conditions on its ownership or operation of the Business, the Zhuhai Business or of any of their assets, businesses or operations.
(b) During the Pre-Closing Period, each of the parties shall keep the other party reasonably apprised of the status of matters relating to completion of the transactions contemplated by this Agreement, including promptly as practicable furnish each furnishing the other party with copies of all correspondence, filings and written notices or other written communications between them received by such party or their Subsidiaries any of its Affiliates or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, representatives with respect to the Transactionstransactions contemplated by this Agreement.
(c) During the Pre-Closing Period, each of the parties shall give prompt notice to the other party of (i) the occurrence or non-occurrence of any event, the occurrence or non-occurrence of which could reasonably be expected to cause any representation or warranty of such party in this Agreement to be untrue or inaccurate at or prior to the Closing in any material respect (provided that failure to provide such notice shall not permit a breach of representation or warranty to be submitted by the Buyer Indemnified Party as breach of covenant) and (ii) any failure of such party to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it hereunder. For the avoidance of doubt, the delivery of any notice pursuant to this Section 7.03 shall not limit or otherwise affect any remedies available to the party receiving such notice contained in this Agreement.
(d) During the Pre-Closing Period, each of the parties shall work together in good faith (i) to agree on the list of inventory that will be included in the calculation of Inventory Value and (ii) to agree on a specific calculation of the Inventory Value. At least three Business Days prior to Closing, Seller shall provide reasonable access by Buyer and its Affiliates, and their respective employees and agents, to inspect the inventory to be included in the calculation of the Inventory Value.
(e) During the Pre-Closing Period, Seller shall give Buyer and its Affiliates, and their respective employees and agents, reasonable access to the Zhuhai Facility and the books and records of the Zhuhai Business, and shall permit Buyer and its Affiliates to inspect manufacturing lines, including the Zhuhai Line Equipment, in operation at the Zhuhai Facility.
(f) During the Pre-Closing Period, upon Buyer’s request, Seller shall use commercially reasonable efforts to obtain authority and permission to sublicense for Buyer under the agreements set forth in Schedule 7.03(f) (the “Requested Sublicenses”). Buyer may, in its sole discretion, decline to enter into any Requested Sublicense. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company Buyer shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made withmake, or written materials (including correspondence) submitted toreimburse Seller for, any Third Party and/or any Governmental Authority payment or other expense paid or incurred in connection with obtaining any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concernsRequested Sublicenses.
(dg) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as As promptly as practicable, and in any event prior to practicable following the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision date of this Agreement, in no event Seller shall Parent or any provide Buyer with a detailed listing as of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action Closing Date with respect to Parent or any Affiliate each item of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood Registered IP included in the private equity industry) of Parent or any of its Affiliates (other than the Company Transferred IP and its Subsidiaries)all actions, including proposing, negotiating, committing filings and payment obligations due to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by be made to any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent within 180 days following the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this Agreement.
Appears in 2 contracts
Sources: Stock and Asset Purchase Agreement, Stock and Asset Purchase Agreement (Tessera Technologies Inc)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, including each of the proviso to the first sentence of Section 6.9(d), the Company and Parent parties hereto shall (and shall cause use their respective Subsidiaries to) each use their reasonable best efforts to taketake promptly, or cause to be taken, all actions actions, and to dodo promptly, or cause to be done, and to assist and cooperate with the other parties in doing doing, all things necessary, proper or advisable under Applicable Law applicable Laws to consummate the Offer and to consummate and make effective the Merger and the other transactions contemplated by this Agreement as soon as practicable, including (i) obtain the preparing and obtaining of all necessary actionsactions or nonactions, waivers, registrationsconsents, permitsclearances, authorizations, orders, consents approvals and approvals from Governmental Authorities, the expiry expirations or early termination terminations of any applicable waiting periods, including the Specified Approvals and make the Parent Approvals, from Governmental Entities and the preparing and making of all necessary registrations registrations, filings and filings (including filings with Governmental Authorities, if any) notices and take the taking of all steps as may be reasonably necessary to obtain an approval approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental AuthoritiesEntity, in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver required notices or any the obtaining of all necessary additional instruments to, and obtain required 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 Offer and the Merger and the other transactions contemplated by this Agreement and (v) the execution and delivery of any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and transactions contemplated by this Agreement; provided, however, that in no event shall the Company or any event of its Subsidiaries be required to pay prior to the Outside DateEffective Time any fee, penalty or other consideration to any third party for any consents or approvals required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) In furtherance Subject to the terms and not in limitation of conditions herein provided and without limiting the undertakings pursuant to this Section 6.9foregoing, each of the Company, Parent and the Company Merger Sub shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any)promptly, and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from Days, after the date of this Agreement for the filing of the notification hereof, file any and report forms all required Notification and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC Report Forms under the HSR Act or with respect to the Offer, Merger and the other transactions contemplated by other Governmental Authorities under applicable Antitrust Laws (if any) this Agreement, and (iii) as promptly as practicable, take such actions as are necessary or advisable use their reasonable best efforts to obtain prompt cause the expiration or termination of any applicable waiting period or other approval of consummation of periods under the Transactions by the DOJ or FTC or other applicable Governmental AuthoritiesHSR Act, including (ii) use their reasonable best efforts to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (i) cooperate in all respects with each other in connection with (x) determining whether any filing filings are required to be made with, or submission with a 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 Authority Entities in connection with the Transactions execution and in connection with any investigation or other inquiry by or before a Governmental Authority relating to delivery of this Agreement and the Transactions, including any proceeding initiated by a private person, (ii) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any consummation of the Transactionstransactions contemplated hereby and (y) timely preparing and making all such filings and timely preparing and obtaining all such consents, permits, authorizations or approvals, (iii) supply to any Governmental Entity as promptly as practicable, inform each other of practicable any material communication (additional information or documents that may be requested pursuant to any other material correspondence Law or memoranda) received from, or given to, the DOJ or the FTC or any other applicable by such Governmental Authority Entity and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, 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 hereby, including to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, any other department or agency of the United States, 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 all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person Entity with respect to the Offer and the Merger so as to enable the parties hereto Expiration Date and the Closing to consummate the Transactions occur as promptly soon as practicable, reasonably possible (and in any event prior to no later than the Outside End Date), including including, without limitation (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, order or otherwise, the sale, divestiture, license divestiture or other disposition of such any assets or businesses of Parent or its Subsidiaries or affiliates or of 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 Parent or its Subsidiaries’ (including the Surviving 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 Corporation’s) businesses, product lines or assets, properties or businesses or of the assets, properties or businesses to in each case as may be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable required in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order order in any Proceeding by a Governmental Authority suit or any other Person under Antitrust Laws that proceeding which would otherwise have the effect of preventing consummation of the Offer on the Expiration Date or the Closing, materially delaying the consummation Expiration Date or the Closing or delaying the Expiration Date or the Closing beyond the End Date; provided that neither 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 Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent Company or any of its Subsidiaries be required affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Company only in the event that the Closing occurs.
(c) Subject to agree applicable Law and the instructions of any Governmental Entity, the Company and Parent shall keep each other apprised of the status of matters relating to (nor shall the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by the Company or Parent, 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. The Company Subsidiaries be permitted and Parent shall permit counsel for the other party reasonable opportunity to agree 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 the Company and 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 Parent so directs them 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 they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon not in limitation of the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on covenants of the Closing. Notwithstanding anything parties contained in this Section 6.9 6.6, if any administrative or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company judicial action or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parentproceeding, including any affiliated investment funds proceeding by a private party, is instituted (or threatened to be instituted) challenging any portfolio company (transaction contemplated by this Agreement as such term is commonly understood in the private equity industry) violative of Parent or any Law, each of its Affiliates (other than the Company and its Subsidiaries)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, including proposinglifted, negotiating, committing to and effecting, by consent reversed or overturned any decree, hold separate ordersjudgment, or otherwise, the sale, divestiture, license injunction or other dispositionorder, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) , that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreementis in effect and that prohibits, transaction prevents or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the restricts consummation of the Transactions, or (iii) obtain all Merger and the other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Stealth Acquisition Corp.), Merger Agreement (Safenet Inc)
Efforts. (a) Subject to the terms and conditions of this Agreement, including the proviso to the first sentence of Section 6.9(d)Rocket, the Company Merger Subs, the Acquired RHI Group and Parent DG shall (cooperate with each other and use, and shall cause their respective Subsidiaries to) each use to use, their respective reasonable best efforts to to
(a) take, or cause to be taken, all actions actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing all things necessarythings, proper or advisable under Applicable Law to (i) obtain all necessary actions, waivers, registrations, permits, authorizations, orders, consents and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periods, and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver required notices or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date.
(b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.9, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of cause the Transactions, conditions to the Closing to be satisfied as promptly as reasonably practicable (but and in any event no event later than ten the Termination Date), and to consummate and make effective, in 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 (10) Business Days from the date of this Agreement for the filing of the notification and report forms and related material including any required or recommended filings under the HSR Actapplicable Regulatory Laws), (iib) provide obtain promptly all approvals, consents, clearances, expirations or cause to be provided as promptly as reasonably practicable terminations of waiting periods, registrations, permits, authorizations and other confirmations from any information and documentary material that may be requested by the DOJ Governmental Entity or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicablethird party necessary, take such actions as are necessary proper or advisable to obtain prompt expiration consummate the Transactions contemplated by this Agreement and (c) defend any Proceedings challenging this Agreement or termination of any applicable waiting period or other approval of the consummation of the Transactions contemplated by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (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) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactionsthis Agreement. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary contained in this Section 6.9Agreement, materials provided to none of Rocket, the other party Merger Subs or their respective Subsidiaries shall be required to, and none of RHI or its counsel may be redacted to remove references concerning Subsidiaries or DG shall, without the valuation prior written consent of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b)Rocket, but subject to the proviso to this sentence, Parent shall taketake any action, or cause commit to be taken, take any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate ordersaction, or otherwiseagree to any condition or limitation, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired in each case contemplated by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws this Section 8.2 that would otherwise have the effect of preventing or materially delaying is not conditioned on the consummation of the Transactions; provided thatMergers, notwithstanding the foregoing provisions of this Section 6.9(d) DG Exchange or any other provision of this Agreementthat would result in, or would be reasonably likely to result in, individually or in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shallaggregate, if Parent so directsa material adverse effect on Rocket, agree toRHI, so long DG and, as such agreements are conditioned upon the Closing)) any actionapplicable, concession or undertakingtheir respective Subsidiaries, unless such actiontaken as a whole, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement after giving effect to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside DateMergers.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of 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 of this Agreement, including the proviso to the first sentence of Section 6.9(d), the Company and Parent shall (and shall cause their respective Subsidiaries to) each use their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing doing, all things necessary, proper or advisable reasonably necessary under Applicable Law to consummate the Merger, including (i) obtain the obtaining of all necessary actions, waivers, registrations, permits, authorizations, orders, consents and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periods, and make the making of all necessary registrations and filings (including filings with Governmental Authorities, if any) and take all the taking of such reasonable steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding Proceeding by, any Governmental Authorities, in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver the delivery of required notices or any necessary additional instruments to, and obtain the obtaining of required consents, consents or waivers or any additional instruments necessary from, Third Parties in order and (iii) the execution and delivery of any additional instruments reasonably necessary to consummate the Transactions as promptly as practicable Merger and in any event prior to fully carry out the Outside Datepurposes of this Agreement.
(b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.96.09, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any)Act, and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the TransactionsMerger, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of the any notification and report forms and related material required under the HSR Act), Act except by mutual consent confirmed in writing) and (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside DateAct.
(c) Subject to Applicable LawLaw relating to the exchange of information, the Company and Parent and their respective counsel shall (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) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactionstransactions contemplated hereby, (iiiii) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority in connection with the transactions contemplated hereby and (iviii) as promptly as practicable furnish each other with copies of all material correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactionstransactions contemplated hereby. Notwithstanding the foregoing, The Company and Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting)practicable, provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactionstransactions contemplated hereby. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.96.09, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies Company and as necessary to address reasonable attorney-client or other privilege or confidentiality concernsthe Company Subsidiaries.
(d) In furtherance Parent and the Company shall use reasonable best efforts to cooperate, except where prohibited by Applicable Law, in determining the strategy for dealing with any Governmental Authority regarding Applicable Law relating to antitrust matters. Notwithstanding anything else contained herein, the Company shall not, without the prior written consent of Parent, (i) offer to sell, divest, hold separate, license, cause a Third Party to acquire, or otherwise dispose of, any Company Subsidiary, operations, divisions, businesses, product lines, customers or assets of Parent, its Affiliates, the Company or the Company Subsidiaries contemporaneously or after the Closing and regardless as to whether a Third Party purchaser must be identified or approved prior to the Closing (a “Divestiture”), (ii) agree or otherwise commit to undertake a Divestiture, (iii) take or commit to take such other actions that may limit Parent’s, its Affiliates’ the Company’s or the Company Subsidiaries’ freedom of action with respect to, or its ability to retain, one or more of its operations, divisions, businesses, products lines, customers or assets (a “Restraint”) or (iv) enter into any Order, consent decree or other agreement to effectuate any of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject foregoing. Notwithstanding anything to the proviso to contrary in this sentenceAgreement, Parent shall not be required to offer, negotiate, agree to, effect, commit to, or undertake any Divestiture or Restraint, or enter into any Order, consent decree or other agreement to effectuate any of the foregoing provisions of this Section 6.09 if doing so will cause a material and adverse effect on Parent or the Company.
(e) Each of Parent and the Company shall use its reasonable best efforts to take, or cause to be taken, any all reasonable actions and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate ordersdo, or otherwisecause to be done, all things reasonably necessary, proper or advisable to obtain the sale, divestiture, license or other disposition of such of its amendments and its Subsidiaries’ assets, properties or businesses or consents listed on Section 6.09(e) of the assets, properties or businesses Company Disclosure Schedules (it being understood and agreed that the failure to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, obtain any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not in itself be required a condition to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay otherwise affect Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this Agreementobligations hereunder).
Appears in 2 contracts
Sources: Merger Agreement (Constant Contact, Inc.), Merger Agreement (Endurance International Group Holdings, Inc.)
Efforts. (a) Subject to the terms and conditions of this Agreementhereof, including the proviso to the first sentence of Section 6.9(d), the Company and Parent each party hereto shall (and shall cause their respective Subsidiaries to) each use their reasonable best good faith efforts to take, or cause to be taken, all actions ensure that the conditions set forth in Annex I are satisfied and to do, or cause to be done, and to assist and cooperate with the other parties in doing all things necessary, proper or advisable under Applicable Law to (i) obtain all necessary actions, waivers, registrations, permits, authorizations, orders, consents and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periods, consummate and make all necessary registrations effective the transactions ------- contemplated by the Offer and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the Transactions this Agreement as promptly as practicable and in any event prior to the Outside Date and (ii) deliver required notices or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Dateaccordance with this Agreement.
(b) In furtherance The Company agrees to provide, and not will cause its subsidiaries and its and their respective officers, employees, advisers and lenders to provide, all reasonable cooperation in limitation connection with the arrangement of any financing contemplated by the Commitment Letter to be consummated contemporaneous with the Closing in respect of the undertakings transactions contemplated by this Agreement, including without limitation, participation in meetings, due diligence sessions, road shows, the preparation of offering memoranda, private placement memoranda, prospectuses and similar documents, and taking such other action as otherwise reasonably requested by Purchaser. The Company will also provide commercially reasonable assistance to the Purchaser in connection with the execution and delivery of any other documentation, as may be requested by Purchaser, necessary to give effect to the transactions contemplated by this Agreement.
(c) The Company and the Purchaser will as promptly as practicable file with the Federal Trade Commission and the Department of Justice the notification and report forms required for the transactions contemplated hereby and any supplemental information that may be reasonably requested in connection therewith pursuant to this Section 6.9the HSR Act, each of Parent and the Company shall (i) prepare and file any which notification and report forms and related supplemental information will comply in all material required under respects with the requirements of the HSR Act and any other applicable Antitrust Laws Act. The Company shall pay all filing fees required with respect to the Transactions (if any)notification, report and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation other requirements of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Act), .
(iid) provide or cause to be provided as promptly as reasonably practicable If at any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions time prior to the Outside Date.
(c) Subject Effective Time any event or circumstance relating to Applicable Law, either the Company and Parent and or Purchaser or any of their respective counsel shall (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 subsidiaries, should be discovered by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, (ii) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective SubsidiariesPurchaser, as the case may be, that appears and which should be set forth in any filing made withan amendment to the Offer Documents, the Schedule TO, or written materials (including correspondence) submitted tothe Schedule 14D-9, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) discovering parties will promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties event or businesses or of circumstance. If at any time after the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are Effective Time any further action is necessary or advisable in order desirable to avoid carry out the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision purposes of this Agreement, in no event shall Parent or any including the execution of its Subsidiaries be required additional documents, assignments and other instruments, the proper officers and directors of each party to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as all such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Datenecessary action.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination Each of the waiting period under the HSR Actparties agrees to cooperate with each other in taking, or causing to be taken, all actions necessary to delist the authorizationsCommon Shares from the NASDAQ National Market System if the listing requirements would no longer be satisfied after the Effective Time; provided, consentsthat such delisting shall not be -------- effective until after the Effective Time.
(f) Purchaser agrees to use commercially reasonable efforts to promptly satisfy any conditions in the Commitment Letter, Orders and approvals required under any other applicable Antitrust Law, applicable not to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry ofwaive or amend, or to effect provide any waivers, in respect of the dissolution of, any injunction, temporary restraining order or other Order that Commitment Letter in a manner which would prevent or materially delay adversely affect the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions Offer in accordance with the terms and conditions of this Agreement, including its timing thereof.
Appears in 2 contracts
Sources: Merger Agreement (CLC Acquisition Corp), Merger Agreement (Coinmach Laundry Corp)
Efforts. (a) Subject to the terms and conditions of this Agreement, including the proviso to the first sentence of Section 6.9(d), the Company and Parent shall (cooperate with each other and shall cause their respective Subsidiaries to) each use their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing all things necessary, proper or advisable under Applicable Law to consummate the Merger and the other transactions contemplated by this Agreement as promptly as practicable, including (i) obtain all necessary actions, waivers, registrations, permits, authorizations, orders, consents preparing and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periods, and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the Transactions 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 any event prior to the Outside Date and each case, as required by this Section 8.01, (ii) deliver obtaining and maintaining as required notices or by this Section 8.01 all approvals, consents, registrations, Permits, authorizations, licenses, waivers and other confirmations required to be obtained from any Governmental Authority that are necessary additional instruments toto consummate the transactions contemplated by this Agreement, and obtain required consents, waivers or (iii) executing and delivering any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and transactions contemplated hereby; provided, that in no event shall Parent, Merger Subsidiary, the Company or any event prior of their respective Subsidiaries be required to the Outside Datewaive any right or condition set forth in this Agreement or any Transaction Document.
(b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.9foregoing, each of Parent and the Company shall shall, as necessary, (i) prepare make an appropriate filing of a Notification and file any notification and report forms and related material required under Report Form pursuant to the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but and in no any event later than within ten (10) Business Days from after the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Acthereof), (ii) provide or cause within 15 calendar days following the date of this Agreement, submit to be provided as promptly as reasonably practicable DDTC any information and documentary material that may be requested by notifications regarding the DOJ or FTC under transactions contemplated hereby required pursuant to Section 122.4 of the ITAR, (iii) make each other appropriate filing required pursuant to any Foreign Regulatory Law (collectively with the HSR Act or by other Governmental Authorities under applicable Antitrust Act, ITAR and CFIUS Laws (if any) and (iiiRegulations, the “Regulatory Laws”) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of (iv) comply at the earliest practicable date with any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to request under any of the TransactionsRegulatory Laws for additional information, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Lawdocuments, the Company and Parent and or other materials received by each of them or any of their respective counsel shall Subsidiaries or Affiliates from any Regulatory Authority in respect of such filings or such transactions and (iv) cooperate in all respects 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 submission with a Governmental Authority changes suggested in connection with the Transactions therewith), and in connection with resolving any investigation or other inquiry by of any Regulatory Authority under any of the Regulatory Laws with respect to any such filing or before a Governmental Authority relating any such transaction. Each such party shall use its reasonable best efforts to the Transactions, including furnish to each other all information required for any proceeding initiated by a private person, (ii) have the right to review in advance, and to the extent practicable each shall consult the application or other on, any material filing made with, or written materials to be submitted to, made pursuant to any Governmental Authority Regulatory Law in connection with the Transactions and transactions contemplated by this Agreement. Each such party shall promptly inform the other parties hereto of any material oral communication received or given in connection with with, and provide copies of written communications with, any proceeding by a private Person, in each case Regulatory Authority regarding any of the Transactions, (iii) as promptly as practicable, inform each other of any material communication (such filings or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactionssuch transaction. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company No party hereto shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to independently participate in any material discussion or formal meeting with any Governmental Regulatory Authority in respect of any filingsuch filings, investigation investigation, or other inquiry without giving the other parties hereto prior notice of the meeting and, to the extent permitted by such Regulatory Authority, the opportunity to attend and/or participate. Subject to Applicable 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 TransactionsRegulatory Laws. The Company and Parent Any party may, as each it deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other parties under this Section 6.9 8.01(b) as “Antitrust Counsel Only Material.” Notwithstanding anything outside counsel only”. Such materials and the information contained therein shall be given only to the contrary outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient, unless express written permission is obtained in advance from the source of the materials. 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 6.98.01(b) in a manner so as to preserve any applicable privilege. All filing fees payable in connection with the notifications, filings, registrations or other materials provided contemplated by this Section 8.01(b) shall be paid entirely by the Parent. Notwithstanding the foregoing, the Parent shall direct and control all communications and strategy relating to obtaining the approvals required under any Regulatory Laws following consultation with the Company.
(c) The parties shall cooperate to submit a draft joint voluntary notice to CFIUS with respect to the transactions contemplated by 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 parties shall submit the CFIUS Notice as soon as practicable. The parties shall 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 parties 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 communications containing its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject confidential business information if such confidential information is unrelated to the proviso transactions contemplated by this Agreement. The parties shall undertake best efforts to this sentence, Parent shall promptly take, or cause to be taken, any all action, and do, or cause to be done all steps things necessary or advisable to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so obtain CFIUS Approval as to enable the parties hereto to consummate the Transactions as promptly soon as practicable, and in any event prior to the Outside End Date, including proposingprovided, negotiatinghowever, committing that no party shall be required to and effecting, by consent decree, hold separate orders, take or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses agree to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, take any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws undertaking that would otherwise have the effect of preventing or materially delaying is not conditioned on the consummation of the Transactions; provided thattransactions contemplated by this Agreement. All filing fees payable in connection with the notifications, notwithstanding the foregoing provisions of filings, registrations or other materials contemplated by this Section 6.9(d8.01(c) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to paid entirely by the Parent.
(nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)d) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall (i) defend or contest any Action challenging this Agreement or the transactions contemplated hereby by any Regulatory Authority and (ii) solely with regards to the HSR Act, oppose, through litigation and including Action on the merits (and all appeals with respect thereto), any claim asserted in court or other forum by any Governmental Regulatory Authority or any other person under Antitrust Laws Person in order to avoid entry of, or to have vacated or terminated, any decree, Order or judgment (whether temporary, preliminary or permanent) that would restrain or prevent the Closing occurring prior to by the Outside End Date.
(e) Neither Notwithstanding anything herein to the contrary, Parent nor Merger Sub (nor shall, as soon as possible and in any other Subsidiary of Parent) shall enter into event prior to the End Date take any agreementand all action necessary, transaction or any agreement including but not limited to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration selling or termination otherwise disposing of, or holding separate and agreeing to sell or otherwise dispose of, assets, categories of assets or businesses of the waiting period under the HSR Act, Company or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, its Subsidiaries; (ii) avoid terminating existing relationships, contractual rights or obligations of the Company or its Subsidiaries; (iii) terminating any venture or other arrangement of the Company or its Subsidiaries; (iv) creating any relationship, contractual rights or obligations of the Company or its Subsidiaries or (v) effectuating any other change or restructuring of the Company or its Subsidiaries (and, in each case, to enter into agreements or stipulate to the entry ofof an order or decree or file appropriate applications with the Federal Trade Commission, the commencement Department of litigation seeking Justice, any attorney general of any state of the entry ofUnited States, the European Commission, any other competition authority of any jurisdiction, CFIUS or any other Governmental Authority (collectively, “Regulatory Authority”) in connection with any Regulatory Law and in the case of actions by or with respect to the Company or its Subsidiaries or its or their businesses or assets; by consenting to such action by the Company and provided, that any such action may, at the discretion of the Company, be conditioned upon consummation of the Merger) (each a “Divestiture Action”) solely to ensure (x) that no Regulatory Authority enters any order, decision, judgment, decree, ruling, injunction (preliminary or permanent), or to effect the dissolution ofestablishes any law, any injunctionrule, temporary restraining order regulation or other Order action preliminarily or permanently restraining, enjoining or prohibiting the consummation of the Merger and (y) that no Regulatory Authority with the authority to clear, authorize or otherwise approve the consummation of the Merger, fails to do so by the End Date. In the event that any action is threatened or instituted by a Regulatory Authority challenging the Merger as violative of any Regulatory Law, Parent shall take all action necessary, including but not limited to any Divestiture Action, to avoid or resolve such action. 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 Transactionstransactions contemplated by this Agreement, Parent shall use reasonable best efforts to vacate, modify or suspend such injunction or order so as to permit such consummation prior to the End Date. Notwithstanding anything to the contrary, for the avoidance of doubt, none of the Company or any of its Subsidiaries or Affiliates prior to the Closing shall be required to take any action set forth in Section 8.01(c) or Section 8.01(d) (which is not conditioned on the Closing) to satisfy the efforts standard set forth in this Section 8.01 (or elsewhere in this Agreement).
(f) Except as specifically required by this Agreement, Parent shall not (and shall cause (x) the Persons listed on Section 8.01(f)-1 of the Company Disclosure Letter and their controlled Affiliates and (y) the Persons listed on Section 8.01(f)-2 of the Company Disclosure Letter not to) (1) acquire or agree to acquire (by merging or consolidating with, or by purchasing a controlling portion of the assets of or equity in, or by any other manner), any Person or portion thereof which competes, in any material respect, in the consumer cybersecurity industry, or otherwise acquire or agree to acquire any assets which compete, in any material respect, in the consumer cybersecurity industry or (2) assign any of its rights hereunder to any Person or permit any Person to acquire a direct or indirect interest in Parent, in each case, if the entering into an agreement to consummate, or the consummation of, such acquisition, merger or consolidation or assignment would reasonably be expected to (i) impose any material delay in the obtaining of, or increase the risk of not obtaining, any permits, orders or other approvals of any Regulatory Authority necessary to satisfy the condition set forth in Section 9.01(c), Section 9.01(d) or Section 9.01(e), (ii) increase the risk of any Regulatory Authority entering an order prohibiting the consummation of the transactions contemplated hereby which would prevent the satisfaction of the condition set forth in Section 9.01(b), or (iii) obtain all other authorizationsincrease the risk of not being able to remove any Restraint. For purposes of this Section 8.01(f), consents, Orders and approvals of Governmental Authorities necessary for with respect to the consummation controlled Affiliates of the Transactions in accordance with Persons listed on Section 8.01(f)-1, “control” means the terms and conditions ability to nominate a majority of this Agreementthe members of the board of directors or similar governing body of such Person.
Appears in 2 contracts
Sources: Merger Agreement (McAfee Corp.), Merger Agreement (McAfee Corp.)
Efforts. (a) Subject to Upon the terms and subject to the conditions of this Agreement, including the proviso to the first sentence of Section 6.9(d)each Party shall, the Company and Parent shall (and shall cause their respective Subsidiaries Affiliates to) each , use their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the each other parties in doing order to do, all things necessary, proper or advisable under Applicable applicable Law (including under any Antitrust Law) to consummate the Merger and the other transactions contemplated by this Agreement as promptly as practicable, but in any event before the End Date, including: (i) obtain preparing and filing all necessary actions, waiversforms, registrations, permits, authorizations, orders, consents and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periodsnotifications, and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps as may notices required to be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, in order filed to consummate the Transactions Merger and the other transactions contemplated hereby (including as promptly as practicable and set forth in any event prior to the Outside Date Section 5.05(d) below); and (ii) deliver obtaining and maintaining any requisite consent, approval, authorization, waiver or Order required notices to be obtained from any other Person, including any Governmental Authority (whether or any necessary additional instruments tonot such consents, and obtain required consentsapprovals, authorizations, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior Orders are conditions to the Outside Dateconsummation of the Merger pursuant to Article 6).
(b) In furtherance and not in limitation of the undertakings foregoing, such reasonable best efforts of Parent and Merger Sub shall include, at Parent’s sole cost and expense, taking any action to avoid or eliminate each and every impediment that may be asserted by any Governmental Authority with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably possible, and in any event before the End Date. In particular, ▇▇▇▇▇▇ and ▇▇▇▇▇▇ Sub agree that their obligations pursuant to this Section 6.95.05 shall include (i) if reasonably determined by Parent to be necessary after consultation with the Company, each “pulling and refiling” their filing made pursuant to the HSR Act in order to delay or avoid the issuance of any request for additional information or documentary material issued pursuant to the HSR Act (a “Second Request”), (ii) negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any of the businesses, product lines or assets of the Surviving Corporation or its Subsidiaries, (iii) terminating existing, or creating new, relationships, contractual rights or obligations of the Surviving Corporation or its Subsidiaries, (iv) effectuating any other change or restructuring of the Company or its Subsidiaries, or otherwise taking or committing to take any actions that limit the freedom of action of, the Company or its Subsidiaries, with respect to, or its ability to retain, one or more assets or businesses, or (v) resolving any objection asserted with respect to the transactions contemplated under this Agreement raised by any Governmental Authority; provided, however, that Parent and Merger Sub shall not be required to take such actions under this Section 5.05(b) that would, or would reasonably be expected to (in Parent’s reasonable opinion) result in a material and adverse effect (provided that clause (B) and the proviso to the definition of “Company Material Adverse Effect” shall be disregarded) on the Company and its controlled Affiliates, taken as a whole (and, for the avoidance of doubt, Parent shall not be required to take any such actions with respect to any of the assets, voting securities, properties, products, product lines, services or businesses of Parent or any of its Affiliates); provided, further that neither Parent nor Merger Sub will be required to respond to a Second Request or any comparable formal or informal request or in-depth review pursuant to any other applicable Law (including under any Antitrust Law) from any Governmental Authority.
(c) Notwithstanding anything to the contrary in this Agreement, (i) no action taken by Parent pursuant to this Section 5.05 shall entitle Parent to any reduction of the Per Share Merger Consideration, and (ii) the parties acknowledge that the Company and its Affiliates shall not be required to divest or hold separate or otherwise take or commit to take any action that, prior to the Closing, limits its freedom of action with respect to, or its ability to retain, the business of the Company or its Subsidiaries, any of its or their respective assets and properties, or any material portion thereof.
(d) Parent and the Company shall (i) prepare agree to make, and file to cause their respective Affiliates to make, any notification and report forms and related material required necessary filings under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but after execution of this Agreement; provided, however, that any necessary filings under the HSR Act shall, in no event later than ten (10) any event, be made within 10 Business Days from after the date execution of this Agreement for (provided, that if the filing Federal Trade Commission or the Antitrust Division of the notification United States Department of Justice is closed or not accepting filings under the HSR Act (a “Closure”), such 10 Business Day period shall be extended day-for-day, for each Business Day such Closure is in effect). Parent and report forms the Company shall, and related material required shall cause their respective Affiliates to, (i) comply at the earliest practicable date with any request under the HSR Act or any other Antitrust Laws to provide information, documents or other materials requested by any Governmental Authority (including during any extension of the waiting period under the HSR Act pursuant to a “pull and refile” of Parent and Merger Sub’s filing made pursuant to the HSR Act), and (ii) provide coordinate and cooperate in connection with their respective efforts to obtain termination or cause to be provided expiration of the applicable waiting period and all requisite clearances and approvals under the HSR Act and any other Antitrust Laws as promptly as reasonably practicable practicable, but in any information event before the End Date, and documentary material that may unless prohibited by applicable Law or a Governmental Authority, (A) keep outside antitrust counsel for the other Party promptly informed of any communication received by such Party or any of its Affiliates from any Governmental Authority regarding any of the transactions contemplated hereby, and (B) provide outside antitrust counsel for the other Party with a reasonable opportunity to review any proposed communication by such Party or its Affiliates with any Governmental Authority, consult with outside antitrust counsel for the other Party prior to any meeting or conference with any Governmental Authority, and attend and participate in such meetings or conferences. Without the prior written consent of the Company (such consent not to be requested by unreasonably withheld, conditioned or delayed), Parent will not, and will not permit its Affiliates to consent or agree to extend the DOJ or FTC waiting period under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of enter into any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (i) cooperate in all respects agreement 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) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactionstransactions contemplated by this Agreement. Notwithstanding the foregoing, Each of Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 5.05 as “Antitrust Counsel Only Materialoutside antitrust counsel only.” Such competitively sensitive material 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 antitrust 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 outside antitrust counsel. Notwithstanding anything to the contrary in this Section 6.95.05, materials provided to the other party hereto or its outside antitrust counsel may be redacted to remove references concerning the valuation of the Acquired Companies Company and as necessary to address reasonable attorney-client its Subsidiaries or other privilege competitively sensitive information. The parties shall coordinate and consult in good faith with respect to the overall strategy relating to the HSR Act and any other applicable Antitrust Laws, including with respect to any antitrust filings, notifications, submissions and communications with or confidentiality concernsto any Governmental Authority; provided, however, that Parent shall make the final determination as to the appropriate course of action.
(de) In furtherance Parent shall not, and shall not permit any of its Affiliates to, enter into (or agree to enter into) any merger or acquisition that would reasonably be expected to: (i) materially delay or materially and adversely affect Parent’s ability to obtain termination or expiration of the undertakings of Parent pursuant to Section 6.9(a) applicable waiting period and Section 6.9(b), but subject all requisite clearances and approvals under the HSR Act and any other Antitrust Laws with respect to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions Merger as promptly as practicable, and but in any event prior to before the Outside End Date, including proposing, negotiating, committing to ; or (ii) materially delay or materially and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order adversely affect Parent’s ability to avoid the entry of, and the commencement of litigation any Action seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreementrestricts, transaction prevents or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination prohibits consummation of the waiting period Merger and the other transactions contemplated by this Agreement under the HSR Act, Act or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this AgreementLaws.
Appears in 2 contracts
Sources: Merger Agreement (Gentex Corp), Merger Agreement (Gentex Corp)
Efforts. (a) Subject to Upon the terms and subject to the conditions of this Agreement, including each of the proviso to the first sentence of Section 6.9(d), the Company and Parent Parties shall (and shall cause their respective Subsidiaries to) each use their its commercially reasonable best efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, and to assist and cooperate with the other parties Parties in doing doing, all things necessary, proper or advisable under Applicable applicable Law to consummate and make effective the transactions contemplated by this Agreement as promptly as practicable, including: (i) obtain the preparation and filing as promptly as practicable of all necessary actionsapplications, waiversnotices, petitions, registrations, permitsfilings, authorizations, orders, consents and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periodsruling requests, and make all necessary registrations other documents, and filings (including filings with Governmental Authorities, if any) and take the taking of all steps as may be reasonably necessary necessary, to obtain an approval as promptly as practicable all consents, 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 Authorities, Authority in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and transactions contemplated by this Agreement, (ii) deliver the obtaining of all other necessary Consents or waivers from third parties, provided that, other than payments required notices 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 necessary additional instruments topayment 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 transactions contemplated by this Agreement, and obtain required consents, waivers or (iv) the execution and delivery of any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Datetransactions contemplated by this Agreement.
(b) In furtherance Subject to the other terms and not in limitation of conditions herein provided and without limiting the undertakings pursuant to this Section 6.9foregoing, each of the Seller shall cause its Subsidiaries and Seller Parent to, and the Company Buyer shall cause each Buyer Parent to:
(i) prepare use their commercially reasonable efforts to cooperate with one another in (A) determining whether filings are required (or considered by the Parties to be advisable) under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976 and file any notification the rules and report forms regulations thereunder (“HSR Act”), and related material required (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 and permit the other applicable Antitrust Laws with respect 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 Transactions (if any)antitrust merits, any potential remedies, commitments or undertakings, the timing of any waivers, consents, approvals, permits, orders or authorizations, and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of agreement regarding the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval timing of consummation of the Transactions transactions contemplated by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(cthis Agreement) Subject to Applicable Law, the Company and Parent and their respective counsel shall (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 any filings or investigation concerning this Agreement or the Transactions, including any proceeding initiated by a private person, (ii) have the right to review in advance, and to the extent practicable each shall consult transactions contemplated hereunder unless it consults with the other on, any material filing made with, or written materials Party and its Representatives in advance and invites the other Party’s Representatives to be submitted to, any attend unless the Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and prohibits such attendance;
(iv) as promptly as practicable furnish each 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 written communications between them or (and memoranda setting forth the substance thereof) that they, their Subsidiaries or Affiliates, on the one hand, and their respective Representatives intend to submit to any Governmental Authority or its respective staffAuthority, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, it being understood that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and received from any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material 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 this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided provisions of the HSR Act; and
(vi) deliver to the other party or its Party’s outside counsel may be redacted complete copies of all documents furnished to remove references concerning any Governmental Authority as part of any filing.
(c) The Buyer shall use commercially reasonable efforts to eliminate any concern on the valuation part of any Governmental Authority regarding the legality of the Acquired Companies and as necessary transactions contemplated by this Agreement under the HSR Act; provided, however, that in no event shall Buyer be obligated to address reasonable attorney-client take any action to sell or dispose of any particular businesses, product lines, assets or voting securities, or take any other privilege or confidentiality concernssimilar actions to secure antitrust clearance from such Governmental Authority.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject addition to the proviso foregoing, the Buyer agrees to this sentenceprovide such assurances as to financial capability, Parent shall take, or cause to be taken, any resources and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that creditworthiness as may be asserted reasonably requested by any Governmental Authority third party whose consent or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person approval is sought under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor Whether or not the Acquisition is consummated, each Party shall be responsible for all filing fees and payments imposed on such Party by any other Subsidiary of Parent) shall enter into Governmental Authority in order to obtain any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable or waivers pursuant to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this AgreementSection 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 of this Agreement, including the proviso to the first sentence each of Section 6.9(d)Matrix, the Company and Parent shall (and shall cause their respective Subsidiaries to) each use their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing all things necessary, proper or advisable under Applicable applicable Law to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as practicable after the date of this Agreement, including (i) preparing and filing, in consultation with the other Parties, as promptly as 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 other documents and (ii) obtaining and maintaining (and cooperating with each other to obtain or maintain) all necessary actionsapprovals, waiversconsents, registrations, permits, authorizationsauthorizations and other confirmations required to be obtained from any Governmental Authority or other Third Party, ordersin each case, consents that are necessary, proper or advisable to consummate and approvals from Governmental Authoritiesmake effective the Merger and the other transactions contemplated by this Agreement (whether or not such approvals, consents, registrations, permits, authorizations and other confirmations are conditions to the consummation of the Merger pursuant to Article VIII); provided, however, that, no party shall be required to pay (and, without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed), none of Matrix, the expiry Company or early termination the SpinCo Entities shall pay or agree to pay) any fee, penalty or other consideration to any other Third Party (other than any filing fees paid or payable to any Governmental Authority) for any approval, consent, registration, permit, authorization or other confirmation required for the consummation of the transactions contemplated by this Agreement; provided, further, that the Parties agree and acknowledge that, except as provided in Section 8.1(a), receipt of any applicable waiting periodssuch any approval, and make all necessary registrations and filings (including filings with Governmental Authoritiesconsent, if any) and take all steps as may be reasonably necessary registration, permit, authorization or other confirmation is not a condition to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver required notices or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside DateClosing.
(b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.9foregoing, each of the Company, Matrix and Parent shall make, as promptly as reasonably practicable, all required filings pursuant to the HSR Act and other Competition Laws, with respect to the transactions contemplated by this Agreement; provided that the filing by each of the Company and Parent of a Notification and Report Form pursuant to the HSR Act with respect to the Merger shall be made within five (5) Business Days of the date of this Agreement, unless a later date is agreed to in writing by the Company and Parent. Each of the Company, Matrix and Parent shall respond promptly to all requests for additional information and documentary material by a Governmental Authority, and shall comply promptly with such requests unless the Company and Parent agree with each other to defer compliance, and shall use reasonable best efforts to take all other actions necessary and appropriate to obtain all necessary approvals and to cause the expiration or termination of applicable waiting periods as soon as practicable so as to permit consummation of the contemplated transactions as soon as practicable.
(c) The Company and Parent shall each request early termination of the waiting period with respect to the Merger under the HSR Act and neither Parent nor the Company shall, without the written consent of the other (which consent shall not be unreasonably withheld): (i) pull and refile any notification under the HSR Act, (ii) enter into any timing agreement with any Governmental Authority or (iii) agree with any Governmental Authority not to consummate the transactions contemplated by this Agreement for any period of time. Parent and Matrix shall each pay 50% of the filing fees payable under the HSR Act, irrespective of whether the transactions contemplated by this Agreement are consummated.
(d) Except as prohibited by applicable Law or Order, Parent, Matrix and the Company shall (i) prepare cooperate and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (i) cooperate in all respects consult with each other in connection with any filing or submission with a Governmental Authority in connection with the Transactions transactions contemplated by this Agreement and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactionstransactions contemplated by this Agreement, including any proceeding initiated by a private personparty, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions, (ii) have promptly inform the right to review other of (and if in advancewriting, and supply to the extent practicable each shall consult the other on, other) any material filing made withcommunication received from, or written materials to be submitted given to, the Federal Trade Commission, the Antitrust Division of the Department of Justice, or any other Governmental Authority in connection with the Transactions and of any material communication received or given in connection with any proceeding by a private PersonAuthority, in each case regarding any of the Transactionstransactions contemplated by this Agreement, (iii) as promptly as practicablepermit the other to review and discuss in advance, inform each and consider in good faith the views of the other of in connection with, any material communication (analyses, presentations, memoranda, briefs, arguments, opinions and proposals or other communications to be submitted to any other material correspondence or memoranda) received fromGovernmental Authority, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as coordinate with the other in preparing and exchanging such information and promptly as practicable furnish each provide the other with copies of all correspondencefilings, filings presentations or submissions (and written communications between them or their Subsidiaries or Affiliates, on the one hand, and a summary of any oral presentations) made by such Party with any Governmental Authority relating to this Agreement or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations transactions contemplated hereby under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and or any other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust LawsCompetition Law; provided, that documents or information required to be provided pursuant to this Section 7.1(d) (x) may be redacted as necessary (I) to comply with contractual arrangements, (II) to avoid waiver of any legal privilege, or (III) to remove references concerning the valuation or alternative bidders, and (y) may be designated as “outside counsel only,” which materials and the information contained therein shall be given only to outside counsel and previously-agreed consultants of the recipient and will not be disclosed by such outside counsel or consultants to employees, officers, or directors of the recipient without the advance written consent of the party providing such materials.
(e) Unless prohibited by applicable Law or Order or by the applicable Governmental Authority, each of the parties Company, Matrix and Parent shall (i) have the right to review not participate in advanceor attend any meeting, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears or engage in any filing made withconversation, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of the Merger (including with respect to any filingof the actions referred to in Section 7.1(a)) without the other, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to (ii) give the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to reasonable prior notice of any such meeting or conversation and (iii) in the contrary event one such Party is prohibited by applicable Law or Order or by the applicable Governmental Authority from participating or attending any such meeting or engaging in this Section 6.9any such conversation, materials provided to keep the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorneynon-client or other privilege or confidentiality concernsparticipating Parties reasonably apprised with respect thereto.
(df) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentenceforegoing, Parent shall take, or cause to be taken, use reasonable best efforts take any and all steps necessary action to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person with respect to the transactions contemplated by this Agreement so as to enable the parties hereto Closing to consummate the Transactions occur as promptly soon as practicable, reasonably possible and in any event prior to event, before the Outside End Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, (i) the sale, divestiture, license or other disposition of such prompt use of its and its Subsidiaries’ assets, properties or businesses or reasonable best efforts to ensure the expiration of all waiting periods under the assets, properties or businesses to be acquired by Parent pursuant heretoHSR Act, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunctionpermanent, preliminary or temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would delay, restrain, prevent, enjoin or otherwise have the effect of preventing or materially delaying the prohibit consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of transactions contemplated by this Agreement, (A) the proffer and agreement by Parent of its willingness to sell, lease, license or otherwise dispose of, or hold separate pending such disposition, and promptly to effect the sale, lease, license, disposal and holding separate of, such assets, rights, product lines, categories of assets or businesses or other operations or interests therein of the Company and the SpinCo Entities (and the entry into agreements with, and submission to orders of, the relevant Governmental Authority giving effect thereto), (B) the proffer and agreement by Parent of its willingness to take such other actions with respect to the Company and the SpinCo Entities, and promptly to effect such other actions (and the entry into agreements with, and submission to orders of, the relevant Governmental Authority giving effect thereto) (either (A) or (B), a “Remedy”), in no each case if such action should be reasonably necessary or advisable to avoid, prevent, eliminate or remove the actual, anticipated or threatened (x) commencement of any Proceeding in any forum or (y) issuance of any Order that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the transactions contemplated by this Agreement by any Governmental Authority, and (C) the defense through litigation on the merits of any claim asserted in any court, agency or other proceeding by any Person, including any Governmental Authority, seeking to delay, restrain, prevent, enjoin or otherwise prohibit consummation of such transactions; and (ii) the prompt use of its reasonable best efforts to take, in the event that any permanent, preliminary or temporary Order is entered or issued, or becomes reasonably foreseeable to be entered or issued, in any proceeding or inquiry of any kind that would make consummation of the transactions contemplated by this Agreement in accordance with its terms unlawful or that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the transactions contemplated by this Agreement, any and all steps (including the appeal thereof and the posting of a bond) 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, provided, however, that nothing in this Agreement shall (1) require Parent to proffer or agree to any Remedy with respect to, including any sale, lease, license or other disposition of assets, rights, product lines, categories of assets or businesses or other operations or interests therein of, Parent or any of its Subsidiaries be required to agree to or Affiliates (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything other Person in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to which Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (own any equity interest) other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, the SpinCo Entities or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of (2) obligate Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation to agree to any Remedy not conditioned on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this AgreementClosing.
Appears in 2 contracts
Sources: Merger Agreement (Meredith Corp), Merger Agreement (IAC/InterActiveCorp)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, including each of the proviso to the first sentence of Section 6.9(d), the Company and Parent parties hereto shall (and shall cause their respective Subsidiaries to) each use their its reasonable best efforts to taketake promptly, or to cause to be taken, all actions actions, and to dodo promptly, or to cause to be done, and to assist and to cooperate with the other parties in doing doing, all things necessary, proper or advisable under Applicable Law applicable Laws to consummate and make effective, and to satisfy all conditions to, the 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 Parent or Merger Sub, of the Offer Conditions, including (i) obtain the obtaining as promptly as practicable of all necessary actionsactions or nonactions, waivers, registrationsconsents, permitsclearances, authorizationsapprovals, orders, consents and approvals from Governmental Authorities, the expiry expirations or early termination terminations of any applicable waiting periods, including the Company Approvals and make the Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Authorities, if any) and take the taking of all steps as may be reasonably necessary to obtain an approval approval, clearance, or waiver from, or to avoid an action or proceeding by, any Governmental AuthoritiesEntity, in order to consummate (ii) the Transactions 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 Offer, the Merger and in any event prior the other transactions contemplated hereby (iv) the taking of all actions reasonable and necessary to obtain the Outside Date Debt Financing and (iiv) deliver required notices or any necessary additional instruments to, the execution and obtain required consents, waivers or delivery of any additional instruments reasonably necessary from, Third Parties in order to consummate the Transactions transactions contemplated hereby. 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), to take any 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 Company and its Subsidiaries) taken as promptly as practicable and a whole, in any event prior each case measured on a scale relative to the Outside DateCompany 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) In furtherance Subject to the terms and not in limitation of conditions herein provided (including Section 6.6(a)) and without limiting the undertakings pursuant to this Section 6.9foregoing, each of Parent and the Company and Parent shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any)promptly, and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten eight (10) 8) Business Days from after the date of this Agreement for the filing of the notification hereof, file any and report forms all Notification and related material Report Forms required under the HSR Act), (ii) provide or Act with respect to the Offer and the Merger and the other transactions contemplated hereby and use reasonable best efforts to cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation periods under the HSR Act, provided that Parent and Company may agree to modify the timing of the Transactions by the DOJ Notification and Report Form filing status of Parent or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior Company to the Outside Date.
extent that they mutually agree that doing so may expedite the HSR Act review, (cii) Subject use reasonable best efforts to Applicable Law, the Company and Parent and their respective counsel shall (i) cooperate in all respects with each other in connection with (x) determining whether any filing filings are required or submission with a advisable, in the reasonable judgment of Parent, 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 Authority Entities in connection with the Transactions execution and in connection with any investigation or other inquiry by or before a Governmental Authority relating to delivery of this Agreement and the Transactions, including any proceeding initiated by a private person, (ii) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any consummation of the Transactionstransactions contemplated hereby and (y) promptly making all such filings and timely obtaining all such consents, permits, authorizations or approvals, (iii) supply to any Governmental Entity as promptly as practicablepracticable additional information or documents that may be requested pursuant to any Regulatory Law or by such Governmental Entity, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting use reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ best efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall taketake 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 all such further action as may be necessary to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, or competition authorities of any other jurisdiction for which, in the reasonable judgment of Parent, consents, permits, authorizations, waivers, clearances, approvals and all steps necessary expirations or terminations of waiting periods are required or 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 Antitrust Law that may be asserted by any Governmental Authority or any other Person Entity with respect to such transactions so as to enable the parties hereto Closing to consummate occur as soon as reasonably possible (and to enable the Transactions Offer Closing to occur as promptly soon as practicable, reasonably possible and in any event prior to no later than the Outside End Date), including proposing, (x) negotiating, committing to and effecting, by consent decree, hold separate orders, order or otherwise, the sale, divestiture, license divestiture or other disposition of such any assets or businesses of Parent or its Subsidiaries or of the Company or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date limits the freedom of Parent or its Subsidiaries’ (including the Surviving Corporation’s) freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporation’s) businesses, product lines or assets, properties or businesses or of the assets, properties or businesses to in each case as may be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable required in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority suit or any other Person under Antitrust Laws that proceeding which would otherwise have the effect of preventing or the Closing, materially delaying the consummation Offer Closing or the Closing or delaying the Offer Closing beyond the End Date, provided that the Company will only be required to take or commit to take any such action, or agree to any such condition or restriction, if such action, commitment, agreement, condition or restriction is binding on the Company only in the event the Offer Closing occurs.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, the Company and Parent shall keep each other apprised of the Transactions; provided thatstatus of matters relating to the completion of the Offer, notwithstanding the foregoing Merger and the other transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by the Company or Parent, 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. 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 communication 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 the Company and 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) Subject to Section 6.6(a), in furtherance and not in limitation of the covenants of the parties contained in this Section 6.9(d6.6, 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 provision transaction contemplated by this Agreement as violative of any Regulatory Law, each of the Company and 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; 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 the transactions contemplated by this Agreement, whether commenced prior to or after the execution and delivery of this Agreement; provided, further, however, that 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 no event advance, and the Company shall consult with Parent with respect to litigation strategy on a regular basis. The Company agrees that it shall not settle any litigation commenced after the date of this Agreement against the Company or any of its Subsidiaries be required to agree to (nor shall directors or executive officers by any stockholder of the Company relating to this Agreement, the Offer, the Merger, or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shallother transaction contemplated hereby, if Parent so directs, agree to, so long as such agreements are conditioned upon without the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate prior written consent of Parent, including any affiliated investment funds such consent not to be unreasonably withheld, conditioned or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Datedelayed.
(e) Neither Parent nor 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 Sub and the other transactions contemplated hereby, including (nor any i) the ▇▇▇▇▇▇▇ Act of 1890, the ▇▇▇▇▇▇▇ Antitrust Act of 1914, the HSR Act, the Federal Trade Commission Act of 1914 and all other Subsidiary Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of Parent) shall enter into any agreement, transaction monopolization or any agreement to effect any transaction (including any 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.
(f) Prior to the Effective Time, the Company shall, and shall cause its Subsidiaries to, and shall use its reasonable best efforts to cause its Representatives to, provide all cooperation that would is necessary, customary or advisable and reasonably be expected requested by Parent to prevent assist Parent in the arrangement of any third party debt financing for the purpose of financing the Offer and/or the Merger, the fees and expenses incurred in connection therewith, and the other transactions contemplated hereby (the “Debt Financing”) (it being understood that the receipt of such Debt Financing is not a condition to the Offer or materially delay Parent’s or Merger Sub’s ability tothe Merger), including: (i) obtain the timely expiration or termination of the waiting period under the HSR Actparticipating in meetings, or the authorizations, consents, Orders presentations and approvals required under any other applicable Antitrust Law, applicable to the Transactions, due diligence sessions and (ii) avoid assisting with the entry ofpreparation of materials for presentations, memoranda and similar documents required in connection with the commencement Debt Financing; provided, however, that (x) nothing herein shall require such cooperation to the extent it would (A) unreasonably disrupt the conduct of litigation seeking the entry ofCompany’s business or (B) require the Company to agree to pay any fees, reimburse any expenses or otherwise incur any liability or give any indemnities prior to effect the dissolution of, Effective Time for which it is not promptly reimbursed or simultaneously indemnified and (y) any injunction, temporary restraining order or other Order that would prevent or materially delay documentation executed by the Company of any of its Subsidiaries shall not become effective until the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this AgreementClosing.
Appears in 2 contracts
Sources: Merger Agreement (Thermo Fisher Scientific Inc.), Agreement and Plan of Merger (Dionex Corp /De)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, including each of the proviso to the first sentence of Section 6.9(d)parties hereto shall, and the Company and Parent shall (and shall cause their respective each of its Subsidiaries to) each , use their all reasonable best efforts to taketake promptly, or cause to be taken, all actions actions, and to dodo promptly, or cause to be done, and to assist and cooperate with the other parties in doing doing, all things necessary, proper or advisable under Applicable Law applicable Laws to consummate the Offer and to consummate and make effective the Merger and the other transactions contemplated by this Agreement, including (i) obtain the obtaining of all necessary actionsactions or nonactions, waivers, registrationsconsents, permitsclearances, authorizationsapprovals, orders, consents and approvals from Governmental Authorities, the expiry expirations or early termination terminations of any applicable waiting periods, including the Specified Approvals and make the Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Authorities, if any) and take the taking of all steps as may be reasonably necessary to obtain an approval approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental AuthoritiesEntity, in order (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 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 as promptly as practicable and transactions contemplated by this Agreement; provided, however, that in no event shall the Company or any event of its Subsidiaries be required to pay prior to the Outside Date 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 (other than de minimis amounts or if Parent and (ii) deliver required notices Merger Sub have provided adequate assurance of repayment). Neither party shall take any action that is intended or any necessary additional instruments would reasonably be expected to, and obtain required consentsindividually or in the aggregate, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and result in any event prior of the Tender Offer Conditions or the conditions to the Outside DateMerger set forth in Article VI not being satisfied or the satisfaction of those conditions being materially delayed.
(b) In furtherance Subject to the terms and not in limitation of conditions herein provided and without limiting the undertakings pursuant to this Section 6.9foregoing, each of Parent and the Company and Parent shall (i) prepare and file use reasonable best efforts to cooperate with each other in (x) determining whether any notification and report forms and related material filings are required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any)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 Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of, the Merger and the transactions contemplated hereby and (y) timely making all such filings and timely seeking all such consents, permits, authorizations or approvals, (ii) supply to any Governmental Entity as promptly as practicable any additional filings information or notifications documents that may be requested pursuant to any Law or by such Governmental Entity and related material that are (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 permit consummation of consummate and make effective the TransactionsMerger and the other transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Act), (ii) provide state antitrust enforcement authorities or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination competition authorities of any applicable waiting period other nation or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (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) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (jurisdiction or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or person may assert under any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, Law with respect to the Transactions. Notwithstanding Merger and the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faithother transactions contemplated hereby, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person Entity with respect to the Merger so as to enable the parties hereto Expiration Date and the Closing to consummate the Transactions occur as promptly soon as practicable, reasonably possible (and in any event prior to no later than the Outside End Date), including including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, order or otherwise, the sale, divestiture, license divestiture or other disposition of such any material assets or businesses of Parent or its Subsidiaries or controlled affiliates or of 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 Parent or its Subsidiaries’ (including the Surviving Corporation’s) or controlled affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries (including the Surviving Corporation’s) businesses, product lines or assets, properties or businesses or of the assets, properties or businesses to in each case as may be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable required in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order order in any Proceeding by a Governmental Authority suit or any other Person under Antitrust Laws that proceeding which would otherwise have the effect of preventing or materially delaying the consummation of the TransactionsOffer 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 thatthat neither the Company nor any of its Subsidiaries shall become subject to, notwithstanding or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Company or any of its affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Company only in the event that the Closing occurs.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, the Company and Parent shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated hereby, including to the extent permitted by Law promptly furnishing the other with copies of notices or other communications sent or received by the Company or Parent, 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. The Company and Parent shall permit the other party to review in advance any proposed communication to any supervisory or Governmental Entity. Each of the Company and 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, each of the Company and 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 Merger and the other transactions contemplated by this Agreement. Notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, nothing in no event this Section 5.6 shall Parent limit a party’s right to terminate this Agreement pursuant to Section 7.1(b) or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, 7.1(c) so long as such agreements are conditioned upon the Closing)) any actionparty has, concession or undertakingprior to such termination, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in complied with its obligations under this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date5.6.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) It is agreed that this Section 5.6 shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain not govern the timely expiration or termination obligations of the waiting period under parties with respect to obtaining the HSR ActFinancing, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions which obligations are set forth in accordance with the terms and conditions of this AgreementSection 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 of set forth in this Agreement, including each of the proviso to the first sentence of Section 6.9(d), the Company and Parent parties hereto shall (and shall cause their respective Subsidiaries to) each use their its reasonable best efforts to taketake promptly, or to cause to be taken, all actions actions, and to dodo promptly, or to cause to be done, and to assist and to cooperate with the other parties in doing doing, all things necessary, proper or advisable under Applicable Law applicable Laws to consummate and make effective the Merger and the other transactions contemplated hereby, including (i) obtain the obtaining of all necessary actionsactions or nonactions, waivers, registrationsconsents, permitsclearances, authorizationsapprovals, orders, consents and approvals from Governmental Authorities, the expiry expirations or early termination terminations of any applicable waiting periods, including the Company Approvals and make the Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Authorities, if any) and take the taking of all steps as may be reasonably necessary to obtain an approval approval, clearance, or waiver from, or to avoid an action or proceeding by, any Governmental AuthoritiesEntity, in order (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 Merger and the other transactions contemplated hereby and (iv) the execution and delivery of any additional instruments reasonably necessary to consummate the Transactions as promptly as practicable and transactions contemplated hereby; provided, however, that in no event shall Parent, Merger Sub, the Company or any event of its Subsidiaries be required to pay prior to the Outside Date and (ii) deliver Effective Time any fee, penalties or other consideration to any third party to obtain any consent or approval required notices or for the consummation of the Merger under any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside DateContract.
(b) In furtherance Subject to the terms and not in limitation of conditions herein provided and without limiting the undertakings pursuant to this Section 6.9foregoing, each of Parent and the Company and Parent shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any)promptly, and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten fifteen (1015) Business Days from after the date of this Agreement for the filing of the notification hereof, file any and report forms all Notification and related material Report Forms required under the HSR Act)Act with respect to the Merger and the other transactions contemplated hereby, (ii) provide or and use reasonable best efforts to cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of periods under the HSR Act, (ii) if required, promptly make an appropriate filing under the ECMR, and use reasonable best efforts to obtain a decision from the European Commission allowing the consummation of the Transactions by Merger and the DOJ or FTC or other applicable Governmental Authoritiestransactions contemplated hereby, including (iii) use reasonable best efforts to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (i) cooperate in all respects with each other in connection with (x) determining whether any filing filings are required to be made with, or submission with a 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 Authority Entities in connection with the Transactions execution and in connection with any investigation or other inquiry by or before a Governmental Authority relating to delivery of this Agreement and the Transactions, including any proceeding initiated by a private person, (ii) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any consummation of the Transactionstransactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, (iii) as promptly as practicablepermits, inform each other of any material communication (authorizations or any other material correspondence or memoranda) received fromapprovals, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) supply to any Governmental Entity as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them any additional information or their Subsidiaries documents that may be requested pursuant to any Regulatory Law or Affiliates, on the one handby such Governmental Entity, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting (v) use reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ best efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, 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 Merger and the other transactions contemplated hereby, including taking all such further action as may be necessary 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 Regulatory Law with respect to the Merger and all steps necessary the other transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person Entity with respect to the Merger so as to enable the parties hereto Closing to consummate the Transactions occur as promptly soon as practicable, reasonably possible (and in any event prior to no later than the Outside End Date), including including, without limitation (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, order or otherwise, the sale, divestiture, license divestiture or other disposition of such any assets or businesses of Parent or its Subsidiaries or Affiliates or of the Company or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date limits the freedom of Parent or its Subsidiaries’ (including the Surviving 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 Corporation’s) businesses, product lines or assets, properties or businesses or of the assets, properties or businesses to in each case as may be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable required in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order order in any Proceeding by a Governmental Authority suit or any other Person under Antitrust Laws that proceeding which would otherwise have the effect of preventing or the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither 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 the Company or any of its Affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Company only in the event that the Closing occurs.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, the Company and 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 the Company or Parent, 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. 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 the Company and 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) 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 the Company and 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 Transactions; provided that, notwithstanding Merger or any other transactions contemplated hereby. Notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, nothing in no event this Section 5.6 shall Parent limit a party’s right to terminate this Agreement pursuant to Section 7.1(b)(i) or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, ii) so long as such agreements are conditioned upon the Closing)) any actionparty has, concession or undertakingprior to such termination, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in complied with its obligations under this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date5.6.
(e) Neither Parent nor 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 Sub (nor any other Subsidiary of Parent) shall enter into any agreementand the transactions contemplated thereby, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination S▇▇▇▇▇▇ Act of 1890, the waiting period under 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 authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactionspurpose or effect of monopolization or restraint of trade or lessening competition through merger or acquisition, (ii) avoid any Law governing the entry of, the commencement direct or indirect ownership or control of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, operations or assets of the Company and its Subsidiaries or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance any Law with the terms and conditions purpose of this Agreementprotecting 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 of this Agreement, including each of the proviso to parties hereto shall cooperate with the first sentence of Section 6.9(d), the Company other parties and Parent shall use (and shall cause their respective Subsidiaries tocontrolled Affiliates to use) each use their reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to as promptly as reasonably practicable (i) take, or cause to be taken, all actions actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing doing, all things reasonably necessary, proper or advisable under Applicable Law to cause the conditions to Closing to be satisfied as promptly as reasonably practicable and to consummate and make effective, in the most expeditious manner reasonably practicable, the Transactions, including preparing and filing promptly and fully all documentation to effect all necessary, proper and advisable filings, notices, petitions, statements, registrations, declarations, submissions of information, applications, reports and other documents, (iii) obtain all necessary actionsapprovals, consents, registrations, waivers, registrations, permits, authorizations, ordersexemptions, consents clearances, orders and approvals other confirmations from Governmental Authorities, the expiry or early termination of any applicable waiting periods, and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental AuthoritiesAuthority or third party necessary, in order proper or advisable to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date Transactions, and (iiiii) execute and deliver required notices or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside DateTransactions.
(b) In furtherance and not in limitation of the undertakings pursuant foregoing, the Company and Parent shall each use (and shall cause their respective controlled Affiliates to use) reasonable best efforts to (i) take all action reasonably 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, take all action reasonably necessary to ensure that the Transactions may be consummated as promptly as practicable on the terms contemplated by this Section 6.9, each Agreement and otherwise lawfully minimize the effect of such Takeover Law on the Transactions.
(c) Parent and the Company shall jointly, and on an equal basis, (i) prepare control the timing and file strategy for obtaining any notification approvals, consents, registrations, waivers, permits, authorizations, exemptions, clearances, orders and report forms other confirmations from any Governmental Authority in connection with the Transactions and related material required under (ii) coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with any 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, any Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto.
(d) In furtherance and not in limitation of the foregoing, each of the parties hereto shall (i) make (and cause their respective controlled Affiliates to make) an appropriate filing of a Notification and Report Form pursuant to the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from following the date of this Agreement for (and in any event within ten Business Days following the filing of the notification and report forms and related material required under the HSR Actdate hereof), (ii) provide or supply (and shall cause their respective controlled Affiliates to be provided supply) as promptly as reasonably practicable any additional information and documentary material that may be requested by the DOJ or FTC under pursuant to the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as use their respective reasonable best efforts to promptly as practicabletake all steps reasonably necessary, take such actions as are necessary proper, or advisable to obtain prompt expiration all consents under any Antitrust Laws that may be required by any foreign or termination of any applicable waiting period U.S. federal, state or other approval of consummation of the Transactions by the DOJ or FTC or other applicable local Governmental AuthoritiesAuthority, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactionsin each case with competent jurisdiction, so as to enable the parties hereto to consummate the Transactions prior as promptly as practicable. Without limiting the foregoing, Parent shall use reasonable best efforts to promptly take (and shall cause its controlled Affiliates to take) all actions reasonably necessary to secure the expiration or termination of any applicable waiting period under the HSR Act or any other Antitrust Law and resolve any objections asserted with respect to the Outside Date.
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, restrict or delay the consummation of the Transactions. Parent shall use its reasonable best efforts to respond to and seek to resolve, in each case, as promptly as reasonably practicable, any objections asserted by any Governmental Authority with respect to the Transactions. From the date hereof until the first to occur of the Closing or the termination of this Agreement in accordance with its terms, each of the Company, Parent and Merger Sub shall not take (c) Subject to Applicable Law, and each of the Company and Parent and shall cause their respective counsel controlled Affiliates not to take) any action with the intention to, or that would reasonably be expected to, materially delay or prohibit the expiration or termination of any waiting period under the HSR Act. Neither Parent nor the Company shall commit (and shall cause their respective controlled Affiliates not to commit) to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other party (such consent not to be unreasonably withheld, delayed or conditioned).
(e) Notwithstanding anything to the contrary contained in this Agreement, each of the parties hereto shall use (and shall cause their respective controlled Affiliates to use) reasonable best efforts to (i) promptly cooperate in all respects with each other in connection with any filing reasonably necessary, proper or submission advisable submissions, consents, approvals, filings, petitions, statements, licenses, permits, authorizations, declarations, notifications, registrations, submissions of information, applications, reports, waivers, exemptions, clearances, orders, confirmations and other documents with a the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before a the FTC, the DOJ or any other Governmental Authority relating to the Transactions, including Transactions or any proceeding initiated by a private personPerson, (ii) have the right to review in advance, and to the extent practicable each shall consult keep the other on, parties hereto informed in all material respects and on a reasonably timely basis of any material filing made withwritten or verbal communication received by such party from, or written materials to be submitted given by such party to, the FTC, the DOJ or any other Governmental Authority in connection with (including by promptly sending the Transactions other parties a copy of all documents, information, correspondence or other communications) and of any material written or verbal communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, subject to applicable Laws and the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect Confidentiality Agreement relating to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects exchange of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advanceinformation, and to the extent practicable each will reasonably practicable, promptly consult with the other on, all the parties hereto with respect to information relating to the other party parties hereto and its their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or third Person or the FTC, the DOJ or any other Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (iiother than “4(c) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, documents” as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood used in the private equity industry) of Parent or any of its Affiliates (other than the Company rules and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period regulations under the HSR Act, (iv) to the extent permitted by the FTC, the DOJ or such other applicable Governmental Authority or other Person, promptly give the other parties hereto the opportunity to attend and participate in such meetings and conferences (whether in person, by telephone or otherwise), and (v) promptly obtain all consents, registrations, waivers, exemptions, approvals, confirmations, clearances, permits, certificates, orders, and authorizations necessary, proper or advisable to be obtained from, or renewed with, the FTC, the DOJ and any other Governmental Authority. Prior to submitting any document or any information relating to the Transactions or the authorizationsparties (whether formally or informally, consentsin draft form or final form) to the FTC, Orders and approvals required under the DOJ or any other applicable Antitrust LawGovernmental Authority, applicable a party shall provide the other parties with a reasonable opportunity to the Transactions, (ii) avoid the entry of, the commencement review and comment on such document or information reasonably in advance of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this Agreementsuch submission.
Appears in 2 contracts
Sources: Merger Agreement (Tabula Rasa HealthCare, Inc.), Merger Agreement (Tabula Rasa HealthCare, Inc.)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, Agreement (including the proviso to the first sentence of Section 6.9(d5.8(c)), each of the Company and Parent parties hereto shall (and shall cause their respective Subsidiaries to) each use their reasonable best efforts to (and shall cause each of their respective Affiliates to) take, or cause to be taken, all actions actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing doing, all things necessary, proper or advisable under Applicable Law 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 Agreement prior to the End Date, including (i) obtain the obtaining of all necessary actionsactions or nonactions, authorizations, permits, waivers, consents, clearances, approvals and expirations or terminations of waiting periods (collectively, “Consents”), including the Company Approvals and the Parent Approvals, from Governmental Entities and the making of all necessary registrations, permitsnotices, authorizationsnotifications, orderspetitions, consents applications, reports and approvals from Governmental Authorities, other filings and the expiry or early termination taking of any applicable waiting periods, and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary necessary, proper or advisable to obtain an approval approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental AuthoritiesEntity, in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver required notices the obtaining of all necessary Consents from third parties, (iii) the defending of any Actions, lawsuits or any necessary additional instruments toother legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and obtain required consentsthe other transactions contemplated by this Agreement, waivers or seeking to prohibit or delay the Closing and (iv) the execution and delivery of any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date.
(b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.9, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummate, and to fully carry out the purposes of the transactions contemplated by this Agreement; provided, that 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, in no event shall either the Company or Parent or any of their respective Subsidiaries be required to pay any fee, penalty or other consideration to any third party for any Consent required for or triggered by the consummation of the Transactionstransactions contemplated by this Agreement under any contract or agreement or otherwise.
(b) Without limiting the foregoing, as promptly as reasonably practicable but subject to the terms and conditions herein (including Section 5.8(c)), the Company, Parent and each Merger Sub shall (i) promptly, but in no event later than ten six (106) Business Days from months after the date of this Agreement for Agreement, file the Application with the STB (provided, however, that if the STB issues an order or otherwise implements a regulatory change that materially impedes the filing of the notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable LawApplication, the Company and Company, Parent and their respective counsel shall (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) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this Agreement.Merger
Appears in 2 contracts
Sources: Merger Agreement (Union Pacific Corp), Merger Agreement (Norfolk Southern Corp)
Efforts. (a) Subject to Each of the terms and conditions of this Agreement, including the proviso to the first sentence of Section 6.9(d), the Company and Parent parties shall (and shall cause their respective Subsidiaries to) each use their its reasonable best efforts to taketake promptly, or cause to be taken, all actions actions, and to dodo 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 Law to (i) obtain all necessary actions, waivers, registrations, permits, authorizations, orders, consents and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periods, and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver required notices or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date.
(b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.9, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation obtain all necessary actions or nonactions, waivers, consents, clearances, approvals, or expirations or terminations of waiting periods as may be required by any law or Governmental Entity.
(b) Parent and the TransactionsCompany shall promptly, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from after the date hereof, file (or cause to be filed) any and all required Notification and Report Forms under the HSR Act with respect to the Merger; Parent and the Company shall request early termination of this Agreement for the filing of the notification and report forms and related material required any applicable waiting period under the HSR Act), (ii) provide or and use their reasonable best efforts to cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation periods under the HSR Act, and shall supply to the Antitrust Division of the Transactions United States Department of Justice (“Antitrust Division”) or the United States Federal Trade Commission (“FTC”) as promptly as reasonably practicable any additional information or documents that may be requested pursuant to any Law or by the DOJ Antitrust Division or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside DateFTC.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (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) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings covenants of Parent pursuant to the parties contained in this Section 6.9(a) and Section 6.9(b)5.6, but subject to the proviso limitations set forth in Section 5.6(d), (i) each of the Parent and the Company shall use its reasonable best efforts to this sentenceavoid the entry of, or to have vacated or lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that would restrain, prevent or delay the Closing on or before the End Date and (ii) Parent shall take, or cause to be taken, any and all steps necessary use its reasonable best efforts to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto Closing to consummate the Transactions occur as promptly as practicable, possible (and in any event prior to no later than the Outside End Date), including including, in the case of Parent, proposing, negotiating, committing to and effecting, by consent decree, hold separate ordersorder, or otherwise, the sale, divestiture, license divestiture or other disposition of such businesses, product lines or assets of Parent or the Company and otherwise taking or committing to take actions that after the Closing would limit Parent’s freedom of action with respect to, or its and its Subsidiaries’ assetsability to operate and/or retain, properties one or businesses or more of the assetsbusinesses, properties product lines or businesses assets of Parent or the Company.
(d) Notwithstanding anything to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable the contrary in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement5.6, in no event shall the parties hereto understand and agree that neither Parent or nor any of its Subsidiaries shall be required to agree to (required, nor shall the Company or any Company of its Subsidiaries be permitted 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 take any other action (or otherwise agree to agree unless Parent so directs them 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 (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)ii) any action, concession otherwise take or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required commit to take (nor shall actions that after the Company or any Company Subsidiaries be permitted to take) any Closing would limit Parent’s freedom of action with respect to, or its ability to Parent operate any of the businesses, assets or any Affiliate properties of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent Company, the Surviving Corporation or any of its their respective Affiliates if the aggregate net effect of all such sales, divestitures, dispositions, actions or commitments referred to in clauses (other than i) and (ii) would be material to the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or taken as a whole (it being understood that if any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior such actions are proposed with respect to the Outside Dateassets or business of Parent, “material” shall be determined as if such assets or business were owned by the Company).
(e) Neither Parent nor Merger Sub (nor and the Company shall cooperate and consult with each other in connection with the making of all filings, notifications, communications, submissions, and any other Subsidiary material actions pursuant to this Section 5.6, and, subject to applicable legal limitations and the instructions of Parent) any Governmental Entity, Parent and the Company shall enter into any agreementkeep each other apprised on a current basis of the status of matters relating to the completion of the transactions contemplated thereby, transaction including promptly furnishing the other with copies of notices or other material communications received by Parent and the Company, as the case may be, or any agreement of their respective Subsidiaries or Affiliates, from any third party and/or any Governmental Entity with respect to effect such transactions. Subject to applicable Law relating to the exchange of information, Parent and 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 transaction (including proposed notifications or filings and any merger written communications or acquisition) submissions, and with respect to any such notification, filing, written communication or submission, any documents submitted therewith to any Governmental Entity; provided, however, that would reasonably materials may be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: redacted (i) obtain to remove references concerning the timely expiration or termination valuation of the waiting period under businesses of the HSR ActParent, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactionsproposals from third parties with respect thereto, (ii) avoid the entry ofas necessary to comply with contractual agreements, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or and (iii) obtain all other authorizationsas necessary to address reasonable privilege or confidentiality concerns. Parent and the Company agree not to participate in any substantive meeting or discussion, consentseither in person or by telephone, Orders and approvals of with any Governmental Authorities necessary for the consummation of the Transactions Entity in accordance connection with the terms 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 conditions of this Agreementparticipate.
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 of this Agreement, Agreement (including the proviso to the first sentence of Section 6.9(d7.03), each of Parent and the Company and Parent shall (and shall cause their respective Subsidiaries to) each use their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing doing, all things necessary, proper or advisable under Applicable applicable Law or Order to consummate and make effective the Transactions as promptly as reasonably practicable, including (i) obtain preparing and filing as promptly as reasonably practicable with any Governmental Authority or other Third Party all necessary actionsdocumentation to effect all necessary, waiversproper or advisable filings, notices, petitions, statements, registrations, submissions of information, applications and other documents and (ii) obtaining and maintaining all approvals, consents, registrations, permits, authorizationsauthorizations and other confirmations required to be obtained from any Governmental Authority or other Third Party that are necessary, orders, consents and approvals from Governmental Authorities, the expiry proper or early termination of any applicable waiting periods, advisable to consummate and make all necessary registrations effective the Transactions (whether or not such approvals, consents, registrations, permits, authorizations and filings (including filings with Governmental Authoritiesother confirmations are conditions to the consummation of the Merger pursuant to ARTICLE 8); provided, if any) and take all steps as may be reasonably necessary to obtain an approval however, that none of the Company, its Subsidiaries nor any of their respective Representatives shall provide notice to, or waiver request consent from, any Third Party with respect to this Agreement or to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the Transactions as promptly as practicable and in any event without the prior written consent of Parent (such consent not to the Outside Date and (ii) deliver required notices be unreasonably withheld or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Datedelayed).
(b) In furtherance furtherance, and not in limitation of the undertakings pursuant to this Section 6.9foregoing, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactionsmake, as promptly as reasonably practicable after the date of this Agreement (but and in no any event later than within fifteen (15) Business Days of the date of this Agreement in the case of the following clause (i) and within 30 days of the date of this Agreement in the case of the following clauses (ii), (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 from of CFIUS notification that the date draft filing meets all requirements of this Agreement for the filing 31 C.F.R. § 800.402 of the notification regulations and report forms 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 related material required under the HSR Act), (ii) provide or cause Company shall use reasonable best efforts to be provided supply as promptly as reasonably practicable any additional information and documentary material that may be reasonably requested by pursuant to the DOJ or FTC under foregoing, and use reasonable best efforts to take all other actions necessary to cause the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any (and not to extend) the applicable waiting period or other approval of consummation of periods regarding the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so foregoing as to enable the parties hereto to consummate the Transactions prior to the Outside Datesoon as reasonably practicable.
(c) Subject to Applicable LawExcept as prohibited by applicable Law or Order or by applicable Governmental Authority, each of Parent and the Company and Parent and their respective counsel shall use 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 personparty, (ii) have promptly inform the right to review other Party of (and if in advancewriting, and supply to the extent practicable each shall consult the other on, Party) any material filing made withcommunication (other than any ministerial communications) received by such Party from, or written materials to be submitted given by such Party to, the Federal Trade Commission, the Antitrust Division of the Department of Justice, CFIUS or any other Governmental Authority in connection with the Transactions and of any material communication received or given in connection with any proceeding by a private Personparty, in each case regarding any of the Transactions, (iii) as promptly as practicable, inform consult with each other of prior to taking any material communication (position in discussions with or filings to be submitted to any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and regarding any of the Transactions, (iv) as permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, presentations, memoranda, briefs, arguments, opinions, proposals and litigation to be submitted to any Governmental Authority regarding any of the Transactions, and (v) coordinate with the other in preparing and exchanging such information and promptly as practicable furnish each provide the other (and its counsel) with copies of all correspondencefilings, filings presentations or submissions (and written communications between them or their Subsidiaries or Affiliates, on the one hand, and a summary of any oral presentations) made by such Party with any Governmental Authority relating to this Agreement or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding anything to the foregoingcontrary herein, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects on behalf of the parties’ efforts with respect Parties, have control over and lead all communications and strategy, including all analyses, presentations, memoranda, briefs, arguments, opinions, proposals and litigation, relating to the HSR Act obtaining all approvals, consents, waivers, registrations, permits, authorizations and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or confirmations from any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to consummating the Transactions, (ii) promptly inform each other of any material communication (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 material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect privilege pursuant to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 7.01 in a manner so as “Antitrust Counsel Only Material.” Notwithstanding anything to preserve the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concernsapplicable 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 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 undertakings Transactions (including with respect to any of Parent pursuant 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) Subject to Section 6.9(a) and Section 6.9(b7.01(f), but subject Parent and the Company shall use reasonable best efforts to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps actions necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to Transactions. Without limiting the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or generality of the assetsforegoing, properties or businesses 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 acquired made and given by Parent such Party in connection with the Transactions; (ii) shall use reasonable best efforts to obtain each consent (if any) required to be obtained (pursuant heretoto any applicable Law or Contract, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding request by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing arbitrator (public or materially delaying the consummation of private), or otherwise) by such Party in connection with the Transactions; provided thatand (iii) shall use reasonable best efforts to lift or cause to be overturned any restraint, notwithstanding injunction or other legal bar to the foregoing provisions of Transactions.
(f) Notwithstanding anything to the contrary contained in this Section 6.9(d) 7.01 or any other provision of elsewhere in this Agreement, in no event neither Parent nor Merger Sub shall Parent have any obligation under this Agreement: (i) to commence or threaten to commence litigation; (ii) to agree to hold separate, divest, license or cause a third party to purchase (or cause any of its Subsidiaries be required to agree to hold separate, divest, license or cause a third party to purchase) any of its respective businesses, product lines or assets; or (nor shall the Company or any Company Subsidiaries be permitted iii) to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) to any action, concession condition or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything limitation contemplated in this Section 6.9 or elsewhere in this Agreement to the contrary7.01, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate ordersthat would, or otherwisewould reasonably be expected to, the sale, divestiture, license or other disposition, of the assets, properties or businesses of have a Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside DateMaterial Adverse Effect.
(eg) Neither In connection with obtaining the CFIUS Approval, and notwithstanding anything to the contrary in this Agreement, neither Parent nor Merger Sub (nor shall have any obligation to agree to any mitigation measure or condition requested by CFIUS or any other Subsidiary of Parent) shall enter into any agreement, transaction Governmental Authority where such measure or any agreement to effect any transaction (including any merger or acquisition) that would condition could reasonably be expected to prevent be materially adverse to the business or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination financial condition of the waiting period under Company or Parent or could reasonably be expected to materially reduce the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable benefits to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation Parent of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this AgreementMerger.
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, the Company (and its Subsidiaries) and Parent (and its Subsidiaries and Affiliates) shall cooperate with the other parties and use their respective reasonable best efforts to consummate and make effective the consummation of the Offer, the Merger and the other transactions contemplated by this Agreement as promptly as reasonably practicable after the date hereof, and in any event 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, or approvals from third parties; (iii) defending any Legal Proceedings, whether judicial or administrative, challenging this Agreement or challenging, hindering, impeding, interfering with or delaying the consummation of the Offer, the Merger and the other transactions contemplated by this 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) executing and delivering any additional instruments necessary to consummate the proviso transactions contemplated by this Agreement; provided, however, that in no event shall Parent, Merger Sub, the Company or any of their respective Subsidiaries be required to pay prior to the first sentence 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 Section 6.9(dthe transactions contemplated by this Agreement under any contract or agreement or otherwise (and without the prior written consent of Parent, none of the Company nor any Subsidiary of the Company shall pay or make or commit to pay or make any such payment).
(b) Subject to the terms and conditions in this Agreement and without limiting the foregoing, the Company (and its Subsidiaries) and Parent (and its Subsidiaries and Affiliates) shall (i) file, or cause to be filed, all required Notification and Report Forms pursuant to the HSR Act with respect to the Offer, the Merger and the other transactions contemplated by this Agreement within ten (10) Business Days after the date hereof and file, or cause to be filed, any filing (or draft thereof) required under any other applicable Antitrust Law or Foreign Investment Law, if any, as promptly as practicable after the date hereof, (ii) supply or cause to be supplied, as promptly as practicable any additional information or documentary material that may be requested pursuant to the HSR Act or any other applicable Antitrust Law or Foreign Investment Law and (iii) use its reasonable best efforts to 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, if any, as promptly as practicable after the date hereof, and 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 (and at the request of Parent, the Company and Parent shall (and shall cause their respective its Subsidiaries toshall) each use their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing all things necessary, proper or advisable under Applicable Law to (i) obtain all necessary actions, waivers, registrations, permits, authorizations, orders, consents and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periods, and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, resolve such objections any Governmental Authorities, in order to consummate the Transactions as promptly as practicable and in Entity may assert under any event prior to the Outside Date and (ii) deliver required notices Antitrust Law or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date.
(b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.9, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws Foreign Investment Law with respect to the Transactions (if any)Offer, the Merger and the other transactions contemplated by this Agreement, and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (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) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law or Foreign Investment Law that may be asserted by any Governmental Authority or any Entity with respect to the Offer, the Merger and the other Person transactions contemplated by this Agreement so as to enable the parties hereto Closing to consummate the Transactions occur as promptly as practicable, practicable after the date hereof (and in any event prior to no later than the Outside End Date), including (x) proposing, negotiating, committing to, effecting, agreeing to and effectingexecuting, by consent decree, hold separate orderssettlement, undertaking, stipulations or otherwise, the sale, divestiture, license transfer, license, hold separate or disposition of any and all of the share capital or other disposition equity voting interests, assets (whether tangible or intangible), businesses, divisions, operations, products or product lines of such 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 agreeing to any undertakings that would limit Parent’s (including its Subsidiaries’ and Affiliates’, including the Surviving Corporation’s) freedom of action with respect to or their ability to retain, or impose obligations on Parent’s (including its Subsidiaries’ and Affiliates’, including 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 Corporation) or the Company (and its Subsidiaries’ assets), properties in each case so as to satisfy the conditions to Closing or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order order in any Legal Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially the Closing, delaying the consummation Closing or delaying the Closing beyond the End Date (each such action in the foregoing clauses (x), (y) and (z), a “Remedy Action”). Anything in this Agreement to the contrary notwithstanding, (i) none of the Transactions; provided Parent, Merger Sub or any Subsidiary or Affiliate of Parent shall be required to (A) take or consent or agree to any Remedy Action (or other action pursuant to this Section 5.6(c)) with respect to any of Parent’s or its Subsidiaries’ or Affiliates’ assets (whether tangible or intangible), businesses, divisions, operations, products, or product lines that, notwithstanding individually or in the foregoing provisions of aggregate, generated (or contributed to the generation of) greater than $25,000,000 in revenue during the 2023 fiscal year or (B) take or consent or agree to any action pursuant to Section 5.6(a) or this Section 6.9(d5.6(c) that, individually or any other provision in the aggregate, would reasonably be expected to result in a material adverse effect on the Company and its Subsidiaries (taken as a whole); (ii) none of this AgreementParent, in no event shall Parent Merger Sub, or the Company, nor any of its their respective Subsidiaries or Affiliates shall be required to agree to (nor shall or effectuate any Remedy Action unless the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking effectiveness thereof is conditioned on the Closing. Notwithstanding anything in this Section 6.9 ; and (iii) without Parent’s prior written consent, the Company shall not (and shall not permit any Subsidiary of the Company to) take, commit or elsewhere in this Agreement agree to any Remedy Action.
(d) Subject to the contraryother terms and conditions of this Agreement, Parent shall not be required to take (nor shall each of the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries) and Parent (and its Subsidiaries and Affiliates) shall use its reasonable best efforts 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 Offer, the Merger and the other transactions contemplated by this Agreement and in connection with any investigation or other inquiry by or before a Governmental Entity or any other Person relating to the Offer, the Merger and the other transactions contemplated by this Agreement, (ii) keep the other parties hereto promptly informed of any communication received by such party from any Governmental Entity and of any communication received in connection with any proceeding by any other Person, in each case regarding the Offer, the Merger and the other transactions contemplated by this Agreement (and in the case of written communications, furnish the other parties with a copy of such communication), including proposing(iii) permit the other parties to review and discuss in advance, negotiatingand consider in good faith the views of the other parties in connection with, committing any proposed filing, submission or other communication to any Governmental Entity or other Person regarding the Offer, the Merger and effectingthe other transactions contemplated by this Agreement, and (iv) to the extent not prohibited by consent decreethe applicable Governmental Entity or other Person, hold separate orders, give the other parties hereto the opportunity to attend and participate in any meetings (whether in-person or otherwise), the sale, divestiture, license telephone or video calls or other dispositionconferences, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, regarding the Offer, the Merger and the other than transactions contemplated by this Agreement. Notwithstanding the foregoing, 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 5.6(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).
(e) Subject to the other terms and conditions of this Agreement, if any Legal Proceeding (administrative or judicial), decree, judgment, injunction or other order, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging, hindering, impeding, interfering with or delaying any transaction contemplated by this Agreement as violating any Antitrust Law or Foreign Investment Law, each of the Company (and its Subsidiaries). In addition, ) and Parent (and its Subsidiaries and Affiliates) shall defend through litigation on the merits cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and resist any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or such Legal Proceeding and to have vacated vacated, lifted, reversed or terminatedoverturned any decree, any Order (judgment, injunction or other order, whether temporary, preliminary or permanent) , that would prevent is in effect and that prohibits, prevents or restricts consummation of the Closing occurring prior to Offer, the Outside DateMerger and the other transactions contemplated by this Agreement.
(ef) Neither The Company (and its Subsidiaries) and Parent nor (and its Subsidiaries and Affiliates) shall jointly develop 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 as soon as practicably possible, (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 Offer, the Merger Sub and the other transactions contemplated by this Agreement and (nor iii) strategy for the defense and settlement of any Legal Proceeding brought by or before any Governmental Entity that has authority to enforce the applicable Antitrust Laws or Foreign Investment Laws. 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 Subsidiary of Parent) shall Antitrust Law or Foreign Investment Law or enter into any agreementcommitment to or agreement with any Governmental Entity to delay, transaction or otherwise not to consummate as promptly as practicable, the Offer, the Merger or the other transactions contemplated by this Agreement except with the prior written consent of the other party.
(g) Parent shall not, and shall cause its Subsidiaries and Affiliates not to, acquire or agree to acquire, by merging with or into or consolidating with, or by purchasing all or substantially all of the assets of or equity in, or by any other manner, any Person, business or any corporation, partnership, association or other business organization or division of any business or any corporation, partnership, association or other business organization, if the entering into of a definitive agreement to effect any transaction (including any relating to, or the consummation of such acquisition, merger or acquisition) that consolidation would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain impose any material delay in the timely obtaining of, or materially increase the risk of not obtaining, any consents of any Governmental Entity necessary to consummate the Offer, the Merger or the other transactions contemplated by this Agreement or the expiration or termination of the any applicable waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, period; (ii) avoid materially increase the entry of, the commencement risk of litigation any Governmental Entity seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other entering an Order that would prevent or materially delay prohibiting the consummation of the TransactionsOffer, the Merger or the other transactions contemplated by this Agreement; (iii) obtain all other authorizations, consents, Orders and approvals materially increase the risk of Governmental Authorities necessary for not being able to remove any such Order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the Transactions in accordance with Offer, the terms and conditions of Merger or the other transactions contemplated by this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (Stryker Corp), Merger Agreement (Inari Medical, Inc.)
Efforts. (a) Subject to the terms and conditions of this Agreement, including the proviso to the first sentence of Section 6.9(d), the Company and Parent shall (shall, and shall cause their respective Subsidiaries Affiliates to) , cooperate with each other and use their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing all things necessary, proper or advisable under Applicable Law to consummate the Merger and the other transactions contemplated by this Agreement as promptly as practicable, including (i) obtain obtaining all necessary actionsconsents, waiversapprovals or waivers from Third Parties, registrations, permits, authorizations, orders, consents (ii) preparing and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periods, and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the Transactions 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 any event prior each case, to the Outside Date 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 action, suit or proceeding challenging this Agreement or the transactions contemplated hereby and (iiv) deliver required notices or any necessary additional instruments to, executing and obtain required consents, waivers or delivering any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Datetransactions contemplated hereby.
(b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.9foregoing, each of Parent and the Company shall, and shall cause their respective Affiliates to, make (i) prepare an appropriate filing of a Notification and file any notification and report forms and related material required under Report Form pursuant to the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but and in no any event later than ten (10) within 5 Business Days from after the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Acthereof), (ii) provide or cause each other appropriate filing required pursuant to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under Foreign Antitrust Law (collectively with the HSR Act or by other Governmental Authorities under applicable Act, the “Antitrust Laws (if any) and (iiiLaws”) as promptly as practicablepracticable (and in any event within 15 Business Days after the date hereof), take such actions as are necessary or advisable to obtain prompt expiration or termination of (iii) comply at the earliest practicable date with any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to request under any of the TransactionsAntitrust Laws for additional information, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Lawdocuments, the Company and Parent and or other materials received by each of them or any of their respective counsel shall Subsidiaries or Affiliates from any Governmental Authority in respect of such filings or such transactions and (iiv) cooperate in all respects 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 submission with a Governmental Authority changes suggested in connection with the Transactions therewith), and in connection with resolving any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, (ii) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, of any Governmental Authority in connection with the Transactions and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding under any of the Transactions, (iii) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to any such filing or any such transaction. Each such party shall use its reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any Applicable Law in connection with the Transactionstransactions contemplated by this Agreement. Each such party shall as promptly as practicable inform the other parties hereto of any oral communication with, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination provide copies of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made written communications with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with regarding any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (such filings or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactionssuch transaction. The parties No party hereto shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to independently participate in any material discussion or formal meeting with any Governmental Authority in respect of any filingsuch filings, investigation 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 Applicable 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 TransactionsAntitrust Laws. The Company and Parent Any party may, as each it deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other parties under this Section 6.9 8.01 as “Antitrust Counsel Only Material.” Notwithstanding anything outside counsel only”. Such materials and the information contained therein shall be given only to the contrary in this Section 6.9, materials provided to the other party or its outside legal counsel may be redacted to remove references concerning the valuation of the Acquired Companies recipient and as necessary will not be disclosed by such outside counsel to address employees, officers, or directors of the recipient, unless express written permission is obtained in advance from the source of the materials. 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 or confidentiality concernspursuant to this section so as to preserve any applicable privilege.
(dc) In furtherance of the undertakings of The Company and Parent pursuant shall, and shall cause their respective Affiliates to, cooperate with each other and use their reasonable best efforts to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, all actions and use reasonable best efforts to do, or cause to be done, all things necessary, proper or advisable under Applicable Law to consummate the Merger and the other transactions contemplated by this Agreement as promptly as practicable, including (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 entry of an order or decree or file appropriate applications with the Federal Trade Commission, the Department of Justice, or any attorney general of any state of the United States in connection with any of the foregoing) (each a “Divestiture Action”). In the event Parent agrees to effect a Divestiture Action, the Company and all steps necessary its Subsidiaries shall, upon request by Parent, consent and/or agree as needed in order to avoid effectuate a Divestiture Action to the extent such action relates to the Company or eliminate each its Subsidiaries or its or their businesses or assets. Further Parent and every impediment 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 interest in any Person that derives revenues from products, services or 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 impediments under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate consummation of the Transactions 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 event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws proceeding that would otherwise have the effect of preventing or materially delaying the make consummation of the Transactions; provided that, notwithstanding transactions contemplated hereby in accordance with the foregoing provisions terms of this Section 6.9(d) Agreement unlawful or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreementrestrain, transaction enjoin or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would otherwise prevent or materially delay the consummation of the Transactionstransactions contemplated by this Agreement, Parent shall use its reasonable best efforts to vacate, modify or (iii) obtain all other authorizationssuspend 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, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance a manner consistent with the terms and conditions 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 extent permitted by Applicable Law and Governmental Authority, (i) without causing undue delay or materially impeding Parent’s ability to satisfy its obligations in this Section 8.01(c), consult with the Company in advance of any meeting, teleconference 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, (ii) afford the Company an opportunity to review any written advocacy materials to be submitted to such Governmental Authority in advance of the submission thereof, and (iii) furnish the Company with copies of all written materials received by or on behalf of such party from such Governmental Authority, in each case to the extent permitted by Applicable Law. The Company shall not, without Parent’s prior written consent or request, communicate, offer, negotiate, or agree or bind itself or Parent, with any Governmental Authority or other third party regarding any Divestiture Action. Notwithstanding anything to the contrary in this Agreement, however, neither the Company nor any of its Subsidiaries shall 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 commit to any Divestiture Action unless (A) the parties are informed by the Federal Trade Commission, the Department of Justice, or 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 so demanded and required by a Governmental Authority would be deemed to result 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 (a) the reasonably anticipated benefits to Parent of the transactions contemplated by this Agreement, (b) the business of the Parent and its Subsidiaries, taken as a whole, or (c) the business of the Company and its Subsidiaries, provided, further that in no event shall Parent be required to license any of the Intellectual Property of Parent, the Company or any of their Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Veeco Instruments Inc), Merger Agreement (Ultratech Inc)
Efforts. (a) Subject Without prejudice to the terms and conditions hereof (including the remainder of this AgreementSection 3.1) and the other Transaction Documents, including the proviso to the first sentence of Section 6.9(d), the Company and Parent each party shall (and shall cause their respective Subsidiaries to) each use their its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing all things necessary, proper proper, or advisable desirable under Applicable Law to (i) obtain all necessary actions, waivers, registrations, permits, authorizations, orders, consents carry out the provisions hereof and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periods, thereof and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the Transactions as promptly as practicable and in any event prior give effect to the Outside Date transactions contemplated hereby and (ii) deliver required notices or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date.
(b) thereby. In furtherance and not in limitation of the undertakings pursuant to this Section 6.9foregoing, each of Parent and the Company parties shall (i) prepare subject to the provisions of this Section 3.1, including Section 3.1(d), use its commercially reasonable efforts to obtain as promptly as reasonably practicable and file advisable (as determined in good faith by Amazon after consultation with the Company in accordance with the first sentence of Section 3.1(d)) all exemptions, authorizations, consents, or approvals from, and to make all filings with and to give all notices to, all third parties, including any notification Governmental Entities, required in connection with the transactions contemplated by this Agreement and report forms the other Transaction Documents (including as may be required upon one or more exercises of Warrant Shares, and related material required under the HSR Act and any other applicable whether such approvals arise from Antitrust Laws with respect to the Transactions (if anyor otherwise, or one or more sales of Warrant Shares), and any additional filings or notifications and related material that are necessarywhich, proper or advisable to permit consummation for the avoidance of the Transactionsdoubt, shall include providing, as promptly as reasonably practicable and advisable, such information to any Governmental Entity as such Governmental Entity may request in connection therewith, and (ii) cooperate fully with the other party in promptly seeking to obtain all such exemptions, authorizations, consents, or approvals and to make all such filings and give such notices.
(b) Without limiting the generality of the foregoing, as promptly as practicable after written notice from Amazon (but in the case of the HSR Act, no event later than ten (10) Business Days from after such written notice), and in any event no later than in accordance with established regulatory time frames, the date of this Agreement for the filing of the notification parties shall (i) file any Notification and report forms and related material Report Forms required or advisable under the HSR Act), Act with the Federal Trade Commission and the United States Department of Justice and (ii) provide file, make or cause give, as applicable, all other filings, requests, or notices required or advisable under any other Antitrust Laws, in each case with respect to be provided the issuance of the Warrant Shares (the “Initial Filing Transaction”) (the filings, requests and notices described in the foregoing clauses (i) and (ii), collectively, the “Initial Antitrust Filings”). In addition, following the receipt of the Initial Antitrust Clearance, to the extent required or advisable by Applicable Law (including, for the avoidance of doubt, any Antitrust Law) in connection with any further issuance of Warrant Shares (in each case, whether in full or in part), the parties shall file, make, or give, as applicable, as promptly as reasonably practicable and advisable (as determined in good faith by Amazon after consultation with the Company in accordance with the first sentence of Section 3.1(d)), any further filings, requests, or notices required under any Antitrust Laws, including the HSR Act. Without limiting the generality of the foregoing, each party shall supply as promptly as reasonably practicable to the appropriate Governmental Entities, and in any event no later than in accordance with established regulatory time frames, any information and documentary material that may be requested by the DOJ or FTC required under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (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) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision For purposes of this Agreement, in no event shall Parent or the term “Initial Antitrust Clearance” as of any of its Subsidiaries be required time means (x) prior to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwisetime, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR ActAct and the receipt of all exemptions, or the authorizations, consents, Orders or approvals, the making of all filings and approvals the giving of all notices, and the expiration of all waiting periods, subject to any other Antitrust Laws, in each case to the extent required with respect to the Initial Filing Transaction, and (y) the absence at such time of any Applicable Law or Order issued by any court of competent jurisdiction or other legal restraint or prohibition under any other applicable Antitrust Law, applicable to in each case that has the Transactions, (ii) avoid the entry of, the commencement effect of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay preventing the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals any issuances of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this AgreementWarrant Shares.
Appears in 2 contracts
Sources: Transaction Agreement (Flex Ltd.), Transaction Agreement (Applied Optoelectronics, Inc.)
Efforts. (ai) Subject Each of Capital One, Synovus, Parent and Seller shall (and Capital One, Synovus, Parent and Seller shall cause each of their respective Affiliates to) use its reasonable best efforts to consummate the 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 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 terms and conditions Merger Agreement to terminate the Merger Agreement in accordance with its terms). Without limiting the generality of this Agreementthe foregoing, including the proviso to the first sentence of Section 6.9(d), the Company and Parent Synovus shall (and shall cause its Affiliates to) and each of Capital One, Parent and the Seller shall (and shall cause each of their respective Subsidiaries Affiliates to) each use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing all things necessary, proper or advisable under Applicable Law to (i) obtain all necessary actions, waivers, registrations, permits, authorizations, orders, consents and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periods, and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver required notices or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date.
(b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.9, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (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) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (ivA) as promptly as practicable furnish each other with copies 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 all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one handSynovus, 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 its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver persons necessary or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry advisable in connection with the Transactionsconsummation 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 Affiliates is a party challenging or affecting this Agreement or the consummation of the transactions contemplated by this Agreement, including those described on Schedule 5.1(a)(i), 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 (E) seek to resolve any objection or assertion by any Governmental Authority challenging this Agreement or the transactions contemplated hereby other than, in the case of Synovus, in respect of a Synovus Required Approval. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Agreement, Synovus may withdraw any registration or filing made pursuant to this Section 6.95.1(a)(i) if, materials after submission thereof, the relevant Governmental Authority to which such registration or filing has been submitted (1) 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) Synovus provides to Seller and Capital One an affidavit signed by an executive officer of Synovus setting forth the other party or its counsel may be redacted to remove references concerning the valuation content of the Acquired Companies applicable communication with the relevant Governmental Authority, if such communication was oral, or a copy of such communication if it was written, and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns(y) Synovus consults with Capital One and Parent before such withdrawal.
(dii) In furtherance of the undertakings of Parent pursuant obligations set forth in Section 5.1(a)(i), (A) subject to Section 6.9(a) and Section 6.9(b5.1(a)(v), but subject Synovus shall promptly take (and shall cause each of its Affiliates to the proviso to this sentence, Parent shall take, or cause to be taken, ) any and all steps actions necessary or advisable to obtain all Synovus Required Approvals and to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person to the consummation of the transactions contemplated hereby in connection with obtaining the Synovus Required Approvals, in each case so as to enable the parties hereto to consummate the Transactions as promptly as practicabletransactions contemplated by this Agreement, and in any event prior (B) the Seller shall make, subject to the Outside Datecondition that the transactions contemplated hereby or thereby actually occur, any undertakings (including proposing, negotiating, committing undertakings to and effecting, by consent decree, hold separate orders, accept operational restrictions or otherwise, the sale, divestiture, license limitations or to make sales or other disposition of dispositions, provided that such of its and its Subsidiaries’ assetsrestrictions, properties limitations, sales or businesses or other dispositions are conditioned upon the consummation of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, transactions contemplated hereby) as are necessary requested by Synovus and are required to obtain such Synovus Required Approvals or advisable in order to avoid the entry of, and the 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 Proceeding by a Governmental Authority or any other Person under Antitrust Laws orders that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of transactions contemplated by this Agreement, in no event shall Parent or any . None of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they parties hereto shall, if Parent so directsdirectly or indirectly, agree tothrough one or more of their respective Affiliates, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) case of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each caseSeller, other than exercising any right under the Company and Merger Agreement to terminate the Merger Agreement in accordance with its Subsidiariesterms). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially cause a material delay Parent’s or Merger Sub’s ability to: (i) obtain in the timely expiration or termination satisfaction of the waiting period under the HSR Act, conditions contained in Article VI or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactionstransactions contemplated hereby or, or (iii) obtain all other authorizationsin the case of Parent and Seller, consents, Orders and approvals of Governmental Authorities necessary for by the consummation of the Transactions in accordance with the terms and conditions of this 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 provisions of this Agreement, including each of the proviso to the first sentence of Section 6.9(d), the Company and Parent parties hereto shall (and shall cause their respective Subsidiaries to) each use their its commercially reasonable best efforts to taketake promptly, or to cause to be taken, all actions actions, and to dodo promptly, or to cause to be done, and to assist and to cooperate with the other parties in doing doing, all things necessary, proper or advisable under Applicable Law applicable Laws to consummate and make effective the Transactions, including (i) obtain the obtaining of all necessary actionsactions or nonactions, waivers, registrationsconsents, permitsclearances, authorizations, orders, consents approvals and approvals from Governmental Authorities, the expiry expirations or early termination terminations of any applicable waiting periods, including the Company Approvals and make the Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Authorities, if any) and take the taking of all steps as may be reasonably necessary to obtain an approval approval, clearance, or waiver from, or to avoid an action or proceeding by, any Governmental AuthoritiesEntity; (ii) the obtaining of all necessary consents, in order 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 Merger and the other transactions contemplated hereby; and (iv) the execution and delivery of any additional instruments reasonably necessary to consummate the Transactions as promptly as practicable and transactions contemplated hereby; provided, however, that in any no event shall the Company be required to pay prior to the Outside Date and (ii) deliver Effective Time any fee, penalties or other consideration to any third party to obtain any consent or approval required notices or for the consummation of the Merger under any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside DateContract.
(b) In furtherance and not in limitation Subject to the provisions of the undertakings pursuant to this Section 6.9Agreement, each of Parent and the Company and Parent shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any)promptly, and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from 10 days after the date of this Agreement for the filing of the notification hereof, file any and report forms all Notification and related material Report Forms required under the H▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the “HSR Act)”) with respect to the Transactions, (ii) provide or and use commercially reasonable efforts to cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of periods under the HSR Act; (ii) if required, promptly make an appropriate filing under the European Community Merger Regulation, and use commercially reasonable efforts to obtain a decision from the European Commission allowing the consummation of the Transactions by Merger and the DOJ or FTC or other applicable Governmental Authorities, including transactions contemplated hereby; (iii) use commercially reasonable efforts to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (i) cooperate in all respects with each other in connection with (A) determining whether any filing filings are required to be made with, or submission with a 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 Authority Entities in connection with the Transactions execution and in connection with any investigation or other inquiry by or before a Governmental Authority relating to delivery of this Agreement and the Transactions, including any proceeding initiated by a private person, (ii) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any consummation of the Transactionstransactions contemplated hereby and (B) timely making all such filings and timely obtaining all such consents, (iii) as promptly as practicablepermits, inform each other of any material communication (authorizations or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and approvals; (iv) use commercially reasonable efforts to supply to any Governmental Entity as promptly as practicable furnish each other with copies of all correspondence, filings any additional information or documents that may be requested pursuant to any Regulatory Law or by such Governmental Entity; and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting (v) use commercially reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any all other actions and do, or cause to be done, all steps other things necessary, proper or advisable to consummate and make effective the Merger and the other transactions contemplated hereby, including taking all such further action as may be necessary to avoid 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 eliminate each and every impediment under competition authorities of any Antitrust Law that may be asserted by any Governmental Authority other nation or other jurisdiction or any other Person so person may assert under Regulatory Law with respect to the Merger and the other transactions contemplated hereby.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, the Company and Parent shall keep each other reasonably 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 material or significant notices or other material or significant communications received by the Company or Parent, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to enable such transactions. 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 material communication to any Governmental Entity. Each of the Company and Parent agrees not to participate in any significant 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) Subject to and in furtherance and not in limitation of the covenants of the parties hereto to consummate the Transactions as promptly as practicablecontained in this Section 5.7, and in if any event prior to the Outside Dateadministrative or judicial action or proceeding, including proposingany proceeding by a private party, negotiating, committing to and effecting, by consent decree, hold separate orders, is instituted (or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses threatened to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid instituted) challenging the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority Merger or any other Person under Antitrust Laws transaction contemplated by this Agreement as violative of any Regulatory Law, each of the Company and Parent shall cooperate in all respects with each other and shall use their respective commercially reasonable 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 would otherwise have the is in effect of preventing and that prohibits, prevents or materially delaying the restricts consummation of the Transactions; provided that, notwithstanding Merger or any other transactions contemplated hereby. Notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, nothing in no event this Section 5.7 shall Parent or any of its Subsidiaries be required limit a party’s right to agree terminate this Agreement pursuant to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree toArticle VII, so long as such agreements are conditioned upon the Closing)) any actionparty has, concession or undertakingprior to such termination, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in complied with its obligations under this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date5.7.
(e) Neither Parent nor Merger Sub (nor Notwithstanding the foregoing or any other Subsidiary provision of this Agreement, the Company shall not, without Parent) shall enter into ’s prior written consent, commit to any agreement, divestiture transaction or agree to any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: restriction on its business, and nothing in this Section 5.7 shall (i) obtain require Parent to offer, accept or agree to (A) dispose or hold separate any part of its or the timely expiration Company’s businesses, operations, assets or termination product lines (or a combination of Parent’s and the Company’s respective businesses, operations, assets or product lines), (B) not compete in any geographic area or line of business, and/or (C) restrict the manner in which, or whether, Parent, the Company, the Surviving Corporation or any of their Affiliates may carry on business in any part of the waiting period under world, unless Parent determines, in its sole reasonable judgment, that such action would not have more than a de minimis adverse impact on the HSR Act, strategic and other benefits expected to be achieved from the Merger and would not have more than a de minimis adverse impact on Parent or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this AgreementCompany.
Appears in 2 contracts
Sources: Merger Agreement (Altra Holdings, Inc.), Merger Agreement (Tb Woods Corp)
Efforts. (a) Subject to the terms and conditions of this Agreement, including each of the proviso to parties hereto shall cooperate with the first sentence of Section 6.9(d), the Company other parties and Parent shall use (and shall cause their respective Subsidiaries toto use) each use their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly (i) take, or cause to be taken, all actions actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing doing, all things necessary, proper or advisable under Applicable Law to cause the conditions to Closing to be satisfied as promptly as reasonably practicable and to consummate and make effective, in the most expeditious manner reasonably practicable, the Transactions, including preparing and filing promptly and fully all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents, (ii) obtain all approvals, consents, registrations, waivers, permits, authorizations, orders and other confirmations from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions, (iii) execute and deliver any additional instruments necessary to consummate the 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) obtain all necessary actionsthrough (iv), waiversother than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other documents, approvals, consents, registrations, permits, authorizationsauthorizations and other confirmations relating to Antitrust Laws, orderswhich are dealt with in Sections 5.03(c) and (d) below. For purposes hereof, consents and approvals from Governmental Authorities“Antitrust Laws” means the ▇▇▇▇▇▇▇ Act, the expiry ▇▇▇▇▇▇▇ 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 early termination intended to prohibit, restrict or regulate actions having the purpose or effect of any applicable waiting periods, and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary to obtain an approval monopolization or waiver from, restraint of trade or to avoid an action lessening of competition through merger or proceeding by, any Governmental Authorities, in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver required notices or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Dateacquisition.
(b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.9foregoing, each of Parent and the Company and Parent shall each use its reasonable best efforts to (i) prepare take all action necessary to ensure that no Takeover Law is or becomes applicable to any of the Transactions and file refrain from taking any notification actions that would cause the applicability of such Laws and report forms (ii) if the restrictions of any Takeover Law become applicable to any of the Transactions, take all action necessary to ensure that the Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement and related material required under 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 and any other applicable Antitrust Laws with respect to the Transactions (if any), and which shall request the early termination of any additional filings or notifications and related material that are necessary, proper or advisable waiting period applicable to permit consummation of the Transactions, Transactions under the HSR Act) as promptly as reasonably practicable (but in no event later than ten (10) Business Days from following the date of this Agreement for Agreement, and in any event within 10 days following the filing date of the notification this Agreement, and report forms and related material required under the HSR Act), (ii) provide or cause to be provided supply as promptly as reasonably practicable any additional information and documentary material that may be requested by the DOJ or FTC under pursuant to the HSR Act and to promptly take any and all steps necessary to avoid or by other Governmental Authorities eliminate each and every impediment and obtain all consents under applicable any Antitrust Laws (if any) and (iii) as promptly as practicablethat may be required by any foreign or U.S. federal, take such actions as are necessary state or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable local Governmental AuthoritiesAuthority, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactionsin each case with competent jurisdiction, so as to enable the parties hereto to consummate the Transactions. Without limiting the foregoing, Parent shall promptly take all actions necessary to secure the expiration or termination of any applicable waiting period under the HSR Act or any other Antitrust Law 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, restrict or delay the consummation of the Transactions, 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 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 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 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, 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 entry of, or to have vacated or terminated, any Restraint that would prevent the Closing prior to the Outside Date. All such efforts shall be unconditional and shall not be qualified in any manner and no actions taken 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. The Company, Parent and Merger Sub and any of their respective Affiliates shall not take any action with the intention to, or that could reasonably be expected to, hinder or delay the expiration or termination of any waiting period under the HSR Act or the obtaining of approval of the DOJ or FTC as necessary. 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.
(cd) Subject Each of the parties hereto shall use its reasonable best efforts to Applicable Law, the Company and Parent and their respective counsel shall (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) have the right to review in advance, and to the extent practicable each shall consult keep the other on, parties hereto informed in all material respects and on a reasonably timely basis of any material filing made withcommunication received by such party from, or written materials to be submitted given by such party to, the FTC, the DOJ or any other Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other subject to applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect Laws relating to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects exchange of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advanceinformation, and to the extent practicable each will reasonably practicable, consult with the other on, all the parties hereto with respect to information relating to the other party parties hereto and its their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or third Person or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (iiother than “4(c) promptly inform each other of any material communication (documents” or any other material correspondence or memoranda“4(d) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, documents” as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood used in the private equity industry) of Parent or any of its Affiliates (other than the Company rules and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ or the authorizations, consents, Orders and approvals required under any such other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order Governmental Authority or other Order that would prevent or materially delay Person, give the consummation of other parties hereto the Transactions, or (iii) obtain all other authorizations, consents, Orders opportunity to attend and approvals of Governmental Authorities necessary for the consummation of the Transactions participate in accordance with the terms such meetings and conditions of this Agreementconferences.
Appears in 2 contracts
Sources: Merger Agreement (Fresh Market, Inc.), Merger Agreement (Fresh Market, Inc.)
Efforts. (a) Subject to Each of the terms and conditions of this Agreement, including the proviso to the first sentence of Section 6.9(d), the Company and Parent parties shall (and shall cause their respective Subsidiaries to) each use their reasonable best efforts to promptly take, or cause to be taken, all actions actions, and to do, or cause to be done, and to assist and cooperate with the other parties party in doing doing, all things necessary, proper or advisable under Applicable Law this Agreement and applicable Laws to (i) obtain all necessary actionsconsummate and make effective, waivers, registrations, permits, authorizations, orders, consents and approvals from Governmental Authoritiesas soon as reasonably possible, the expiry or early termination of any applicable waiting periodsAcquisition, the Purchaser Share Issuance and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver required notices or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Dateother transactions contemplated hereby.
(b) In furtherance connection with and not in limitation without limiting the generality of the undertakings pursuant to this Section 6.9, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any5.01(a), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (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) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent Purchaser shall take, or and Purchaser and Seller shall use reasonable best efforts to cause the Company to be takentake, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust antitrust, competition, foreign investment or trade regulation Law that may be asserted by any Governmental Authority or any other Person Entity so as to enable the parties hereto to consummate close the Transactions Acquisition, the Purchaser Share Issuance and the other transactions contemplated hereby as promptly as practicable, and in any event prior to the Outside Date. Notwithstanding the foregoing, including proposing, negotiating, committing to and effecting, by consent decree, hold separate ordersnothing in this Section 5.01(b) shall require, or otherwisebe construed to require, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent Purchaser or any of its Subsidiaries be required affiliates to agree to (nor shall i) sell, hold, divest, discontinue or limit, before or after the Company Closing Date, any assets, businesses or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate interests of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent Purchaser or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each caseaffiliates, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits in any claim asserted in court by immaterial respect; (ii) any Governmental Authority or any other person under Antitrust Laws in order to avoid entry ofconditions relating to, or to have vacated changes or terminatedrestrictions in, the operations of any Order such assets, businesses, or interests which, in the case of sub-clauses (whether temporaryi) and (ii) of this Section 5.01(b), preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would could reasonably be expected to prevent result in a Purchaser Material Adverse Effect or materially delay Parent’s and adversely impact the economic or Merger Sub’s ability to: (i) obtain the timely expiration business benefits to Purchaser or termination any of its affiliates of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, transactions contemplated by this Agreement; or (iii) obtain all other authorizations, consents, Orders and approvals any material modification or waiver of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this Agreement. Purchaser shall, as promptly as practicable (but in no event later than 30 business days after the date of this Agreement), 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 communications with the CCI, including on the progress of the CCI filing, as soon as reasonably practicable. Purchaser shall, and Purchaser and Seller shall use reasonable best efforts to cause the 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 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 Company to, (A) promptly notify the other party of any communication received from, or given by such party or any of its affiliates to, any Governmental Entity or Person relating to the matters that are the subject of this Agreement, (B) permit the other party to review in advance any proposed communication by such party (and its advisors) to any Governmental Entity, (C) deliver complete and accurate copies to the other party of all filings, submissions, correspondence and other written communications (and memoranda setting forth the substance thereof) between it and its affiliates and their respective representatives, on the one hand, and any Governmental Entity or members of any Governmental Entity’s staff, on the other hand, with respect to this Agreement and the transactions contemplated hereby, subject to redaction of competitively sensitive information, valuation material or information subject to attorney-client privilege, and consider in good faith the views of the other party in connection with such communications, (D) unless such party has consulted with the other party, not participate in or attend any meeting, or engage in any substantive conversation with, any Governmental Entity in respect of the transactions 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 the 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.
(d) Notwithstanding anything to the contrary in the foregoing, Purchaser and 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 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 views of Seller.
Appears in 2 contracts
Sources: Share Purchase Agreement (Ctrip Com International LTD), Share Purchase Agreement (Naspers LTD)
Efforts. (a) Subject to the terms Parent, Guarantor, Merger Sub and conditions of this Agreement, including the proviso to the first sentence of Section 6.9(d), the Company and Parent shall (shall, and shall cause their respective Subsidiaries Affiliates to) each , use their respective reasonable best efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing all things necessary, proper or advisable under Applicable Law to (i) obtain all necessary actions, waivers, registrations, permits, authorizations, orders, consents and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periods, Laws to consummate and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, in order to consummate effective the Transactions as promptly as practicable practicable, including (i) preparing and in filing all forms, registrations and notifications to or with any event prior Governmental Authority required to be filed to consummate the Outside Date and Transactions, (ii) deliver required notices or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order using reasonable best efforts to consummate satisfy the Transactions as promptly as practicable and in any event prior conditions to the Outside Date.
(b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.9, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of consummating the Transactions, as promptly as reasonably practicable (but iii) using reasonable best efforts to obtain (and to cooperate with each other in no event later than ten obtaining) any consent, authorization, expiration or termination of a waiting period, permit, Order or approval of, waiver or any exemption by, any Governmental Authority (10) Business Days from the date of this Agreement for the filing of the notification including furnishing all information and report forms and related documentary material required under the HSR Act), (ii) provide or cause required to be provided as promptly as reasonably practicable any information and documentary material that may be requested obtained or made by (x) Parent, Guarantor, Merger Sub, or their respective Affiliates or (y) the DOJ Company or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (i) cooperate in all respects with each other in connection with any filing or submission with a Governmental Authority its Subsidiaries in connection with the Transactions or the taking of any action contemplated by this Agreement, and (iv) at Parent’s sole option, defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Transactions.
(b) ▇▇▇▇▇▇, Guarantor and the Company shall each keep the other apprised of the status of matters relating to the completion of the Transactions and work cooperatively in connection with obtaining all required consents, authorizations, Orders or approvals of, or any investigation exemptions by, any Governmental Authority undertaken pursuant to the provisions of this Section 6.6. In that regard, prior to the Closing, each party shall promptly consult with the other parties to this Agreement with respect to and provide any necessary information and assistance as the other parties may reasonably request with respect to (and, in the case of correspondence, provide the other parties (or other inquiry their counsel) with copies of) all notices, submissions or filings made by or before a on behalf of such party or any of its Affiliates with any Governmental Authority relating or any other information supplied by or on behalf of such party or any of its Affiliates to, or correspondence with, any Person in connection with this Agreement, the Lease Consents and the Transactions. Each party to this Agreement shall promptly inform the other parties to this Agreement, and if in writing, furnish the other parties with copies of (or, in the case of oral communications, advise the other parties orally of) any communication from or to any Governmental Authority regarding the Transactions, including any proceeding initiated by a private person, (ii) have and permit the right other parties to review and discuss in advance, and to consider in good faith the extent practicable each shall consult views of the other onparties in connection with, any material filing made with, proposed communication or written materials to be submitted to, submission with any such Governmental Authority. No party or any of its Affiliates shall participate in any meeting or teleconference with any Governmental Authority in connection with this Agreement and the Transactions and of any material communication received or given in connection unless it consults with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other handparties in advance and, with respect to the Transactionsextent not prohibited by such Governmental Authority, gives the other parties the opportunity to attend and participate thereat. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 6.6(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 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 contained in this Section 6.96.6, materials provided pursuant to the other party or its counsel this Section 6.6 may be redacted (i) to remove references concerning the valuation of the Acquired Companies Company and the Transactions, (ii) as necessary to comply with contractual arrangements and (iii) as necessary to address reasonable attorney-client privilege concerns.
(c) The Company, Parent and Guarantor shall make or file (or cause to be made or filed), as promptly as practicable, with the appropriate Governmental Authority all filings, forms, registrations and notifications required to be filed to consummate the Merger under any applicable Competition Law, and subsequent to such filings, the Company, Parent and Guarantor shall, and shall cause their respective Affiliates to, as promptly as practicable, respond to inquiries from Governmental Authorities, or provide any supplemental information that may be requested by Governmental Authorities, in connection with filings made with such Governmental Authorities. The Company, Parent and Guarantor shall file (or cause to be filed) their notification and report forms under the HSR Act no later than twenty (20) Business Days after the date of this Agreement. Parent, Guarantor Merger Sub and the Company may not (i) commit to or agree with any Governmental Authorities to voluntarily stay, toll or extend any applicable HSR Act waiting period or review period, (ii) enter into any timing agreement with any Governmental Authorities, or (iii) pull and refile any filing under the HSR Act without the other privilege parties’ prior written consent. Notwithstanding anything in this Agreement to the contrary, Parent will control the ultimate strategy and timing for securing approvals and expiration of relevant waiting periods under the Competition Laws, taking into account in good faith any comments of the Company or confidentiality concernsits Representatives relating to such strategy.
(d) In furtherance of connection with the undertakings of Parent pursuant to efforts referenced in Section 6.9(a6.6(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person (c) so as to enable permit the parties hereto Closing to consummate the Transactions occur as promptly as practicable, practicable and in any event prior to before the Outside Termination Date, including proposingParent, negotiatingGuarantor, committing Merger Sub and the Company shall, and shall cause their respective Affiliates to (subject to it being conditioned on the consummation of the Transactions), propose, negotiate, commit to, effect and effectingagree to, by consent decree, hold separate ordersorder, or otherwise, the sale, divestiture, license license, holding separate or other disposition of or restriction on, but solely on, the Non-Burdensome Condition Assets. If requested by ▇▇▇▇▇▇, the Company will agree to any action contemplated by this Section 6.6; provided, that any such of its and its Subsidiaries’ assets, properties agreement or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying action is conditioned on the consummation of the Transactions; provided that, notwithstanding . Without limiting the foregoing provisions of this Section 6.9(d) or any other provision of this Agreementforegoing, in no event shall Parent or will the Company (and the Company will not permit any of its Subsidiaries be required to Affiliates to) propose, negotiate, effect or agree to any such actions without the prior written consent of Parent (nor shall not to be unreasonably withheld, conditioned or delayed).
(e) In furtherance and not in limitation of the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon covenants of the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything parties contained in this Section 6.9 6.6, if any administrative or elsewhere in judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging the Transactions or any other transaction contemplated by this Agreement as in violation of any Competition Law, at Parent’s sole option, each of the Company, Guarantor and Parent shall use 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 Transactions.
(f) Notwithstanding anything herein to the contrary, Parent shall not be required bear the cost of any filing fee payable to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any a Governmental Authority or in connection with any other person filings made under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Datethis Section 6.6.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this Agreement.
Appears in 2 contracts
Sources: Merger Agreement (SpartanNash Co), Merger Agreement (SpartanNash Co)
Efforts. (a) Subject to Each of the terms Company, Parent and conditions of this Agreement, including the proviso to the first sentence of Section 6.9(d), the Company and Parent Merger Sub shall (and shall cause their use its respective Subsidiaries to) each use their reasonable best efforts to (i) take, or cause to be taken, all actions appropriate action and to do, or cause to be done, and to assist and cooperate with the other parties in doing doing, all things necessary, proper or advisable under Applicable Law or otherwise to (i) obtain all necessary actions, waivers, registrations, permits, authorizations, orders, consents and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periods, consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as practicable, (ii) take all necessary registrations and filings such actions (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary required to obtain an approval or waiver from, or cause the expiration of the notice periods under Competition Laws with respect to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the Transactions such transactions as promptly as practicable after the execution of this Agreement, (iii) obtain (A) from any Governmental Entity any consents, licenses, permits, waivers, approvals, authorizations or orders required to be obtained by Parent, Merger Sub or the Company, or any of their respective Subsidiaries, to effect the Closing as promptly as practicable, and in any event prior to the Outside Date and not later than three (ii3) deliver required notices or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event Business Days prior to the Outside Date, and to avoid any action or proceeding by any Governmental Entity or any other Person, in connection with the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, including the Merger, and (B) from any Third Party any consents or notices that are required to be obtained or made by Parent, Merger Sub or the Company, 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, which determination has been made for each item set forth on Section 5.5(a) of the Company Disclosure Letter, (iv) cause the satisfaction of all conditions within its control 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 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 Party or any Governmental Entity to consummate the Merger 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 and the Merger required under any other applicable Law; provided, however, that in no event shall anything in this Section 5.5(a) require, or be construed to require, the Company, Parent, Merger Sub or any of their respective affiliates, or permit the Company, Parent, Merger Sub or any of their respective affiliates, to (A) undertake any efforts, or to take or consent to any action, if such efforts, action or consent, individually or in the aggregate, would result in a Company Material Adverse Effect, (B) take any actions, including the actions described in this Section 5.5(a), with respect to Parent, its affiliates or their respective assets, categories of assets, businesses, relationships, contractual rights, obligations or arrangements in connection with obtaining approvals from any Governmental Entity or (C) take or agree to take any action with respect to its business or operations in connection with obtaining approvals from any Governmental Entity unless (in the case of this clause (C)) the effectiveness of such agreement is conditioned upon the occurrence of the Closing. No party to this Agreement shall consent to any delay of the Closing at the behest of any Governmental Entity without the consent of the other parties to this Agreement. 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 delay beyond the Outside Date or prevent the consummation of the Merger on the terms of this Agreement.
(b) In furtherance and not Without limiting the generality of anything contained in limitation this Section 5.5, each party hereto shall (i) give the other parties prompt notice of the undertakings pursuant 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 Section 6.9Agreement, each (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 shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (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) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems reasonably and in good ▇▇▇▇▇ ▇▇▇▇▇ advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 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 and consider in good faith the views of the other parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with the Merger or any of 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 5.14, in connection with or related to the Merger 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, following consultation with the Company and acting in this Section 6.9good faith, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation direct and control all aspects of the Acquired Companies and as necessary parties’ efforts to address reasonable attorney-client gain regulatory clearance either before any Governmental Entity or other privilege or confidentiality concernsin any action brought to enjoin the transactions contemplated hereby pursuant to any Competition Law.
(dc) In furtherance Nothing contained in this Agreement shall give Parent or Merger Sub, directly or indirectly, the right to control or direct the operations of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event Company prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided thatMerger. Prior to the Effective Time, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted shall exercise, subject to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this Agreement, control over its business operations.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (William Lyon Homes), Merger Agreement (Taylor Morrison Home Corp)
Efforts. (a) Subject to the terms and conditions of this Agreement, including the proviso to the first sentence of Section 6.9(d), the Company and Parent shall (and shall cause their respective Subsidiaries to) each party will use their its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing all things necessary, proper or advisable under Applicable Law applicable laws and regulations to consummate the Merger and the other transactions contemplated by this Agreement as soon as practicable after the date hereof, including, without limitation, (i) 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 applications, notices, petitions, filings, and other documents and to obtain as promptly as practicable all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits, and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate the Merger or any of the other transactions contemplated by this Agreement (including the financing thereof) and (ii) taking all steps as may be necessary to obtain all necessary actionssuch waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, ordersorders and approvals; provided, consents however, that efforts in connection with the Financing and approvals from Governmental Authoritiesthe Required Indebtedness, other than notices and applications with State Regulators required in connection with the expiry or early termination of any applicable waiting periodsFinancing and the Required Indebtedness, shall be governed by Section 7.11 and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver required notices or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date.
(b) not this Section 7.3. In furtherance and not in limitation of the undertakings foregoing, each party hereto agrees (A) to make an appropriate filing of a Notification and Report Form pursuant to this Section 6.9, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, transactions contemplated hereby as promptly as reasonably practicable (but practicable, and in no any event later than ten (10) Business Days from within 40 calendar days after the date execution of this Agreement for the filing of the notification Agreement, and report forms and related material required under the HSR Act), (ii) provide or cause to be provided supply as promptly as reasonably practicable any additional information and documentary material that may be requested by pursuant to the DOJ HSR Act and to take all other actions necessary to cause the expiration or FTC termination of the 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 by other Governmental Authorities agreement termination proposals with the Team Telecom Agencies and DSS, (E) to file in a timely manner all notifications and filings required under any foreign antitrust laws, including, if applicable Antitrust Laws (if any) and (iii) the EUMR, as promptly as practicable, take such actions (F) to file, as are necessary promptly as practicable, all appropriate filings, notices, applications, agreement termination proposals, or similar notifications or documents required or advisable in order to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation such approvals of the Transactions by Team Telecom Agencies, DSS, and any 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 DOJ or FTC or other applicable Governmental AuthoritiesCompany, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside DateCFIUS.
(cb) Subject Each of Parent and the Company shall, in connection with the efforts referenced in Section 7.3(a) to Applicable Lawobtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits, and authorizations for the transactions contemplated by this Agreement under the HSR Act, the Company and Parent and their respective counsel shall Communications Act, the Cable Landing License Act, or any other Regulatory Law (as defined below), (i) cooperate in all respects and consult with each other in connection with any communication, 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 Transactionsinquiry, including any proceeding initiated by a private personparty, 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) have the right to review in advance, and to the extent practicable each shall consult promptly inform the other onparty 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 material filing made withother Governmental Entity or, or written materials to be submitted to, any Governmental Authority in connection with any proceeding by a private party, with any other person, including by promptly providing copies to the Transactions other party of any such written communications, and of any material communication received or given in connection with any proceeding by a private Personparty, in each case regarding any of the Transactionstransactions contemplated by this Agreement, and (iii) as promptly as practicablepermit the other party to review any communication it gives to, inform and consult with each other in advance of any material communication (or any other material correspondence or memoranda) received frommeeting substantive telephone call, or given toconference with the DOJ, the DOJ FTC, FCC, or such other Governmental Entity or other person, and to the FTC extent permitted by the DOJ, the FTC, the FCC, or any other applicable Governmental Authority 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 (ivD) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one handnecessary to address reasonable privilege concerns, and any Governmental Authority or its respective staff, on the other hand, to remove personal and confidential information provided in connection with respect to the TransactionsCFIUS and/or FOCI review. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material to be provided to the other under this Section 6.9 7.3(b) as “Antitrust Counsel Only Material.” Notwithstanding anything Such materials and the information contained therein shall be given only to the contrary in this Section 6.9, materials provided to the other party or its outside counsel may be redacted to remove references concerning the valuation of the Acquired Companies recipient and as necessary will not be disclosed by such outside counsel to address reasonable attorney-client employees, officers or other privilege or confidentiality concerns.
(d) In furtherance directors of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree recipient unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking express permission is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this Agreement.obtained in
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Centurylink, Inc)
Efforts. (a) Subject to Upon the terms and conditions of this Agreement, including the proviso subject to the first sentence of conditions set forth in this Agreement (including Section 6.9(d5.5(b)), each of the Company and Parent shall (and shall cause their respective Subsidiaries to) each parties agrees to use their its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other parties party in doing doing, all things that are necessary, proper or advisable under Applicable Law this Agreement and applicable Laws to consummate and make effective the 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 actionsin 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), (ii) obtain all required actions or nonactions, waivers, registrationsconsents, permitsapprovals, authorizations, orders, consents orders and approvals authorizations from Governmental AuthoritiesEntities, the expiry or early termination of any applicable waiting periods, and make all necessary registrations registrations, declarations and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding any Action by, any Governmental AuthoritiesEntity, in order to consummate including filings under the Transactions as promptly as practicable HSR Act with the United States Federal Trade Commission and in any event prior the Antitrust Division of the United States Department of Justice within the time periods specified thereunder (or, if such time period is not specified, within a reasonable time, except that with respect to the Outside Date making of the appropriate filing of a Notification and Report Form pursuant to the HSR Act, the parties shall make such filing within 10 Business Days of the date hereof, unless otherwise agreed to by the parties), (iii) resist, contest or defend any Action (including administrative or judicial Actions) challenging the Merger or the completion of the transactions contemplated hereby, including seeking 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 could restrict, prevent or prohibit consummation of the transactions contemplated hereby, including by pursuing avenues of administrative and judicial appeal, and (iiiv) execute and deliver required notices or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable transactions contemplated hereby and in any event prior fully to carry out the Outside Date.
(b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.9, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date purposes of this Agreement for without the filing prior written consent of the notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination party. Each of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto shall furnish to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (i) cooperate in all respects with each other in connection with any filing or submission with a Governmental Authority party such necessary information and reasonable assistance as such other party may reasonably request in connection with the Transactions and in connection with any investigation or other inquiry by or before a Governmental Authority foregoing. Subject to applicable Law relating to the Transactionsexchange of information, including any proceeding initiated by a private person, (ii) Parent and Company shall have the right to review in advance, and to the extent practicable practicable, each shall consult with the other on, any material filing made in connection with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions and all 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective SubsidiariesParent or Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party third party and/or any Governmental Authority 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 inquiryGovernmental Entity, investigation or proceeding with respect Company and Parent shall keep each other reasonably apprised of the status of matters relating to the Transactionscompletion of the transactions contemplated hereby, (ii) including promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, furnishing the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and notices or other written communications between them received by Company or Parent, as the case may be, or any of their Subsidiaryrespective Subsidiaries, on the one hand, and from any Governmental Authority or its respective staff, on the other hand, Entity and/or third party with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting)such transactions, and shall and, to the extent practicable (under the circumstances, shall consult with respect to any telephonic discussion or meeting)the other party in advance of, and provide the other party and its counsel with advance notice of and the opportunity to attend and participate in in, any material discussion or meeting with any Governmental Authority Entity in respect of any filing, investigation or other inquiry in connection with the Transactionstransactions contemplated hereby at which substantive matters are to be discussed. The 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 mayin connection with obtaining any such actions, as each deems advisable and necessaryconsents, reasonably designate approvals or waivers; provided that Parent will in good faith consider any competitively sensitive material views or input provided by Company with respect to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concernssuch matters.
(db) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicableshall, and in any event prior shall cause its Subsidiaries to, propose, negotiate, offer to the Outside Datecommit and effect (and if such offer is accepted, including proposing, negotiating, committing commit to and effectingeffect), by consent decree, hold separate ordersorder, or otherwiseother agreement, the sale, divestiture, license divestiture or other disposition of such assets or businesses of Parent or any of its and 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 businesses 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 assetsforegoing, properties a “Divestiture Action”). Notwithstanding the foregoing or businesses anything contained in this Agreement that may be to the contrary, (1) neither Parent nor Company shall be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order required to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, take any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws Divestiture Action that would otherwise have the effect of preventing or materially delaying the is not conditioned upon consummation of the Transactions; provided thatMerger, notwithstanding (2) Company shall not agree to take any Divestiture Action without the foregoing provisions consent of this Section 6.9(dParent, (3) or any other provision none of this Agreement, in no event shall Parent or any of its Subsidiaries shall be required to agree take or accept (or commit to (nor shall the Company take or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)accept) any action, concession condition, restriction, obligation or undertakingrequirement (each of the foregoing, unless such for the purposes of this Section, an “action”) in order to obtain any approval, concession exemption or undertaking is conditioned on the Closing. Notwithstanding anything in other authorization of a Governmental Entity involving any business or asset of Parent or its Subsidiaries that would otherwise be required by this Section 6.9 5.5 unless there is no action (including a Divestiture Action) that would permit such approval, exemption or elsewhere 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 this Agreement Parent’s sole discretion, to the contrary, agree and (4) Parent shall not be required to take (nor shall the Company pursuant to this Section 5.5 or any Company Subsidiaries be permitted to takeother provision of this Agreement) any action with respect (including a Divestiture Action) to Parent the extent such action (including a Divestiture Action), individually or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industryaggregate 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 Affiliates Subsidiaries effectively to acquire, hold or exercise full rights of ownership (other than 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), including proposingarising from or relating to the Merger and the other transactions contemplated by this Agreement, negotiating, committing (iii) an impact that is adverse in a material manner to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties business, results of operation or businesses financial condition of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, assuming for purposes of this determination that Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior and its Subsidiaries are of equivalent size to the Outside Date.
Surviving Corporation and its Subsidiaries, taken as a whole or (eiv) Neither Parent nor Merger Sub (nor any other Subsidiary an impact that is adverse in a material manner to the assets, business, results of Parent) shall enter into any agreement, transaction operation or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination financial condition of the waiting period under the HSR ActSurviving Corporation and its Subsidiaries, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this Agreementtaken as a whole).
Appears in 2 contracts
Sources: Merger Agreement (PSS World Medical Inc), Merger Agreement (McKesson Corp)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, including the proviso to the first sentence of Section 6.9(d), the Company and Parent Parties shall use (and shall cause their respective Subsidiaries toAffiliates to use) each use their respective reasonable best efforts to promptly take, or cause to be taken, all actions actions, and to promptly do, or cause to be done, and to assist and cooperate with the other parties Parties in doing doing, all things reasonably necessary, proper or advisable under Applicable Law applicable Laws to cause the conditions to Closing set forth in Article 6 to be satisfied and to consummate and make effective the Transactions and the other transactions contemplated by this Agreement as promptly as practicable after the date of this Agreement and in any event prior to the End Date, including (i) obtain the obtaining of all necessary actionsactions or nonactions, authorizations, permits, waivers, consents, clearances, approvals and expirations or terminations of waiting periods (collectively, “Consents”), including the Company Approvals and the Parent Approvals, from Governmental Entities and the making of all other necessary registrations, permitsnotices, authorizationsnotifications, orderspetitions, consents applications, reports and approvals from Governmental Authorities, other filings and the expiry or early termination taking of any applicable waiting periods, and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary necessary, proper or advisable to obtain an approval approval, clearance or waiver from, or to avoid an action or proceeding by, any Action by any Governmental AuthoritiesEntity, (ii) the obtaining of all necessary Consents from third parties (that are not Governmental Entities) and (iii) the execution and delivery of any additional instruments necessary, proper or advisable to consummate, and to fully carry out the purposes of the transactions contemplated by this Agreement, including the Transactions; provided that in order no event shall either the Company or Parent or any of their respective Subsidiaries be required to consummate the Transactions as promptly as practicable and in any event pay, prior to the Outside Date and First Parent Merger Effective Time any fee, penalty or other consideration to any third party (iiother than filing or administrative fees paid to a Governmental Entity) deliver for any Consent required notices for or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate triggered by the consummation of the Transactions as promptly as practicable and in any event prior to the Outside Dateother transactions contemplated by this Agreement or otherwise.
(b) In furtherance Subject to the terms and not conditions set forth in limitation this Agreement and without limiting the provisions of Section 5.7(a), the undertakings pursuant to this Section 6.9, each of Parent and the Company Parties shall (i) prepare and file (A) an appropriate filing of a Notification and Report Form pursuant to the HSR Act, as promptly as practicable after the date of this Agreement and (B) all other initial filings, notices, and reports (or where applicable, drafts thereof) with respect to the Consents from Governmental Entities, including the Consents from any notification Governmental Entity under the Antitrust Laws of the jurisdictions set forth on Section 6.3(f) of the Company Disclosure Schedules, in each case as promptly as practicable (and, in the case of the 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 report forms file such filings as promptly as practicable after taking into account the delays caused by (i) and related material required (ii), and, in each case, request early termination of the statutory waiting period under the HSR Act Act, and any other to the extent applicable, under the applicable Antitrust Laws with respect to the Transactions all other Consents from Governmental Entities, (if any), and any additional filings or notifications and related material 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 permit consummate and make effective the transactions contemplated hereby, including 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 (such consent not to be unreasonably withheld, conditioned or delayed). 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 any 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) 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 consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Act), (ii) provide propose, effect or cause agree to be provided as promptly as reasonably practicable any information the disposition of the businesses, assets and documentary material that may be requested by equity or other business interests of the DOJ Company, Parent or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and their respective Subsidiaries, (iii) as promptly as practicablecreate, amend, terminate, divest or assign, or otherwise secure substitute parties for relationships, ventures or contractual rights and obligations of the Company, Parent or their respective Subsidiaries or (iv) take such actions as are necessary or advisable commit to obtain prompt expiration take any action that would restrict Parent’s, the Company’s or termination any of their respective Subsidiaries’ freedom of action, including with respect to, or that would effect changes to the conduct of business of, any applicable waiting period businesses, assets, and equity or other approval business interests, relationships, ventures or contractual rights and obligations of the Company, Parent or their respective Subsidiaries; provided, 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 such action is conditioned upon the consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(cd) Subject to Applicable Law, the Company The Parties shall cooperate and Parent and their respective counsel shall (i) cooperate in all respects consult with each other in connection with the making of all registrations, filings, notifications, communications, submissions and any filing or submission with a Governmental Authority in connection with other actions pursuant to this Section 5.7(d), and, subject to applicable legal limitations and 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) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, instructions of any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given toEntity, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or AffiliatesCompany Parties, on the one hand, and any Governmental Authority or its respective staffParent and each Parent Merger Sub, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects shall keep each other apprised of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination status of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information matters relating to the completion of the Transactions and the other party transactions contemplated thereby, including promptly informing and its respective Subsidiariesfurnishing the other with copies of notices or other communications received or given by the Company or Parent, as the case may be, that appears in or any filing made withof their respective Subsidiaries, from or written materials (including correspondence) submitted to, to any Third Party third party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding Entity with respect to such transactions. In addition to the Transactionsobligations contemplated by Section 5.3 and Section 5.5, (ii) promptly inform each other and subject to applicable Law relating to the exchange of any material communication (or any other material correspondence or memoranda) received from, or given toinformation, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their SubsidiaryCompany Parties, on the one hand, and any Governmental Authority or its respective staffParent and each Parent Merger Sub, on the other hand, with respect shall permit counsel for the other Party reasonable opportunity to review in advance, and consider in good faith the Transactions. The parties shall (views of the other Parties in connection with, any proposed notifications or filings and any written communications or submissions, and with respect to any in-person discussion such notification, filing, written communication or meeting)submission, and shall to the extent practicable (with respect any documents submitted therewith to any telephonic discussion or meeting), provide Governmental Entity (except that is requested by any Governmental Entity to remain confidential from the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filingParties); provided, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, that materials provided to the other party or its counsel may be redacted (i) to remove references concerning the valuation of the Acquired Companies 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 attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of . The Parties shall take their respective reasonable efforts to share information protected from disclosure under the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b)attorney-client privilege, but subject to the proviso to this sentencework product doctrine, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority joint defense privilege or any other Person privilege pursuant to this Section 5.7(d) in a manner so as to enable preserve the parties hereto applicable privilege. Each of the Parties agrees not to consummate the Transactions as promptly as practicable, and initiate or agree to participate in any event prior meeting or discussion, either in person or by telephone or videoconference, with any Governmental Entity in connection with the proposed transactions unless it consults with the other Parties in advance and, to the Outside Dateextent not prohibited by such Governmental Entity, including proposing, negotiating, committing gives the other Parties the opportunity to attend and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Dateparticipate.
(e) Subject to the obligations in this Section 5.7(e), Parent and the Company shall reasonably cooperate with respect to devising and implementing the strategy and timing for obtaining any Consents required under any applicable Law in connection with the 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 Merger Sub (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 Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain transactions contemplated by this Agreement without the timely expiration or termination prior written consent of the waiting period under other Party hereto. Notwithstanding the HSR Actforegoing, in the event of any dispute between the Parties relating to the strategy or the authorizations, consents, Orders and approvals appropriate course of action or content of any submission or communication in connection with obtaining any Consents required under any other applicable Antitrust Law, applicable Law with respect to the Transactions, (ii) avoid Transactions and the entry ofother transactions contemplated by this Agreement, the commencement of litigation seeking Parties shall escalate such dispute to the entry of, general counsels (or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation most senior legal personnel) of the TransactionsCompany and Parent for resolution. If such dispute is not resolved pursuant to the preceding sentence, or (iii) obtain all other authorizationsParent shall have the right, consentsin its sole discretion, Orders and approvals of Governmental Authorities necessary for to make the consummation of the Transactions in accordance final determination with the terms and conditions of this Agreementrespect 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 of set forth in this Agreement, including each of the proviso to the first sentence of Section 6.9(d), the Company and Parent parties hereto shall (and shall cause their respective Subsidiaries to) each use their its commercially reasonable best efforts to take, or to cause to be taken, all actions actions, to file, or cause to be filed, all documents and to do, or to cause to be done, and to assist and to cooperate with the other parties in doing doing, all things necessary, proper or advisable under Applicable Law to consummate and make effective, as promptly as practicable, the Offer and Merger and the other transactions contemplated hereby, including (i) obtain the obtaining of all necessary actionsactions or nonactions, waivers, registrationsconsents, permitsclearances, authorizationsapprovals, orders, consents and approvals from Governmental Authorities, the expiry expirations or early termination terminations of any applicable waiting periods, including the Company Approvals and make the Parent Approvals, from Governmental Authorities and the making of all necessary registrations and filings (including filings with Governmental Authorities, if any) and take the taking of all steps as may be reasonably necessary to obtain an approval approval, clearance, or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, in order (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 Offer, the Top-Up Option or the Merger and the other transactions contemplated hereby and (v) the execution and delivery of any additional instruments reasonably necessary to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver required notices or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date.
(b) transactions contemplated hereby. In furtherance and not in limitation of the undertakings pursuant to this Section 6.9foregoing, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any)may, and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, shall the Company and Parent and their respective counsel shall (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) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring pay prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor Effective Time any fee, penalties or other Subsidiary consideration to any third party to obtain any consent or approval required for the consummation of Parent) the Offer, the Top-Up Option or the Merger. No party hereto shall enter into take any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) action that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain impede the timely expiration receipt of any necessary actions or termination of the waiting period under the HSR Actnonactions, or the authorizationswaivers, consents, Orders clearances, approvals, and approvals required under any other applicable Antitrust Lawexpirations or terminations of waiting periods, applicable to including the TransactionsCompany Approvals and the Parent Approvals, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of from Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this AgreementAuthorities.
Appears in 2 contracts
Sources: Merger Agreement (Dune Energy Inc), Merger Agreement (Eos Petro, Inc.)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, including each of the proviso to the first sentence of Section 6.9(d), the Company and Parent parties hereto shall (and shall cause each of their respective Subsidiaries Affiliates to) each use their reasonable best efforts to promptly take, or cause to be taken, all actions actions, and to promptly do, or cause to be done, and to assist and cooperate with the other parties in doing doing, all things necessary, proper or advisable under Applicable Law 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 Agreement as promptly as practicable after the date of this Agreement and in any event prior to the End Date, including (i) obtain the obtaining of all necessary actionsactions or nonactions, authorizations, permits, waivers, consents, clearances, approvals and expirations or terminations of waiting periods (collectively, “Consents”), including the Company Approvals and the Parent Approvals, from Governmental Entities and the making of all necessary registrations, permitsnotices, authorizationsnotifications, orderspetitions, consents applications, reports and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periods, and make all necessary registrations other and filings (including filings with Governmental Authorities, if any) and take the taking of all steps as may be reasonably necessary necessary, proper or advisable to obtain an approval approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental AuthoritiesEntity, in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver required notices the obtaining of all necessary Consents from third parties, (iii) the defending of any Actions, lawsuits or any necessary additional instruments toother legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and obtain required consentsthe other transactions contemplated by this Agreement (including the Voting Trust), waivers or seeking to prohibit or delay the Closing and (iv) the execution and delivery of any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date.
(b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.9, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummate, and to fully carry out the purposes of the transactions contemplated by this Agreement; provided, that in no event shall either the Company or Parent or any of their respective Subsidiaries be required to pay prior to the First Effective Time any fee, penalty or other consideration to any third party for any Consent required for or triggered by the consummation of the Transactionstransactions contemplated by this Agreement under any contract or agreement or otherwise.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, as promptly as reasonably practicable the Company, Parent and each Merger Sub shall (i) promptly, but in no event later than ten (10) 30 Business Days from after the date of this Agreement for the filing of the Agreement, file any and all notification and report forms to the COFECE and related material the IFT required under applicable Law with respect to the HSR Act)Mergers and the other transactions contemplated by this Agreement, (ii) provide or and take all other actions necessary to cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval periods under applicable Law as soon as practicable after the date of consummation this Agreement, (ii) take all actions with CFIUS as may be advisable under applicable Law to obtain Completion of the Transactions CFIUS Process with respect to the transactions contemplated by the DOJ or FTC or other applicable Governmental Authoritiesthis Agreement, including (A) promptly, but in no event later than 10 Business Days after the date of this Agreement, jointly providing notification to cause to be lifted or vacated any restraint, injunction or other legal impediment to any CFIUS of the Transactionsexecution 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 a CFIUS Declaration, submitting a CFIUS Joint Voluntary Notification if CFIUS so as to enable requests or informs the parties hereto that it is not able to consummate the Transactions prior conclude action under Section 721 with respect to the Outside Date.
Mergers and the other transactions contemplated by this Agreement on the basis of such CFIUS Declaration, (c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (iiii) cooperate in all respects with each other in connection (A) determining whether any other filings are required to be made with, or Consents are required to be obtained from, or with respect to, any filing third parties or submission with a Governmental Authority Entities, including under other applicable Antitrust Laws and/or in connection with the Transactions Company Approvals and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the TransactionsParent Approvals, including any proceeding initiated by a private person, (ii) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions execution and delivery of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any this Agreement and the consummation of the Transactionstransactions contemplated hereby and (B) promptly making all such filings and timely obtaining all such Consents, (iii) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) supply to any Governmental Entity as promptly as practicable furnish each other with copies 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 all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on such time that may be granted by CFIUS staff upon request of a party to the one handJoint Notice, and any Governmental Authority or its respective staff, on the (v) other hand, than with respect to the Transactions. Notwithstanding STB Voting Trust Opinion, the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, STB Voting Trust Approval (if required) and the Company shall cooperate STB Final Approval, which are discussed in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meetingSection 5.8(c), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, 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 hereby, including taking all such further action as may be necessary to resolve such objections, if any, as any state antitrust enforcement authorities, CFIUS, or any other Governmental Entity or other Person may assert under any Law (including in connection with the Company Approvals and all steps necessary Parent Approvals) 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 Authority or any other Person Entity with respect to the Mergers so as to enable the parties hereto Closing to consummate the Transactions occur as promptly as practicable, and in any event prior to practicable after the Outside Datedate of this Agreement, including (A) proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, order or otherwise, the sale, divestiture, license license, hold separate or disposition of any and all of the share capital or other disposition equity interest, assets (whether tangible or intangible), products or businesses of such Parent and its Subsidiaries or of its the Company and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements(B) otherwise taking or committing to take any actions that after the Closing Date would limit Parent’s or its Subsidiaries’ (including the Second Surviving Corporation’s) freedom of action with respect to, or their ability to retain, one or more of their Subsidiaries’ (including the Second Surviving Corporation’s) assets (whether tangible or intangible), products, or businesses, in each case as are necessary or advisable may be required in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws order that would otherwise have the effect of preventing or materially delaying the consummation Closing; provided, that neither 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 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 Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent Company or any of its Subsidiaries be required Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on or otherwise applicable to agree to (nor shall the Company or any Company its Subsidiaries be permitted to agree unless Parent so directs them (only from and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon after the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on First Effective Time in the Closingevent that the Closing occurs. Notwithstanding anything the foregoing, 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), nothing in this Section 6.9 or elsewhere in this Agreement 5.8 shall be deemed to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of require Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orderstake any action, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or commit to take any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry ofaction, or agree to have vacated any condition or terminated, restriction in connection with obtaining any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) Approvals that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Acthave a Parent Material Adverse Effect with respect to Parent and its Subsidiaries, or the authorizationstaken as a whole, consents, Orders and approvals required under any other applicable Antitrust Law, applicable after giving effect to the TransactionsMergers (measured on a scale relative to the Company and its Subsidiaries, taken as a whole). Except as otherwise permitted under this Agreement (ii) avoid including pursuant to the entry ofauthority granted to Parent under Section 5.8(e)), the commencement of litigation seeking the entry ofCompany, Parent and each Merger Sub shall not (and shall cause their Subsidiaries not to) take or agree to effect the dissolution of, take any injunction, temporary restraining order or other Order action that would be reasonably likely to prevent or materially delay the consummation Closing. 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 Transactionssame, and the parties shall seek authorization from the applicable Governmental Entity to withhold such information from public view.
(c) 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) obtain all other authorizationseach of Parent and the Company shall, consentsas promptly as promptly as practicable, Orders and approvals of Governmental Authorities necessary for but in no event later than six months, after the consummation of the Transactions in accordance with the terms and conditions 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, the Company, on the one hand, and 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 the Company or Parent, 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. Subject to applicable Law relating to the exchange of information, the Company, on the one hand, and 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 Entity (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 the Company, Parent and the Merger Subs agrees not to initiate or agree to participate in any meeting or discussion, either in person or by telephone 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.
(e) 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; 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 the terms and conditions of set forth in this Agreement, including each of the proviso to the first sentence of Section 6.9(d), the Company and Parent parties hereto shall (and shall cause each of their respective Subsidiaries Affiliates to) each use their reasonable best efforts to promptly take, or cause to be taken, all actions actions, and to promptly do, or cause to be done, and to assist and cooperate with the other parties in doing doing, all things necessary, proper or advisable under Applicable Law 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 Merger and the other transactions contemplated by this Agreement as promptly as practicable after the date of this Agreement and in any event prior to the End Date, including (i) obtain the obtaining of all necessary actionsactions or nonactions, authorizations, permits, waivers, consents, clearances, approvals and expirations or terminations of waiting periods (collectively, “Consents”), including the Company Approvals and the Parent Approvals, from Governmental Entities and the making of all necessary registrations, permitsnotices, authorizationsnotifications, orderspetitions, consents applications, reports and approvals from Governmental Authorities, other filings and the expiry or early termination taking of any applicable waiting periods, and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary necessary, proper or advisable to obtain an approval approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental AuthoritiesEntity, in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver required notices the obtaining of all necessary Consents from third parties, (iii) the defending of any Actions, lawsuits or any necessary additional instruments toother legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger and obtain required consentsthe other transactions contemplated by this Agreement (including the Voting Trust), waivers or seeking to prohibit or delay the Closing and (iv) the execution and delivery of any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date.
(b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.9, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummate, and to fully carry out the purposes of the transactions contemplated by this Agreement; provided, that in no event shall either the Company or Parent or any of their respective Subsidiaries be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any Consent required for or triggered by the consummation of the Transactionstransactions contemplated by this Agreement under any contract or agreement or otherwise.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, as promptly as reasonably practicable the Company, Parent and Merger Sub shall (i) promptly, but in no event later than ten (10) 30 Business Days from after the date of this Agreement for the filing of the Agreement, file any and all notification and report forms to the COFECE and related material the IFT required under applicable Law with respect to the HSR Act)Merger and the other transactions contemplated by this Agreement, (ii) provide or and take all other actions necessary to cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval periods under applicable Law as soon as practicable after the date of consummation this Agreement, (ii) take all actions with CFIUS as may be advisable under applicable Law to obtain Completion of the Transactions CFIUS Process with respect to the transactions contemplated by the DOJ or FTC or other applicable Governmental Authoritiesthis Agreement, including to cause to be lifted or vacated any restraint(A) promptly, injunction or other legal impediment to any but in no event later than 10 Business Days after the date of this Agreement, jointly informing CFIUS of the Transactionsexecution of this Agreement, (B) promptly, and in no event later than 10 Business Days after the Closing, submitting a draft CFIUS Joint Voluntary Notice to CFIUS, (C) submitting a final CFIUS Joint Voluntary Notice to CFIUS after promptly resolving all comments from CFIUS on the draft CFIUS Joint Voluntary Notice and (D) in the case of a CFIUS Declaration, submitting a CFIUS Joint Voluntary Notice if CFIUS so as to enable requests or informs the parties hereto that it is not able to consummate the Transactions prior conclude action under Section 721 with respect to the Outside Date.
Merger and the other transactions contemplated by this Agreement on the basis of such CFIUS Declaration, (c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (iiii) cooperate in all respects with each other in connection (A) determining whether any other filings are required to be made with, or Consents are required to be obtained from, or with respect to, any filing third parties or submission with a Governmental Authority Entities, including under other applicable Antitrust Laws and/or in connection with the Transactions Company Approvals and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the TransactionsParent Approvals, including any proceeding initiated by a private person, (ii) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions execution and delivery of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any this Agreement and the consummation of the Transactionstransactions contemplated hereby and (B) promptly making all such filings and timely obtaining all such Consents, (iii) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) supply to any Governmental Entity as promptly as practicable furnish each other with copies 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 all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on such time that may be granted by CFIUS staff upon request of a party to the one handJoint Notice, and any Governmental Authority or its respective staff, on the (v) other hand, than with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, STB Voting Trust Approval and the Company shall cooperate STB Final Approval, which are discussed in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meetingSection 5.8(c), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, 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 hereby, including taking all such further action as may be necessary to resolve such objections, if any, as any state antitrust enforcement authorities, CFIUS, or any other Governmental Entity or other Person may assert under any Law (including in connection with the Company Approvals and all steps necessary Parent Approvals) 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 Authority or any other Person Entity with respect to the Merger so as to enable the parties hereto Closing to consummate the Transactions occur as promptly as practicable, and in any event prior to practicable after the Outside Datedate of this Agreement, including (A) proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, order or otherwise, the sale, divestiture, license license, hold separate or disposition of any and all of the share capital or other disposition equity interest, assets (whether tangible or intangible), products or businesses of such Parent and its Subsidiaries or of its the Company and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements(B) otherwise taking or committing to take any actions that after the Closing Date would limit Parent’s or its Subsidiaries’ (including the Surviving Corporation’s) freedom of action with respect to, or their ability to retain, one or more of their Subsidiaries’ (including the Surviving Corporation’s) assets (whether tangible or intangible), products, or businesses, in each case as are necessary or advisable may be required in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws order that would otherwise have the effect of preventing or materially delaying the consummation Closing; provided, that neither 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 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 Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent Company or any of its Subsidiaries be required Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on or otherwise applicable to agree to (nor shall the Company or any Company its Subsidiaries be permitted to agree unless Parent so directs them (only from and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon after the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on Effective Time in the Closingevent that the Closing occurs. Notwithstanding anything the foregoing, other than with respect to the STB Voting Trust Approval and the STB Final Approval, which are discussed in Section 5.8(c), nothing in this Section 6.9 or elsewhere in this Agreement 5.8 shall be deemed to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of require Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orderstake any action, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or commit to take any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry ofaction, or agree to have vacated any condition or terminated, restriction in connection with obtaining any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) Approvals that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Acthave a Parent Material Adverse Effect with respect to Parent and its Subsidiaries, or the authorizationstaken as a whole, consents, Orders and approvals required under any other applicable Antitrust Law, applicable after giving effect to the TransactionsMerger (measured on a scale relative to the Company and its Subsidiaries, taken as a whole). Except as otherwise permitted under this Agreement (ii) avoid including pursuant to the entry ofauthority granted to Parent under Section 5.8(e)), the commencement of litigation seeking the entry ofCompany, Parent and Merger Sub shall not (and shall cause their Subsidiaries not to) take or agree to effect the dissolution of, take any injunction, temporary restraining order or other Order action that would be reasonably likely to prevent or materially delay the consummation Closing. 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 Transactionssame, and the parties shall seek authorization from the applicable Governmental Entity to withhold such information from public view.
(c) In furtherance and not in limitation of the other covenants of the parties contained in this Section 5.8:
(i) (A) Parent shall promptly 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 obtain, as promptly as practicable, the approval or authorization of the STB (the “STB Voting Trust Approval”) to consummate the proposed deposit of all outstanding shares of the Surviving Corporation into an irrevocable voting trust (the “Voting Trust” and such deposit, the “Voting Trust Transaction”) immediately following the Effective Time.
(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, to the extent not previously filed, file with the STB a notice of intent to file the appropriate and necessary documentation for the approval of the Merger and the transactions contemplated hereby (the “STB Approval Application”);
(iii) obtain all other authorizationseach of Parent and the Company shall, consentsas promptly as promptly as practicable, Orders and approvals of Governmental Authorities necessary for but in no event later than six months, after the consummation of the Transactions in accordance with the terms and conditions 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 Merger 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 Notice and/or CFIUS Declaration with CFIUS, including information relating to the Voting Trust Transaction.
(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 5.8, and, subject to applicable legal limitations and the instructions of any Governmental Entity, the Company, on the one hand, and 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 informing and furnishing the other with copies of notices or other communications received or given by the Company or Parent, 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. Subject to applicable Law relating to the exchange of information, the Company, on the one hand, and 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 (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 the Company, Parent and Merger Sub agrees not to initiate or agree to participate in any meeting or discussion, either in person or by telephone 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.
(e) 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 Merger 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; provided, that (i) prior to the 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 the STB Voting Trust Approval, and (ii) whether prior to or after the 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 Surviving Corporation under applicable Law. No power of the 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. Prior to the Effective Time, Parent, with the Company’s consent (not to be unreasonably withheld, conditioned or delayed), shall change or modify the terms of the Voting Trust Agreement to the extent required by the STB as a condition to receiving the STB Voting Trust Approval, or to the extent requested by CFIUS to preclude the issuance of any type of order (whether temporary, provisional, or any other type) by CFIUS, in each case so long as the required changes or modifications
Appears in 2 contracts
Sources: Merger Agreement (Canadian National Railway Co), Merger Agreement (Kansas City Southern)
Efforts. (a) Subject to the terms and conditions of this Agreement, including the proviso to the first sentence of Section 6.9(d), the Company and Parent shall (and shall cause their respective Subsidiaries to) each Party will use their its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other parties Parties in doing or causing to be done, all things necessary, proper or advisable under Applicable Law this Agreement and applicable Laws to consummate the Combination and the other transactions contemplated by the Transaction Documents as soon as practicable after the date hereof, including (i) obtain preparing and filing as promptly as practicable all documentation to effect all necessary actionsapplications, notifications, notices, petitions and filings and to obtain as promptly as practicable all Consents set forth in Section 5.4 of the Spinco Disclosure Schedule, Section 6.5 of the Spinco Disclosure Schedule and Section 7.5 of the Utah Disclosure Schedule that are required to be obtained or made at or prior to the Effective Time and all other material consents, waivers, licenses, orders, registrations, approvals, permits, authorizationsrulings, orders, consents and approvals from Governmental Authorities, the expiry expirations or early termination terminations of any applicable waiting periods, authorizations and make all clearances necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps as may or advisable to be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, obtained from any third party and/or any Governmental Authorities, Authority in order to consummate the Transactions as promptly as practicable and in Combination or any event prior to of the Outside Date and other transactions contemplated by the Transaction Documents (collectively, the “Approvals”), (ii) deliver required notices taking all reasonable steps as may be necessary to obtain all Approvals and (iii) taking reasonable efforts to share information protected from disclosure under the attorney-client privilege, work product doctrine, joint defense privilege or any necessary additional instruments toother privilege pursuant to this Section 8.7 in a manner so as to preserve the applicable privilege; provided that, and obtain with respect to Approvals from third parties (other than Governmental Authorities) required consentsunder existing Contracts, waivers such efforts shall not include any requirement or obligation of any additional instruments necessary from, Third Parties in order Party to consummate make any payment to any such third party or assume any Liability not otherwise required to be paid or assumed by the Transactions as promptly as practicable and in any event prior applicable Party pursuant to the Outside Date.
(b) terms of an existing Contract or offer or grant any financial accommodation or other benefit to such third party not otherwise required to be made by the applicable Party pursuant to the terms of an existing Contract. Notwithstanding anything to the contrary in this Section 8.7, materials provided to the other Party or its outside legal counsel may be redacted to remove references concerning valuation. In furtherance and not in limitation of the undertakings foregoing, each Party agrees to promptly make (A) an appropriate filing of a Notification and Report Form pursuant to this Section 6.9, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), Combination and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, other transactions contemplated by the Transaction Documents as promptly as reasonably practicable practicable, and in any event within twenty (but in no event later than ten (1020) Business Days from after the date hereof (unless the Parties shall mutually agree that postponing such filings to a later date is advantageous for purposes of this Agreement for satisfying the filing of conditions to the notification Combination, in which case the Parties shall identify a reasonable later date and report forms and related material required under the HSR ActParties shall file on such later date), (iiB) provide or cause appropriate filings, if any are required, with foreign regulatory authorities in accordance with other applicable Competition Laws, with respect to be provided the Combination and the other transactions contemplated by the Transaction Documents as promptly as reasonably practicable and (C) all other necessary or appropriate filings with other Governmental Authorities with respect to the Combination and the other transactions contemplated by the Transaction Documents as promptly as practicable, and, in each case, to use reasonable best efforts to supply as promptly as practicable any additional information and documentary material that may be requested by the DOJ or FTC under the HSR Act pursuant to such applicable Laws or by other such Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt use reasonable best efforts to cause the expiration or termination of any applicable waiting period or other approval of consummation under the HSR Act, and the receipt of the Transactions by the DOJ or FTC or Approvals under such other applicable Laws or from such Governmental AuthoritiesAuthorities as soon as practicable. In connection with and without limiting the foregoing, including each Utah Party, on the one hand, and Pluto and Spinco, on the other hand, shall, in connection with the efforts referenced in this Section 8.7 to cause obtain all Approvals, use its reasonable best efforts to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (ix) 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 Transactionsinquiry, including any proceeding initiated by a private personparty, (iiy) have the right to review in advance, and to the extent practicable each shall consult permitted by Law, promptly inform the other on, Party of any material filing made withcommunication received by such party from, or written materials to be submitted given by such party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Authority in connection with the Transactions and of any material communication received or given in connection with any proceeding by a private Personparty, in each case regarding any of the Transactions, (iii) as promptly as practicable, inform each other of any material communication (Combination or any other material correspondence or memorandatransactions contemplated by the Transaction Documents (and in each case, if any such communication is in writing, share a copy with the other Party) received fromand (z) to the extent permitted by Law, or permit the other Party to review in advance any communication to be given by it to, and consult in good faith with each other in advance of any meeting or telephone call with, the DOJ or DOJ, the FTC or any such other Governmental Authority or, in connection with any proceeding by a private party, any other Person, and to the extent permitted by the DOJ, the FTC or such other applicable Governmental Authority and (iv) as promptly as practicable furnish each or other with copies of all correspondencePerson, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on give the other hand, with respect Party the opportunity to attend and participate in such meetings and conferences. Notwithstanding anything in this Agreement to the Transactions. Notwithstanding the foregoingcontrary, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Subbut without limiting each Party’s obligations under this Section 6.98.7, direct and have principal responsibility for all aspects Utah shall, on behalf of the parties’ efforts Parties, control and lead all communications and strategy for dealing with the DOJ, the FTC or such other applicable Governmental Authority with respect to any antitrust, merger control, competition, national security or trade regulation Law that may be asserted by any Governmental Authority with respect to the HSR Act Combination or any of the transactions contemplated by the Transaction Documents, and Utah shall, on behalf of the Parties, control and lead the defense strategy for dealing with all Actions challenging the Combination or any of the transactions contemplated by the Transaction Documents that are brought by DOJ, the FTC or such other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods Governmental Authority with respect to any Antitrust Laws; providedantitrust, that each of the parties shall (i) have the right to review in advancemerger control, and to the extent practicable each will consult the other oncompetition, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, national security or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concernstrade regulation Law.
(db) In furtherance of the undertakings of Parent pursuant to Without limiting this Section 6.9(a) and Section 6.9(b)8.7, but subject to the proviso to next sentence of this sentenceSection 8.7(b), Parent shall each Party will take, or to cause to be taken, any and all steps and to make any and all undertakings necessary to avoid or eliminate each and every impediment under any Antitrust antitrust, merger control, competition, national security or trade regulation Law that may be asserted by any Governmental Authority with respect to the Combination or any other Person of the transactions contemplated by the Transaction Documents so as to enable the parties hereto Closing to consummate the Transactions occur as promptly soon as practicable, and in any event prior to the Outside Datereasonably possible, including (i) proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, order or otherwise, the sale, divestiture, license licensing or other disposition of such assets or businesses of its and its Spinco (or the Spinco Subsidiaries) or Utah (or the Utah Subsidiaries), as applicable, or (ii) otherwise taking or committing to take action that limits Spinco’s or the Spinco Subsidiaries’ assetsor Utah’s or the Utah Subsidiaries’, properties as applicable, freedom of action with respect to, or businesses or their ability to retain, any of the assetsbusinesses, properties product lines or businesses assets of Spinco (or the Spinco Subsidiaries) or Utah (or the Utah Subsidiaries) (the actions referred to be acquired by Parent pursuant heretoin clauses (i) and (ii) collectively, and entering into such other arrangements“Remedial Actions”) in each case, as are necessary or advisable may be required in order to satisfy the conditions to closing in Section 9.1(a) and to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order order, or other Order order in any Proceeding by a Governmental Authority suit or any other Person under Antitrust Laws that proceeding, which would otherwise have the effect of preventing the Closing or materially delaying the consummation closing of any other transaction contemplated by the TransactionsTransaction Documents; provided that, notwithstanding the foregoing provisions effectiveness of any such Remedial Action shall be contingent on consummation of the Closing or such other closing, respectively; provided, further, that without the prior written consent of Utah, none of Pluto or any Spinco Party will take, or cause to be taken, any Remedial Action with respect to the Spinco Business, the Spinco Assets or the Spinco Liabilities. The obligations of this Section 6.9(d8.7(b) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required not require Pluto to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action Remedial Action with respect to Parent any assets, Liabilities or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood businesses that are not included in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwiseSpinco Assets, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, Spinco Liabilities or the authorizationsSpinco Business, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this Agreementrespectively.
Appears in 2 contracts
Sources: Business Combination Agreement (Pfizer Inc), Business Combination Agreement (Mylan N.V.)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, including the proviso to the first sentence of Section 6.9(d), the Company (and its Subsidiaries) and Parent shall (and its Subsidiaries and Affiliates) shall cause cooperate with the other parties and use their respective Subsidiaries to) each use their reasonable best efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing doing, all things necessary, proper or advisable under Applicable Law to consummate and make effective the Merger and the other transactions contemplated by this Agreement prior to the End Date, including (i) obtain preparing and filing all documentation necessary to effect all necessary actionsactions or nonactions, waivers, registrationsconsents, permitsclearances, authorizationsapprovals and expirations or terminations of waiting periods from any Governmental Entity, orders(ii) obtaining all necessary actions or nonactions, consents and waivers, consents, clearances, or approvals 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 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 Authorities, Entity in connection with the expiry foregoing vacated or early termination of reversed and (iv) executing and delivering any applicable waiting periods, and make all additional instruments necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the Transactions transactions contemplated by this Agreement; provided, however, that, without limitation to filings fees to be paid to any Governmental Entity in accordance with Section 8.2, in no event shall Parent, Merger Sub, the Company or any of its Subsidiaries 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 agreement or otherwise.
(b) Subject to the terms and conditions in this Agreement and without limiting the foregoing, the Company (and its Subsidiaries) and Parent (and its Subsidiaries and Affiliates) shall (i) file, 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 (10) Business Days after the date hereof and file, or cause to be filed, any filing (or 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 hereof, (ii) supply or cause to be supplied, as promptly as practicable any additional information or documentary material that may be requested pursuant to the HSR Act or any other applicable Antitrust Law or Foreign Investment Law and (iii) 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 Outside Date and (ii) deliver required notices or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside End Date.
(bc) In furtherance and not in limitation of the undertakings pursuant to this Section 6.9, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (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) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondenceSubsidiaries and Affiliates) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, 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 by this Agreement, including taking all such further action as may be necessary to resolve such objections any Governmental Entity may assert under any Antitrust Law or Foreign Investment Law with respect to the Merger and all steps necessary the other transactions contemplated by 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 Authority or any Entity with respect to the Merger and the other Person transactions contemplated by this Agreement so as to enable the parties hereto Closing to consummate occur no later than the Transactions as promptly as practicable, and in any event prior to the Outside End Date, including (x) proposing, negotiating, committing to, effecting, agreeing to and effectingexecuting, by consent decree, hold separate orderssettlement, undertaking, stipulations or otherwise, the sale, divestiture, license transfer, license, hold separate or disposition of any and all of the share capital or other disposition equity voting interests, assets (whether tangible or intangible), businesses, divisions, operations, products or product lines of such 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 would limit Parent’s (including its Subsidiaries’, Affiliates’, and the Surviving Corporation’s) freedom of action with respect to, or their ability to retain, 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 Corporation) or the Company (and its Subsidiaries’ assets), properties in each case so as to satisfy the conditions to Closing or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws Action that would otherwise have the effect of preventing the Closing or materially delaying the consummation of Closing beyond the Transactions; provided that, notwithstanding End Date (each such action in the foregoing provisions clauses (x), (y) and (z), a “Burdensome Condition”); provided, that the Company (and its Subsidiaries) shall not be permitted to offer or agree to or effectuate any Burdensome Condition without the prior written consent of this Section 6.9(dParent; provided, further, that the Company (and its Subsidiaries) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or effectuate any Company Subsidiaries be permitted to agree unless Burdensome Condition upon written direction from Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking effectiveness thereof is conditioned on the Closing. Notwithstanding anything in Except as otherwise permitted under this Section 6.9 or elsewhere in this Agreement to the contraryAgreement, Parent shall not be required (and shall cause its Subsidiaries and Affiliates not to) acquire or agree to take (nor shall acquire any business, or a substantial portion of the assets or equity of any business, that competes with the Company or otherwise operates in the electronic test and measurement industry if such acquisition would be reasonably likely to prevent or materially delay the Closing.
(d) 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 Law, to (i) consult and cooperate in all respects with each other in connection with any Company Subsidiaries be permitted to take) filing or submission with a Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement and in connection with any action with respect to Parent investigation or other inquiry by or before a Governmental Entity or any Affiliate other Person relating to the Merger and the other transactions contemplated by this Agreement, (ii) keep the other parties hereto promptly informed of Parentany communication received by such party from any Governmental Entity and of any communication received in connection with any proceeding by any other Person, including any affiliated investment funds or any portfolio company in each case regarding the Merger and the other transactions contemplated by this Agreement (as such term is commonly understood and in the private equity industrycase 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 parties in connection with, any proposed filing, submission or other communication to any Governmental Entity or other Person, and (iv) to the extent not prohibited by the applicable Governmental Entity or other Person, give the other parties hereto the opportunity to attend and participate 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).
(e) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.7, if any administrative or judicial action or proceeding is instituted (or threatened to be instituted) 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, Parent or any of its Affiliates (other than shall, upon consultation with the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, in consideration of the assetsCompany’s views in good faith, properties or businesses be entitled to direct the defense and lead in the development of Parent or any Affiliate the defense strategy in all respects and each of Parent (in each case, other than the Company (and its Subsidiaries). In addition, ) and Parent (and its Subsidiaries and Affiliates) shall defend through litigation on the merits use their respective reasonable best efforts to contest and resist any claim asserted in court by any Governmental Authority such Action or any other person under Antitrust Laws in order to avoid entry of, or proceeding and to have vacated vacated, lifted, reversed or terminatedoverturned any such Action, any Order (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 Merger and the other transactions contemplated by this Agreement.
(f) that would prevent 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 occurring to occur prior to the Outside End Date.
, (eii) Neither 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 nor Merger Sub (nor which may be withheld or given in its sole discretion). Notwithstanding anything to the contrary in this Agreement, no party shall extend any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the 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 the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable otherwise not to the Transactions, (ii) avoid the entry ofconsummate as promptly as practicable, the commencement of litigation seeking Merger or the entry of, or to effect transactions contemplated by this Agreement except with the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation prior written consent of the Transactions, or other party (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this Agreementsuch 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 Upon the terms and subject to the conditions of this Agreement, including each of the proviso to the first sentence of Section 6.9(d), the Company and Parent Parties shall (and shall cause their respective Subsidiaries to) each use their its commercially reasonable best efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, and to assist and cooperate with the other parties Parties in doing doing, all things necessary, proper or advisable under Applicable applicable Law to consummate and make effective the transactions contemplated by this Agreement as promptly as practicable, including: (i) obtain the preparation and filing as promptly as practicable of all necessary actionsapplications, waiversnotices, petitions, registrations, permitsfilings, authorizations, orders, consents and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periodsruling requests, and make all necessary registrations other documents, and filings (including filings with Governmental Authorities, if any) and take the taking of all steps as may be reasonably necessary necessary, to obtain an approval as promptly as practicable all consents, 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 Authorities, Authority in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and transactions contemplated by this Agreement, (ii) deliver required notices the obtaining of all other necessary Consents, lease estoppels or waivers from third parties, provided that neither the Seller nor any necessary additional instruments toof 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 transactions contemplated by this Agreement, and obtain required consents, waivers or (iv) the execution and delivery of any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Datetransactions contemplated by this Agreement.
(b) In furtherance Subject to the other terms and not in limitation of conditions herein provided and without limiting the undertakings pursuant to this Section 6.9foregoing, each of Parent the Parties shall (and the Company shall cause their respective Subsidiaries to):
(i) prepare and file any notification and report forms and related material use their commercially reasonable efforts to cooperate with one another in (A) determining which filings are required (or considered by the Parties to be advisable) under the HSR Act and any other applicable Antitrust Laws with respect (B) to the Transactions (if any), and any additional make their respective filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by 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 Authorities under applicable Antitrust Laws (if any) Authority and consult with 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) as promptly as practicablenot agree to participate in any meeting or substantive discussion (including any discussion relating to the antitrust merits, take such actions as are necessary any potential remedies, commitments or advisable to obtain prompt expiration or termination undertakings, the timing of any applicable waiting period waivers, consents, approvals, permits, orders or other approval authorizations, and any agreement regarding the timing of consummation of the Transactions transactions contemplated by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(cthis Agreement) Subject to Applicable Law, the Company and Parent and their respective counsel shall (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 any filings or investigation concerning this Agreement or the Transactions, including any proceeding initiated by a private person, (ii) have the right to review in advance, and to the extent practicable each shall consult transactions contemplated hereunder unless it consults with the other on, any material filing made with, or written materials Party and its Representatives in advance and invites the other Party’s Representatives to be submitted to, any attend unless the Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and prohibits such attendance;
(iv) as promptly as practicable furnish each 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 written communications between them or (and memoranda setting forth the substance thereof) that they, their Subsidiaries or Affiliatestheir respective Representatives intend to submit to any Governmental Authority, on the one handit 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 respective staff, reasonable best efforts to eliminate any concern on the other hand, with respect part of any Governmental Authority regarding the legality of the transactions contemplated by this Agreement under the HSR Act. Notwithstanding anything herein to the Transactions. Notwithstanding contrary, the foregoing, Buyer and Buyer Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under shall not be required by this Section 6.9to take or agree to undertake any action, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and including entering into any consent decree, hold separate order or other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; providedarrangement, that each of the parties shall would (i) have require the right to review in advancedivestiture of any assets of the Buyer, and to the extent practicable each will consult Buyer Parent, the other on, all the information relating to the other party and its Company or any of their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the TransactionsAffiliates, (ii) promptly inform each other limit the Buyer’s freedom of any material communication (action with respect to, or its ability to consolidate and control, the Company, Acquired Entities or any of their assets or businesses or any of the Buyer’s or its Affiliates’ other material correspondence assets or memorandabusinesses or (iii) received fromlimit the Buyer’s ability to acquire or hold, or given exercise full rights of ownership with respect to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concernsShares.
(d) In furtherance The Buyer, the Buyer Parent and the Seller shall proceed with the transactions contemplated by this Agreement unless a court or other Governmental Authority has issued an injunction or other order prohibiting the closing of the undertakings of Parent pursuant to Section 6.9(a) transactions and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, that injunction or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted order has been upheld by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license an appellate court or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a appellate Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside DateAuthority.
(e) Neither Parent nor Merger Sub In addition to the foregoing, 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 approval is sought under this Agreement.
(nor 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 other Subsidiary of Parent) shall enter into filings or submissions to, or obtaining any agreementconsents, transaction authorizations, orders, approvals or waivers from, any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period Governmental Authority under the HSR ActAct pursuant to this Section 5.4, or provided that any such amount required to be paid by the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable Company prior to Closing that remains unpaid at the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary Closing shall be deemed a Transaction Expense for the consummation of the Transactions in accordance with the terms and conditions purposes of this Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Oil States International, Inc)
Efforts. (a) Subject to the terms and conditions of this Agreement, including the proviso to the first sentence of Section 6.9(d), the Company and Parent shall (shall, and shall cause their respective Subsidiaries Affiliates to) , cooperate with each other and use their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing all things necessary, proper or advisable under Applicable Law to consummate the Merger and the other transactions contemplated by this Agreement as promptly as practicable, including (ia) obtain the obtaining of all necessary actionsconsents, waiversapprovals or waivers from Third Parties, registrations, permits, authorizations, orders, consents (b) preparing and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periods, and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the Transactions 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, applications and in other documents, (c) obtaining and maintaining all approvals, consents, registrations, Permits, authorizations, licenses, waivers and other confirmations required to be obtained from any event prior Governmental Authority that are necessary to consummate the Outside Date transactions contemplated by this Agreement, (d) defending or contesting (including through litigation on the merits) any action, suit or proceeding challenging this Agreement or the transactions contemplated hereby and (iie) deliver required notices or any necessary additional instruments to, executing and obtain required consents, waivers or delivering any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and transactions contemplated hereby; provided, however, that in no event shall Parent, the Company or any event of their Subsidiaries be required to pay prior to the Outside DateEffective 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) In furtherance and not in limitation of the undertakings pursuant to this Section 6.9foregoing, each of Parent and the Company shall, and shall cause their respective Affiliates to, (1) make (i) prepare an appropriate filing of a Notification and file any notification and report forms and related material required under Report Form pursuant to the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but and in no any event later than within ten (10) Business Days from after the date of this Agreement for the filing of the notification hereof) and report forms and related material required under (ii) other appropriate filings necessary pursuant to any Foreign Antitrust Law (collectively with the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable “Antitrust Laws (if any) and (iiiLaws”) as promptly as practicable, take such actions as are necessary or advisable in each case with respect to obtain prompt expiration or termination of the transactions contemplated hereby, (2) comply at the earliest practicable date with any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to request under any of the TransactionsAntitrust Laws for additional information, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Lawdocuments, the Company and Parent and or other materials received by each of them or any of their respective counsel shall Subsidiaries or Affiliates from any Governmental Authority in respect of such filings or such transactions and (i3) cooperate in all respects 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 submission with a Governmental Authority changes suggested in connection with the Transactions therewith) and in connection with resolving any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, (ii) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, of any Governmental Authority in connection with the Transactions and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding under any of the Transactions, (iii) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to any such filing or any such transaction. In furtherance and not in limitation of the Transactionsforegoing, as promptly as reasonably practicable following the date of this Agreement, Parent and Company shall (x) submit a draft joint voluntary notice to CFIUS and (y) submit a final joint voluntary notice to CFIUS, each with regard to this Agreement and other related information pursuant to Section 721 of the Defense Production Act of 1950, as amended. Each of Parent and the Company shall cooperate respond to any request for information from CFIUS in the timeframe set forth in the CFIUS regulations, 31 C.F.R. Part 800; provided, however, that either party, after consultation with the other party, may request in good faith with Parent and Merger Sub in an extension of time pursuant to 31 CFR § 800.403(3) to respond to CFIUS requests for follow-up information, provided that under no circumstance may a party request any extension that causes CFIUS to reject the parties’ voluntary notice filed by the parties or modifies the time for completion of the CFIUS review or investigation. Each such party shall use its best efforts to obtain furnish to each other all information required for any clearance, approval, waiver application or expiry or early termination other filing to be made pursuant to any Applicable Law in connection with the transactions contemplated by this Agreement. Each such party shall as promptly as practicable inform the other parties hereto of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advanceoral communication with, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made provide copies of written communications with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with regarding any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (such filings or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and such transaction except such written communications between them or their Subsidiary, on conveying the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions“personal identifier information” required under 31 CFR § 800.402(c)(6)(vi)(B). The parties No party hereto shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to independently participate in any material discussion or formal meeting with any Governmental Authority in respect of any filingsuch filings, investigation 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 Applicable 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 TransactionsAntitrust Laws or Regulatory Laws. The Company and Parent mayNotwithstanding anything in the foregoing to the contrary, as each deems advisable and necessaryany such disclosures, reasonably designate any competitively sensitive material provided rights to participate or provisions of information by one party to the other may be made on a counsel-only basis (counsel to include outside counsel and relevant in-house counsel handling proceedings under this Section 6.9 as “any Antitrust Counsel Only Material.” Notwithstanding anything to the contrary Laws or Regulatory Laws) if allowed or required under Applicable Law, and further, either party may in this Section 6.9, materials provided good faith reasonably withhold from disclosure to the other party privileged or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies classified information, and as necessary to address reasonable attorney-client or other privilege or confidentiality concernssensitive personal data.
(dc) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject Notwithstanding anything herein to the proviso to this sentence, contrary: (i) Parent shall take, or and shall cause its Affiliates to be takentake, any and all steps necessary action necessary, including but not limited to avoid (A) selling or eliminate 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 Affiliates; (B) terminating existing relationships, contractual rights or obligations of the Company or Parent or their respective Affiliates; (C) terminating any venture or other arrangement; (D) creating any relationship, contractual rights or obligations of the Company or Parent or their respective Affiliates, (E) agreeing to mitigation measures regarding post-closing operations of the Company or its Affiliates required by the National Security Authorities or (F) effectuating any other change or restructuring of the Company or Parent or their respective Affiliates (and, in each case, to enter into agreements or stipulate to the entry of an order or decree or file appropriate applications with: (x) the Federal Trade Commission, the Department of Justice, any attorney general of any state of the United States, the European Commission or any other competition authority of any jurisdiction (“Antitrust Authority”); (y) CFIUS, the President of the United States, the United States Department of Defense (including the Defense Security Services), the United States Department of State, the United States Department of Energy or the United States Department of Justice (collectively, the “National Security Authorities”, and, collectively with the Antitrust Authority, the “Regulatory Authorities”); or (z) all other Governmental Authorities; in connection with any of the foregoing (each a “Divestiture Action”)), and every impediment (ii) 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 its Affiliates or its or their businesses or assets, in the case of each of clause (i) and (ii), to ensure that no Governmental Authority enters any order, decision, judgment, decree, ruling, injunction (preliminary or permanent), or establishes any law, rule, regulation or other action preliminarily or permanently restraining, enjoining or prohibiting the consummation of the Merger (“Regulatory Prohibition”), or to ensure that no Regulatory Authority with the authority to clear, authorize or otherwise approve the consummation of the Merger fails to do so, by the End Date; provided, however, that any action under this subparagraph (c), by Parent, the Company or their Affiliates is not required unless conditioned upon consummation of the Merger. 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 interest in any Person that derives revenues from products, services or 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 impediments under any Antitrust Law or any Regulatory Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate consummation of the Transactions 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 or any Regulatory Law, Parent shall, and in any event prior to shall cause its Affiliates to, defend and contest (including through litigation on the Outside Datemerits), or otherwise resolve, the action (with the Company’s cooperation), and shall take all other actions necessary, including proposingbut not limited to any Divestiture Action, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying allow the consummation of the Transactions; provided that, notwithstanding transactions by the foregoing provisions End Date. 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 Section 6.9(d) Agreement unlawful or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreementrestrain, transaction enjoin or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would otherwise prevent or materially delay the consummation of the Transactionstransactions contemplated by this Agreement, Parent shall take, and shall cause its Affiliates to take, as promptly as practicable any and all steps necessary to vacate, modify or suspend such injunction or order so as to permit such consummation by the End Date. The Company shall cooperate with Parent and shall use its best efforts to assist Parent in resisting any action, suit or proceeding challenging this Agreement or the transactions contemplated hereby and in negotiating and conducting any Divestiture Action. Without limiting the obligations set forth in this Section 8.01, Parent shall 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, Regulatory Laws, Regulatory Authorities and all other related matters, including dealings with Regulatory Authorities and any Divestiture Actions or litigation under Antitrust Laws or Regulatory Laws; provided, however, that Parent shall, and shall cause its Affiliates to, to the extent permitted by Applicable Law and Governmental Authority, (i) if practicable under the circumstances and without causing undue delay or impeding Parent’s ability to satisfy its obligations in this Section 8.01(c), consult with the Company in advance of any meeting, teleconference 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, (ii) afford the Company an opportunity to review any written advocacy materials to be submitted to such Governmental Authority in advance of the submission thereof, and (iii) furnish the Company with copies of all written materials received by or on behalf of such party from such Governmental Authority, in each case to the extent permitted by Applicable Law. The Company shall not, without Parent’s prior written consent or request, communicate, offer, negotiate, or agree or bind itself or Parent, with any Regulatory Authority or other third party regarding any Divestiture Action. Notwithstanding anything to the contrary in this Agreement, the process for obtaining CFIUS approval shall be managed jointly by Parent and Company, Parent and Company shall jointly make all final determinations as to the appropriate course of action and all communications and filings (including, a withdrawal of submission) to and with CFIUS shall be jointly coordinated between Parent and Company. However, Parent shall make final determinations concerning agreements and undertakings to be entered into with CFIUS. 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 Authority. Each of the Company and Parent agrees not to participate in any substantive CFIUS-related meeting or discussion, either in person or by telephone, with any Governmental 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 Authority, gives the other party the opportunity to attend and participate.
(d) For purposes of this Agreement, “Regulatory Law” means the Defense Production Act of 1950, as amended, the International Traffic in Arms Regulations (“ITAR”), applicable requirements of the National Industrial Security Program, the Export Administration Regulations, the embargoes and restrictions administered by the United States Office of Foreign Assets Control and any Executive Orders of the President regarding embargoes and restrictions on trade with designated countries, entities and persons, and all other federal, state or foreign statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other Applicable Laws, including any Applicable Laws related to antitrust, competition or trade regulation, that are designed or intended to (i) prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening competition through merger or acquisition, (ii) regulate the business or operations of the Company or its Subsidiaries or (iii) obtain all other authorizations, consents, Orders and approvals protect the national security or the national economy of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this Agreementany nation.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, including each of the proviso to the first sentence of Section 6.9(d), the Company and Parent parties hereto shall (and shall cause their respective Subsidiaries to) each use their all reasonable best efforts to taketake promptly, or cause to be taken, all actions actions, and to dodo promptly, or cause to be done, and to assist and cooperate with the other parties in doing doing, all things necessary, proper or advisable under Applicable Law applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as practicable after the date hereof and in any event prior to the End Date, including (i) obtain the obtaining of all necessary actionsactions or nonactions, waivers, registrationsconsents, permitsclearances, authorizations, orders, consents approvals and approvals from Governmental Authorities, the expiry expirations or early termination terminations of any applicable waiting periods, including the Specified Approvals and make the Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Authorities, if any) and take the taking of all steps as may be reasonably necessary to obtain an approval approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental AuthoritiesEntity, in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver required notices or any the obtaining of all necessary additional instruments to, and obtain required 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 Merger and the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable transactions contemplated by this Agreement; provided, however, that in no event shall the Company or any of its Subsidiaries be required (nor, without the prior written consent of Parent, shall the Company and in any event its Subsidiaries be permitted) to pay prior to the Outside DateEffective 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 agreement or otherwise.
(b) In furtherance Subject to the terms and not in limitation of conditions herein provided and without limiting the undertakings pursuant to this Section 6.9foregoing, each of Parent and the Company and Parent shall (and, to the extent applicable, Parent shall cause the Equity Investors to) (i) prepare (A) file or cause to be filed any and file any all required notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions 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 any)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 additional filings or notifications point prior to the Company and related material Parent filing the required notification and report forms under the HSR Act, Parent determines in good faith that are it would be necessary, proper or advisable to permit consummation accelerate such filing in order to obtain the expiration of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC waiting period under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions 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 are necessary or advisable promptly as practicable thereafter), and (B) use all reasonable best efforts to obtain prompt cause the expiration or termination of any applicable waiting period periods under the HSR Act, (ii) no later than thirty (30) calendar days after the date hereof, make or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any made the requisite initial submissions for the required filings specified in Schedule 6.1(c) of the Transactions, so as to enable the parties hereto to consummate the Transactions prior this Agreement with respect to the Outside Date.
Merger and the other transactions contemplated by this Agreement (cincluding the transactions contemplated by the Investment Agreement), (iii) Subject use reasonable best efforts to Applicable Law, the Company and Parent and their respective counsel shall (i) cooperate in all respects with each other in connection with (A) determining whether any filing other filings are required to be made with, or submission with a consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or Governmental Authority Entities in connection with the Transactions execution and in connection with any investigation delivery of this Agreement and the consummation of the transactions contemplated hereby and (B) promptly making or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, (ii) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials causing to be submitted tomade all such filings and timely obtaining all such consents, any Governmental Authority in connection with the Transactions and permits, authorizations, waivers, clearances, approvals or expirations or terminations of any material communication received or given in connection with any proceeding by a private Personwaiting periods, in each case regarding any of the Transactions, (iii) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) supply or cause to be supplied to any Governmental Entity as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them any information or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect documentary material that may be requested pursuant to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, Law or written materials (including correspondence) submitted to, any Third Party and/or any by such Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority Entity and (iiiv) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, 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 hereby, including taking all such further action as may be necessary 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 any other Governmental Entity or Person may assert under any applicable antitrust Law with respect to the transactions contemplated hereby, and all steps necessary to avoid or eliminate each and every impediment under any Antitrust applicable antitrust Law that may be asserted by any Governmental Authority or any other Person Entity with respect to the Merger so as to enable the parties hereto Closing to consummate the Transactions occur as promptly as practicable, practicable after the date hereof (and in any event prior to no later than the Outside End Date), including (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, order or otherwise, the sale, divestiture, license license, hold separate or disposition of any and all of the share capital or other disposition equity voting interest, assets (whether tangible or intangible), businesses, divisions, operations, products or product lines of such Parent or its Subsidiaries or Affiliates or of the Company or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit Parent’s or its Subsidiaries’ assets(including the Surviving Corporation’s) or Affiliates’ freedom of action with respect to, properties or businesses their ability to retain, one or more of their Subsidiaries’ (including the assetsSurviving Corporation’s), properties assets (whether tangible or businesses to intangible), businesses, divisions, operations, products or product lines (such actions described in clause (iv), “Divestiture Actions”), in each case as may be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable required in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws Action that would otherwise have the effect of preventing or the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided, that neither 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 to sell, divest, license, hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets (whether tangible or intangible), businesses, divisions, operations, products or product lines 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 only from and after the Effective Time in the event that the Closing occurs; 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 its Subsidiaries shall be permitted to take, or propose or agree to take, any Divestiture Action without the prior written consent of Parent (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 Parent or any Equity Investor to take, or propose or agree to take, any Divestiture Action that (I) is not expressly conditioned on the consummation of the Transactions; provided thatClosing, notwithstanding (II) involves the foregoing provisions assets, properties and rights of any Equity Investor or any Affiliates of any Equity Investor other than Parent, the Company, Walnut and their respective subsidiaries 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 after the Closing, of the pro forma Parent and its Subsidiaries (together with the Surviving Corporation and its Subsidiaries) (a “MAE Detriment”).
(c) 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 6.9(d) 5.8(c), and, subject to applicable legal limitations and the instructions of any Governmental Entity, the Company, on the one hand, and 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 any other provision of this Agreementcommunications received by the Company or Parent, in no event shall Parent as the case may be, or any of its their respective Subsidiaries be required to agree to (nor shall the Company or Affiliates, from any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) third party and/or any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action Governmental Entity with respect to such transactions. Subject to applicable Law relating to the exchange of information, the Company, on the one hand, and 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 Affiliate 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 Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) businesses of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposingor proposals from third parties with respect thereto, negotiating(y) as necessary to comply with contractual agreements and (z) as necessary to address reasonable privilege or confidentiality concerns. The parties, committing 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 effectingthe 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 the Company, Parent and Merger Sub agrees not to participate in any meeting or discussion, either in person, by consent decree, hold separate ordersvideoconference, or otherwiseby telephone, with any Governmental Entity in connection with the saleproposed transactions unless it consults with the other party in advance and, divestitureto the extent not prohibited by such Governmental Entity, license or gives the other disposition, of party the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company opportunity to attend and its Subsidiaries)participate. In additionWithout limiting Parent’s obligations under this Section 5.8, Parent shall defend through litigation on (subject to reasonable and good faith consultation in advance with the merits Company) control all decisions relating to (x) the process and strategy of seeking all clearances, consents or approvals under the HSR Act and any claim asserted in court by other applicable Laws and from any Governmental Authority 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 any other person under Antitrust Laws in order to avoid entry oflitigation 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 5.8, 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 the Company, Parent and 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 vacated, lifted, reversed or terminatedoverturned any Action, any Order (decree, judgment, injunction or other order, whether temporary, preliminary or permanent) , that would prevent is in effect and that prohibits, prevents or restricts consummation of the Closing occurring prior to Merger and the Outside Dateother 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 (nor including by acquiring or agreeing to acquire by merging or consolidating with, or by purchasing the assets of or equity in, any other Subsidiary of ParentPerson (a “Specified Acquisition”) shall or enter into any agreementnew line of business, transaction if the entering into of a definitive agreement relating to or any agreement to effect any transaction (including any merger the consummation of such a Specified Acquisition or acquisition) that would the entering into such new line of business, as applicable, could reasonably be expected to prevent prevent, materially delay or materially delay Parent’s impede the obtaining of, or adversely affect in any material respect the ability of Parent and Merger Sub’s ability to: (i) obtain Sub to procure, any authorizations, consents, orders, declarations or approvals of any Governmental Entity or the timely expiration or termination of the any applicable waiting period necessary to consummate the transactions contemplated hereby or under the HSR Act, or 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 authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this Agreementordinary course.
Appears in 1 contract
Efforts. (a) Subject Each of the Parties agrees to the terms and conditions of this Agreement, including the proviso to the first sentence of Section 6.9(d), the Company and Parent shall (and shall cause their use its respective Subsidiaries to) each use their reasonable best efforts to take, or cause to be taken, all actions actions, to file, or cause to be filed, all documents and to do, or cause to be done, and to assist and cooperate with the other parties in doing all things necessary, proper or advisable under Applicable Law this Agreement and applicable Laws to consummate the Transactions as promptly as practicable, including: (i) obtain the obtaining of all necessary actionsactions or nonactions, licenses, permits, orders, notifications, clearances, waivers, registrations, permits, authorizations, ordersexpirations or terminations of waiting periods, consents clearances, Consents and approvals from Governmental Authorities, Entities and the expiry or early termination making of any applicable waiting periods, and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take the taking of all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action any Action, injunction or proceeding by, any Governmental AuthoritiesEntity, including in order connection with any Regulatory Law; (ii) the defending of any Actions challenging this Agreement or the consummation of the Transactions; (iii) the transfer of Merisant Venezuela SRL to an Affiliate of the Seller that is not an Acquired Company; and (iv) the execution and delivery of any notification or additional instruments necessary to consummate this Agreement and the Transactions.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the Purchaser and the Sellers agree: (i) to make or cause to be made an appropriate filing under the HSR Act as promptly as practicable, and in any event no later than ten (10) Business Days after the date of this Agreement; (ii) to make or cause to be made, as promptly as practicable, comparable notification filings, forms and submissions required under other Regulatory Laws with the Governmental Entities identified in Section 5.3(b) of the Sellers Disclosure Schedule (collectively, the “Governmental Consents”); and (iii) to cooperate with each other in (A) determining whether any filings are required to be made with, or Governmental Consents are required to be obtained from, any other Governmental Entities (including any non-U.S. jurisdiction in which the Business operates) and (B) to the extent not made prior to the date of this Agreement or otherwise, making, or causing to be made, as promptly as practicable, all such applications and filings and seeking all such actions or nonactions, licenses, permits, orders, clearances, waivers, authorizations, expirations or terminations of waiting periods, notifications, clearances, consents and approvals. 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 the HSR Act filing, any other Governmental Consent, or 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 and in any event prior to the Outside Date and (ii) deliver required notices or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and but in any event prior to the Outside Date.
(b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.9, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper all action necessary or advisable to permit 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 promptly 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 practicable be expected to materially and adversely affect the Business, 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.
(but c) The Sellers, on the one hand, and the Purchaser, on the other, shall each be responsible for fifty percent (50%) of all fees and payments owed to a Governmental Entity in order to obtain any Consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Agreement; provided, however, notwithstanding the foregoing, to the extent that the Transactions are consummated, the Purchaser shall be responsible for all administrative filing fees payable to any Governmental Entity in order to obtain any Consent, clearance, expiration or termination of a waiting period, authorization, Order or approval pursuant to this Agreement and to the extent that the Sellers make any such payments prior to Closing, the Adjustment Amount will be modified in accordance with the terms set forth in the definition. Notwithstanding anything to the contrary in this Agreement, under no event later than ten circumstances shall the Sellers or any of their Affiliates be required to make any expenditure or give any commitment to any Person in connection with obtaining any consent.
(10d) Business Days from Without limiting the date generality of the rest of this Agreement for the filing Section 5.3, each of the notification and report forms and related material required under the HSR Act)Parties shall cooperate, (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (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 and shall, subject to applicable Law and reasonable confidentiality considerations, as promptly as reasonably practicable (i) furnish to the Transactions, including any proceeding initiated by a private person, other such necessary information and reasonable assistance as the other Party may reasonably request in connection with the foregoing; (ii) have promptly notify and inform the right 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 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 the Business and the transactions contemplated thereby and (B) as necessary to comply with contractual arrangements. Each Party shall, subject to applicable Law, permit counsel for the other Parties a reasonable opportunity to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate consider in good faith with Parent and Merger Sub the views of the other Party in the parties’ efforts to obtain connection with, any clearanceproposed written communication, approvaldraft filing, waiver correspondence or expiry or early termination of any applicable waiting periods with respect submission to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry Entity in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided Each Party agrees not to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry ofparticipate, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or permit any of its Affiliates (other than the Company and its Subsidiaries)or their respective Representatives to participate, including proposingin any meeting or discussion, negotiatingeither in person or by telephone, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by with any Governmental Authority or any Entity in connection with the Transactions, unless it consults with the other person under Antitrust Laws Parties in order to avoid entry ofadvance and, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Dateextent not prohibited by such Governmental Entity, gives the other Parties the opportunity to attend and participate.
(e) Neither Parent nor Merger Sub Any information provided to any Party or its Representatives to another Party or its Representatives in accordance with this Section 5.3 or otherwise pursuant to this Agreement shall be held by the receiving Party and its Representatives in accordance with, and shall be subject to, the confidentiality obligations set forth in the Confidentiality Agreement.
(nor f) During the period from the date hereof until the earlier of the termination of this Agreement in accordance with its terms and the Closing Date, the Parties shall not, and shall not permit any other Subsidiary of Parent) shall enter into their Affiliates to, knowingly take any agreementaction that could prevent, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent materially delay or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay impede the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this AgreementTransaction.
Appears in 1 contract
Sources: Purchase Agreement (Act II Global Acquisition Corp.)
Efforts. (a) Subject to the terms and conditions of this Agreement, including the proviso to the first sentence of Section 6.9(d), the Company and Parent shall (and shall cause their respective Subsidiaries to) each party will use their reasonable best efforts to take, or cause to be taken, all actions and to dodo promptly, or cause to be donedone promptly, and to assist and cooperate with the each other parties in doing doing, all things necessary, proper or advisable under Applicable Law to (i) obtain all necessary actions, waivers, registrations, permits, authorizations, orders, consents and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periods, consummate and make all necessary registrations effective the Mergers and filings (the other transactions contemplated by this Agreement, including filings with Governmental Authorities, if any) preparing and take all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the Transactions filing as promptly as practicable all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and in any event prior to the Outside Date and (ii) deliver required notices or any other documents necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable Mergers and in any event prior to the Outside Date.
(b) other transactions contemplated by this Agreement. In furtherance and not in limitation of the undertakings pursuant to this Section 6.9foregoing, each of Parent and the Company shall party hereto agrees (i) prepare to make appropriate filings of a Notification and file any notification and report forms and related material required under Report Form pursuant to the HSR Act Act, including (x) any required filings by the Company with respect to any Management Business Sale and (y) any required filings by the Company and Parent with respect to the Acquisition Merger without giving effect to a Management Business Sale, and any other filings pursuant to applicable Antitrust Regulatory Laws with respect to the Transactions (if any)transactions contemplated hereby, and any additional which filings or notifications and related material that are necessaryshall be made promptly, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from after the date hereof (in the case of this Agreement for the filing pursuant to clause (y)), or ten (10) Business Days after the date the Company enters into a definitive agreement (in the case of the notification filing pursuant to clause (x)), and report forms and related material required under as promptly as practicable after the HSR Act)date hereof with respect to any filing pursuant to other applicable Regulatory Laws, (ii) provide or cause to use reasonable best efforts to cooperate with each other in (A) determining which filings are required to be provided made prior to the Effective Date with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Effective Date from, Governmental Authorities or any other Person in connection with the execution and delivery of this Agreement, and the consummation of the Mergers, any Management Business Sale and the other transactions contemplated by this Agreement, including any such consents, approvals, permits or authorizations as may be necessary to avoid a material Violation of any Specified Contract, (B) timely completing all necessary documentation and related forms or paperwork as may be required for all such filings, and (C) timely making all such filings to obtain all consents, approvals, permits and authorizations, (iii) to furnish promptly to the other party, subject in appropriate cases to appropriate confidentiality agreements to limit disclosure to outside lawyers and consultants, with such information and reasonable assistance as such other party and its Affiliates may reasonably request in connection with their preparation of necessary filings, registrations, and submissions of information to any Governmental Authority, including any filings under the Regulatory Laws, (iv) to supply as promptly as reasonably practicable any additional information and documentary material that may be requested by pursuant to the DOJ HSR Act or FTC any other applicable Regulatory Laws and (v) to use reasonable best efforts to take or cause to be taken all other actions necessary, proper or advisable to obtain applicable clearances, consents, authorizations, approvals or waivers and to cause the expiration or termination of the applicable waiting periods with respect to the approval of the Mergers and any Management Business Sale under the HSR Act or by and any other Governmental Authorities under applicable Antitrust Regulatory Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of practicable and in any applicable waiting period or other approval of consummation of event no later than the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside End Date.
(cb) Subject to Applicable Law, the Company and Each of Parent and their respective counsel shall Merger Sub, on the one hand, and the Company, on the other hand, shall, in connection with the efforts referenced in Section 7.2(a), 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 Transactionsinquiry, including any proceeding initiated by a private person, party; (ii) have the right to review in advance, and to the extent practicable each shall consult promptly notify the other on, party of any material filing made with, or written materials communication concerning this Agreement and any of the transactions contemplated hereby to be submitted to, that party from any Governmental Authority and consider in connection good faith the views of the other party and keep the other party reasonably informed of the status of matters related to the transactions contemplated by this Agreement, including furnishing the other with any written notices or other communications received by such party from, or given by such party to, the Transactions Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”) or any other U.S. or foreign Governmental Authority and of any material communication received or given in connection with any proceeding by a private Personparty, in each case regarding any of the Transactions, transactions contemplated hereby; and (iii) as promptly as practicablepermit the other party to review in draft any proposed communication to be submitted by it to, inform with reasonable time and opportunity to comment, give reasonable consideration to the other party’s comments thereon, and consult with each other in advance of any material communication (in-person or any other material correspondence telephonic meeting or memoranda) received fromconference with, or given tothe FTC, the DOJ or any other Governmental Authority or, in connection with any proceeding by a private party, with any other Person, and to the FTC extent permitted by the FTC, the DOJ or any such other applicable Governmental Authority and or other Person, not agree to participate in any meeting or substantive discussion (iv) as promptly as practicable furnish each other with copies including any discussion relating to the antitrust merits, any potential remedies, commitments or undertakings, the timing of all correspondenceany waivers, filings and written communications between them consents, approvals, permits, orders or their Subsidiaries or Affiliates, on the one handauthorizations, and any agreement regarding the timing of consummation of the Mergers and the Management Business Sale) with any Governmental Authority relating to any filings or its respective staff, on investigations concerning this Agreement and any of the transactions contemplated hereby unless it consults with the other handparty and its Representatives in advance and invites the other party’s Representatives to attend in accordance with Regulatory Laws; provided, however, that nothing in this Agreement shall prevent a party from responding to or complying with a subpoena or other legal process required by Law or submitting factual information in response to a request therefor.
(c) In furtherance and not in limitation of the covenants of the parties contained in Section 7.2(a) and Section 7.2(b), each party hereto shall use its reasonable best efforts to resolve objections, if any, as may be asserted with respect to the Transactions. Notwithstanding transactions contemplated by this Agreement under any Regulatory Laws, including defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects consummation of the parties’ efforts with respect transactions contemplated hereby and thereby (including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed). In the HSR Act and event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Authority, or private party challenging the Mergers, the Management Business Sale or any other applicable Antitrust Laws with respect to the Transactionstransaction contemplated by this Agreement, or any other agreement contemplated hereby, each of Parent, Merger Sub and the Company shall cooperate in good faith with Parent the other and Merger Sub in the parties’ use its respective reasonable best efforts to obtain contest and resist any clearancesuch action or proceeding and to have vacated, approvallifted, waiver reversed or expiry overturned any decree, judgment, injunction or early termination of any applicable waiting periods with respect to any Antitrust Laws; providedother Order, whether temporary, preliminary or permanent, that each is in effect and that prohibits, prevents or restricts consummation of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under transactions contemplated by this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concernsAgreement.
(d) In furtherance of, and not in limitation of, the covenants of the undertakings of Parent pursuant to parties contained in Section 6.9(a7.2(a), Section 7.2(b), Section 7.2(c) and Section 6.9(b7.2(d), but subject to the proviso to this sentence, Parent and Merger Sub shall take, or cause to be taken, all such further actions as may be necessary to resolve such objections, if any, as the FTC, the 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 Mergers, the Management Business Sale and all steps necessary the other transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any with respect to the Mergers, the Management Business Sale and the other Person transactions contemplated hereby so as to enable the parties hereto Closing to consummate the Transactions occur as promptly as practicable, reasonably practicable and in any event prior to no later than the Outside End Date, including (i) proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, order or otherwise, regardless of the consideration, the sale, divestiture, license or other disposition of such any assets or businesses of the Company, Holdco, its Subsidiaries or Joint Ventures, or of Parent or its Subsidiaries, and (y) otherwise taking or committing to take any actions that after the Closing Date would limit the freedom of Parent, Holdco, the Company Surviving Corporation, their Subsidiaries’ or the Joint Ventures’ freedom of action with respect to, or its ability to retain, one or more of its and or its Subsidiaries’ or Joint Ventures’ businesses, product lines or assets, properties or businesses or of the assets, properties or businesses to in each case as may be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable required in order to effect the satisfaction of the conditions to the Mergers set forth in Article VIII prior to the End Date and to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority suit or any other Person under Antitrust Laws proceeding that would otherwise have the effect of preventing the Closing or materially delaying the consummation Closing beyond the End Date; provided, however, that (i) neither Holdco, 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 Order, requirement, condition, understanding or agreement of or with a Governmental Authority to sell, to license, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the Transactions; provided thatassets or business of Holdco, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent Company or any of its Affiliates, unless such Order, requirement, condition, understanding or agreement is binding on the Company only in the event that the Mergers occur; and (ii) nothing in this Section 7.2 shall require, or be construed to require Parent, Holdco, the Company or their respective Subsidiaries be required or Affiliates to sell, divest, license or dispose of or hold separate (or to propose or agree to (nor shall sell, divest, license or dispose of or hold separate), before or after the Closing, any assets or businesses of Parent, Holdco, the Company or any Company of their respective Subsidiaries be permitted to agree unless Parent so directs them (and they shallor Affiliates, if Parent so directs, agree such action would be reasonably expected to, so long as such agreements are conditioned upon the Closing)) any action, concession individually or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) aggregate, result in (after giving effect to any reasonably expected proceeds of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, ) a material adverse effect on the business or financial condition of the assetsCompany, properties or businesses of Parent or any Affiliate of Parent (in each casethe Subsidiary and the Joint Ventures, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Datetaken together as a whole.
(e) Neither Parent nor Merger Sub Any other provision of this Agreement notwithstanding, in connection with obtaining any approval or consent from any Person (nor any other Subsidiary of Parentthan a Governmental Authority) shall enter into any agreementwith respect to the Mergers, transaction the Management Business Sale or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: the other transactions contemplated by this Agreement, (i) obtain if reasonably requested in writing by Parent, the timely expiration Company shall, shall cause its Subsidiaries or termination of the waiting period under the HSR Actshall use reasonable best efforts to cause its Significant Joint Ventures to, or the authorizationsexecute any documents, consents, Orders agreements and approvals required under any instruments and take such other applicable Antitrust Law, applicable actions to the Transactionsextent practicable, all in such order, form and substance as reasonably requested by Parent, and (ii) avoid without the entry ofprior written consent of Parent, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation none of the TransactionsCompany or any of its Subsidiaries or Significant Joint Ventures shall take any action, agree to take any action or consent to the taking of any action pursuant to this Section 7.2 (iii) obtain all other authorizationsincluding with respect to selling, consents, Orders and approvals holding separate or otherwise disposing of Governmental Authorities necessary for the consummation of the Transactions assets or conducting its business in accordance with the terms and conditions of this Agreementa specified manner).
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of this Agreement, including the proviso to the first sentence each of Section 6.9(d), the Company and Parent shall (and shall cause their respective Subsidiaries to) each use their its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing all things necessary, proper or advisable under Applicable applicable Law to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as practicable after the date of this Agreement and, in any event, prior to the End Date, including using reasonable best efforts to (i) prepare and file, in consultation with the other Parties, as promptly as 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 other documents and (ii) obtain and maintain all necessary actionsapprovals, waiversconsents, registrations, permits, authorizationsauthorizations and other confirmations required to be obtained from any Governmental Authority or other Third Party, ordersin each case, consents and approvals from Governmental Authoritiesthat are necessary, the expiry proper or early termination of any applicable waiting periods, advisable to consummate and make all necessary registrations effective the Merger and filings the other transactions contemplated by this Agreement (including filings with Governmental Authoritieswhether or not such approvals, if any) consents, registrations, permits, authorizations and take all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the Transactions as promptly as practicable and in any event prior other confirmations are conditions to the Outside Date and (ii) deliver required notices or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order consummation of the Merger pursuant to consummate the Transactions as promptly as practicable and in any event prior to the Outside DateArticle VIII).
(b) In furtherance and not in limitation of the undertakings pursuant foregoing, each of Parent and the Company shall make as promptly as practicable after the date of this Agreement (i) the HSR Filing, (ii) the Ex-U.S. Filings, (iii) the FERC Application, (iv) the NJDEP Application, (v) the FCC Filing and (vi) the draft CFIUS Notice; provided that each of Parent and the Company shall make (x) the HSR Filing within ten (10) Business Days after the date of this Agreement, (y) the FERC Application and the NJDEP Application within twenty (20) Business Days after the date of this Agreement or, in each case, if agreed by the Parties, otherwise as soon as possible, and (z) the draft CFIUS Notice within thirty (30) days after the date of this Agreement and the final CFIUS Notice promptly after receipt of confirmation that CFIUS has no further comment to the draft CFIUS Notice. Each of the Company and Parent shall use reasonable best efforts to (A) supply as promptly as practicable any additional information and documentary material that may be requested by a Governmental Authority in connection with the foregoing, including any information, documentation or other material that may be requested by a Governmental Authority with respect to any controlling person of Parent, (B) furnish to each other any necessary information and reasonable assistance as the other may request in connection with the foregoing, and (C) take all other actions necessary or advisable to cause the expiration or termination of any applicable waiting periods under the HSR Act and to obtain the Ex-U.S. Approvals, the FERC Approval, the NJDEP Approval, the FCC Consents, and the CFIUS Approval, in each case as promptly as practicable, and in the case of the CFIUS Approval within the timeframes set forth under the DPA, and, in any event, prior to the End Date. The Company and Parent shall each request early termination of the waiting period with respect to the Merger under the HSR Act. Parent shall pay 100% of the filing fees payable under the HSR Act or in connection with the Ex-U.S. Filings, the FERC Application, the NJDEP Application, the filing fee associated with the CFIUS Notice and all FCC filing fees payable by the Company, Parent and their respective Subsidiaries relating to the Merger, regardless of whether the transactions contemplated by this Section 6.9Agreement are consummated.
(c) Except as prohibited by applicable Law or Order, each of Parent and the Company shall (i) prepare cooperate and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (i) cooperate in all respects consult with each other in connection with any filing or submission with a Governmental Authority in connection with the Transactions transactions contemplated by this Agreement and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactionstransactions contemplated by this Agreement, including any proceeding initiated by a private personparty, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings (except HSR filings) and submissions, (ii) have promptly inform the right to review other Party of (and if in advancewriting, and supply to the extent practicable each shall consult the other on, Party) any material filing made withsubstantive communication received by such Party from, or written materials to be submitted given by such Party to, the Federal Trade Commission, the Antitrust Division of the Department of Justice, FERC, NJDEP, the FCC, CFIUS or any other Governmental Authority in connection with the Transactions and of any material communication received or given in connection with any proceeding by a private Personparty, in each case regarding any of the Transactionstransactions contemplated by this Agreement, (iii) as promptly as practicable, inform consult with each other of prior to taking any material communication (position with respect to the filings contemplated by Section 7.1(b) in discussions with or filings to be submitted to any other material correspondence or memoranda) received fromGovernmental Authority, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, presentations, memoranda, briefs, arguments, opinions and proposals to be submitted to any Governmental Authority with respect to the filings contemplated by Section 7.1(b) and (v) coordinate with the other in preparing and exchanging such information and promptly as practicable furnish each provide the other (and its counsel) with copies of all correspondencefilings, filings presentations or submissions (and written communications between them or their Subsidiaries or Affiliates, on the one hand, and a summary of any oral presentations) made by such Party with any Governmental Authority relating to this Agreement or its respective staffthe transactions contemplated hereby; provided, on however, that the other hand, with respect Parties may redact information related to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with valuation of the Company and after giving due consideration personal identifier information from any materials required to be provided pursuant to this Section 7.1(c), and may reasonably designate competitively-sensitive information in such materials as “outside counsel only.”
(d) Unless prohibited by applicable Law or Order or by the applicable Governmental Authority, (i) none of the Company’s views and acting reasonable and , Parent or their respective Affiliates shall participate in good faithor attend any meeting, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9or engage in any substantive conversation, direct and have principal responsibility for all aspects with any Governmental Authority in respect of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods (including with respect to any Antitrust Laws; providedof the actions referred to in Section 7.1(a)) without the other, that (ii) each of the parties Company and Parent shall (i) have the right to review in advance, and to the extent practicable each will consult give the other onreasonable prior notice of any such meeting or conversation and (iii) in the event either the Company or Parent is prohibited by applicable Law or Order or by the applicable Governmental Authority from participating or attending any such meeting or engaging in any such conversation, all the information relating to participating or attending Party shall keep the other party and its respective Subsidiariesnon-participating or non-attending, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding reasonably apprised with respect to the Transactions, thereto.
(iie) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence7.1, Parent shall, and shall takecause its Subsidiaries to, or cause to be taken, take any and all steps necessary action to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person (including in connection with the HSR Filing, the Ex-U.S. Filings, the FERC Application, the NJDEP Application, the FCC Filing and the CFIUS Notice) with respect to the transactions contemplated by this Agreement so as to enable the parties hereto Closing to consummate the Transactions occur as promptly as practicablepracticable and, and in any event event, prior to the Outside End Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, (i) the sale, divestiture, license or other disposition of such prompt use of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order best efforts to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunctionpermanent, preliminary or temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would delay, restrain, prevent, enjoin or otherwise have the effect of preventing or materially delaying the prohibit consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of transactions contemplated by this Agreement, in no event shall including (A) the proffer and agreement by Parent of its willingness to sell, lease, license or otherwise dispose of, or hold separate pending such disposition, and promptly to effect the sale, lease, license, disposal and holding separate of, such assets, rights, product lines, categories of assets or businesses or other operations or interests therein of Parent or any of its Subsidiaries be required to agree to (nor shall including, after the Closing, the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them and its Subsidiaries) (and they shallthe entry into agreements with, and submission to orders of, the relevant Governmental Authority giving effect thereto, including the entry into hold separate arrangements, terminating, assigning or modifying Contracts (or portions thereof) or other business relationships, accepting restrictions on business operations and entering into commitments and obligations) and (B) the proffer and agreement by Parent of its willingness to take such other actions, and promptly to effect such other actions (and the entry into agreements with, and submission to orders of, the relevant Governmental Authority giving effect thereto, including the entry into hold separate arrangements, terminating, assigning or modifying Contracts (or portions thereof) or other business relationships, accepting restrictions on business operations and entering into commitments and obligations), in each case if Parent so directssuch action should be necessary or advisable to avoid, agree toprevent, so long as such agreements are conditioned upon eliminate or remove the Closing)actual, anticipated or threatened (x) commencement of any actionProceeding in any forum or (y) issuance of any Order that would delay, concession restrain, prevent, enjoin or undertakingotherwise prohibit consummation of the transactions contemplated by this Agreement by any Governmental Authority, unless such action, concession or undertaking is conditioned (ii) defending through litigation on the Closingmerits any claim asserted in any court, agency or other proceeding by any Person, including any Governmental Authority, seeking to delay past the End Date, restrain, prevent, enjoin or otherwise prohibit consummation of the transactions contemplated by this Agreement and (iii) taking, in the event that any permanent, preliminary or temporary Order is entered or issued, or becomes reasonably foreseeable to be entered or issued, in any proceeding or inquiry of any kind that would make consummation of the transactions contemplated by this Agreement in accordance with its terms unlawful or that would delay past the End Date, restrain, prevent, enjoin or otherwise prohibit consummation of the transactions contemplated by this Agreement, any and all steps (including the appeal thereof and the posting of a bond) necessary to resist, vacate, modify, reverse, suspend, prevent, eliminate or remove such actual, anticipated or threatened Order so as to permit such consummation as promptly as practicable and, in any event, prior to the End Date. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to to, solely in connection with the CFIUS Notice, take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect pursuant to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industrythis Section 7.1(e) of Parent or any of its Affiliates (other than that would have a material adverse effect on the Company and its Subsidiaries), including proposing, negotiating, committing taken as a whole. Nothing in this Agreement shall obligate Parent or the Company to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license agree to any divestiture or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation remedy not conditioned on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this AgreementClosing.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Covanta Holding Corp)
Efforts. (a) Subject to the terms and conditions of this Agreement, including during the proviso to the first sentence Pre-Closing Period, each of Section 6.9(d), Parent and the Company and Parent shall (and shall cause their respective Subsidiaries to) each will use their commercially reasonable best efforts to take, or cause to be takentaken (including, in the case of the Company, by causing the other Acquired Companies to take), all actions and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing doing, all things necessary, proper or advisable under Applicable Law to consummate and make effective the transactions contemplated by this Agreement and the other Transaction Documents, including (i) obtain satisfying the conditions precedent to the obligations of any party hereto set forth in Article 9, (ii) determining whether any action by or in respect of, or filing with, any Governmental Authority or any other third party is required in connection with the consummation of the transactions contemplated by this Agreement and the other Transaction Documents, (iii) preparing and filing as promptly as practicable with any Governmental Authority or other third party all documentation to effect all necessary actionsfilings, waiversnotices, petitions, statements, registrations, submissions of information, applications and other documents, and taking any other required action and (iv) obtaining and maintaining all approvals, consents, registrations, permits, authorizations, orders, consents authorizations and approvals other confirmations required to be obtained from Governmental Authorities, the expiry or early termination of any applicable waiting periods, and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental AuthoritiesAuthority or, in order to consummate at the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver required notices or any necessary additional instruments todirection of Parent, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date.
(b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.9, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material third party that are necessary, proper or advisable to permit consummation of consummate the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of transactions contemplated by this Agreement for the filing of the notification and report forms and related material required under the HSR Act), (ii) provide or cause to be Agreement; provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto understand and agree that neither Parent nor any of its Affiliates shall be obligated to consummate the Transactions (and, without Parent’s prior to the Outside Date.
written consent, no Acquired Company shall) (c1) Subject to Applicable Lawenter into any settlement, the Company and Parent and their respective counsel shall (i) cooperate in all respects undertaking, consent decree, stipulation or agreement 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) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions and of transactions contemplated hereby, (2) unless specifically specified in this Agreement, divest, license, dispose of, transfer or otherwise hold separate (including by establishing a trust or otherwise), (3) litigate, challenge or take any material communication received or given in connection action with respect to any proceeding Action by a private any Person, in each case regarding any of the Transactions, (iii) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and including any Governmental Authority or its respective staff, on the other hand, with respect (4) agree to the Transactions. Notwithstanding do any of the foregoing, . Each of Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in promptly notify the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination other parties hereto of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or notice from any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ transactions contemplated by this Agreement or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only MaterialTransaction Documents.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this Agreement.
Appears in 1 contract
Efforts. (a) Subject to On the terms and subject to the conditions of this Agreement, Agreement (including the proviso provisions of Section 5.04 with respect to Seller’s obligations to obtain any required Authorizations or consents of third parties), Seller, on the one hand, and Purchaser, on the other hand, shall use their respective reasonable best efforts to take or cause to be taken all actions and to do or cause to be done all things necessary or appropriate to satisfy the conditions to the first sentence Closing, to consummate the transactions contemplated hereby as promptly as practicable and to comply promptly with all legal requirements that may be imposed on it or any of its Affiliates with respect to the Closing (it being understood that it shall be the sole responsibility of Purchaser and/or a legal advisor of Purchaser to file or submit the notifications, registrations and/or filings set forth in Section 5.03(c) and in items 1 and 2 of Section 6.9(d6.01(a) of the Seller Disclosure Letter (including any additional materials that may be required) with the applicable Governmental Entity).
(b) Prior to the Closing, the Company each of Seller and Parent shall (Purchaser shall, and shall cause their its respective Subsidiaries Affiliates to) each , use their its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing all things necessarynecessary or appropriate for it to do under applicable Laws prior to the Closing, proper which actions shall include the making and filing of (or advisable under Applicable Law to (icooperating in the making and filing of) obtain all necessary actions, waivers, registrations, permits, authorizations, orders, consents and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periods, and make all necessary registrations and filings (including set forth in Section 6.01(a) of the Seller Disclosure Letter and all other required registrations and filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver required notices or any necessary additional instruments to, and obtain seeking all required consentsapprovals of, waivers Governmental Entities and furnishing all information (including in connection with the notifications, registrations and/or filings set forth in items 1 and 2 of Section 6.01(a) of the Seller Disclosure Letter) required by applicable Law or requested by such Governmental Entities or the other party in connection with such registrations, filings and approvals (it being understood that it shall be the sole responsibility of Purchaser and/or a legal advisor of Purchaser to file or submit the notifications, registrations and/or filings set forth items 1 and 2 of Section 6.01(a) of the Seller Disclosure Letter (including any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date.
(b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.9, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material materials that may be requested by required) with the DOJ or FTC under the HSR Act or by applicable Governmental Entity). Each of Seller and Purchaser shall, and shall cause its respective Affiliates to, cooperate with each other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation in respect of the Transactions by the DOJ or FTC or other applicable Governmental Authoritiesmaking of such registrations, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Datefilings and approvals.
(c) Subject to Applicable LawFollowing Closing, the Company and Parent and their respective counsel shall (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) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, Seller and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting)Purchaser shall, and shall cause its respective Affiliates to, use its reasonable best efforts to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any all actions and to do, or cause to be done, all steps things necessary for it to avoid do to comply promptly and in a timely manner with (or eliminate each to facilitate the prompt and every impediment under any Antitrust Law timely compliance with) all legal requirements that may be asserted imposed on Seller or Purchaser by Governmental Entities in connection with the transactions contemplated hereby or the conduct or operation of the Business by the Purchaser following the Closing, which actions shall include the making and filing of (or cooperating in the making and filing of) the registrations and filings set forth in Section 5.03(c) of the Seller Disclosure Letter and, to the extent applicable following the Closing, in Section 6.01(a) of the Seller Disclosure Letter (and any Governmental Authority amendments, revisions or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicablefollow-up requests related thereto), and all other required registrations and filings to, and seeking all required approvals of, Governmental Entities and furnishing all information (including in any event prior connection with the notifications, registrations and/or filings set forth in Section 5.03(c) of the Seller Disclosure Letter) required by applicable Law or requested by such Governmental Entities or the other party in connection with such registrations, filings and approvals (it being understood that it shall be the sole responsibility of Purchaser and/or a legal advisor of Purchaser to file or submit the Outside Datenotifications, including proposingregistrations and/or filings set forth in Section 5.03(c) of the Seller Disclosure with the applicable Governmental Entity). Each of Seller and Purchaser shall, negotiatingand shall cause its respective Affiliates to, committing to and effecting, by consent decree, hold separate orders, or otherwise, cooperate with each other in respect of the sale, divestiture, license or other disposition making of such of its registrations, filings and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Dateapprovals.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this Agreement.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, including each of the proviso to the first sentence of Section 6.9(d), the Company and Parent parties hereto shall use (and shall cause their respective Subsidiaries toand Affiliates to use) each use their all reasonable best efforts to taketake promptly, or cause to be taken, all actions actions, and to dodo promptly, or cause to be done, and to assist and cooperate with the other parties in doing doing, all things necessary, proper or advisable under Applicable Law applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement prior to the End Date, including (i) obtain the obtaining of all necessary actionsactions or nonactions, waivers, registrationsconsents, permitsclearances, authorizations, orders, consents approvals and approvals from Governmental Authorities, the expiry expirations or early termination terminations of any applicable waiting periods, including the Specified Approvals and make the Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Authorities, if any) and take the taking of all steps as may be reasonably necessary to obtain an approval approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental AuthoritiesEntity, in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver required notices or any the obtaining of all necessary additional instruments to, and obtain required 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 Merger and the other transactions contemplated by this 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 from, Third Parties in order to consummate the Transactions as promptly as practicable transactions contemplated by this Agreement; provided, however, that in no event shall the Company or any of its Subsidiaries be required (nor, without the prior written consent of Parent, shall the Company and in any event its Subsidiaries be permitted) to pay prior to the Outside DateEffective 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 agreement or otherwise.
(b) In furtherance Subject to the terms and not conditions in limitation of this Agreement and without limiting the undertakings pursuant to this Section 6.9foregoing, each of Parent and the Company and Parent shall (and shall cause their respective Subsidiaries and Affiliates to) (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any)promptly, and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten fifteen (1015) Business Days from after the date of this Agreement for the filing of the hereof, file or cause to be filed any and all required notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or with respect to the Merger and the other transactions contemplated by other Governmental Authorities under applicable Antitrust Laws (if any) this Agreement, and (iii) as promptly as practicable, take such actions as are necessary or advisable use all reasonable best efforts to obtain prompt cause the expiration or termination of any applicable waiting period or other approval of consummation of periods under the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (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 personHSR Act, (ii) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, supply or written materials cause to be submitted to, supplied to any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) Entity as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them any additional information or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect documentary material that may be requested pursuant to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, Law or written materials (including correspondence) submitted to, any Third Party and/or any by such Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority Entity and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, 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 by this Agreement, including taking all such further action as may be necessary 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 any other Governmental Entity or Person may assert under any Law with respect to the Merger and all steps necessary the other transactions contemplated by this Agreement, and to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person Entity with respect to the Merger so as to enable the parties hereto Closing to consummate the Transactions occur as promptly as practicable, practicable after the date hereof (and in any event prior to no later than the Outside End Date), including (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, order or otherwise, the sale, divestiture, license license, hold separate or disposition of any and all of the share capital or other disposition equity voting interest, assets (whether tangible or intangible), businesses, divisions, operations, products or product lines of such Parent or its Subsidiaries or Affiliates or of the Company or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit Parent’s or its Subsidiaries’ assets(including the Surviving Corporation’s) or Affiliates’ freedom of action with respect to, properties or businesses their ability to retain, one or more of their Subsidiaries’ (including the assetsSurviving Corporation’s), properties assets (whether tangible or businesses to intangible), businesses, divisions, operations, products or product lines, in each case as may be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable required in order to satisfy the conditions to Closing or to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws Action that would otherwise have the effect of preventing or materially the Closing, delaying the consummation Closing in any material respect or delaying the Closing beyond the End Date (individually or collectively, a “Remedial Action”); provided, that neither the Company, Parent nor any of 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 to sell, divest, license, hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets (whether tangible or intangible), businesses, divisions, operations, products or product lines of the Transactions; provided thatCompany, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company their respective Affiliates, unless such requirement, condition, understanding, agreement or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are order is conditioned upon the Closing)) any action, concession occurrence of the Closing or undertaking, unless such action, concession is or undertaking is conditioned becomes effective on or after the Closing. Notwithstanding ; provided further that, notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company nothing in this Section 5.7 or any Company Subsidiaries be permitted to take) other provision of this Agreement shall require any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates to (A) waive any of the conditions set forth in Article 6 as they apply to Parent or Merger Sub or (B) agree or otherwise be required to, take any action, including any Remedial Action that, individually or in the aggregate together with one or more other than Remedial Actions, would reasonably be expected to have a material adverse effect on the business, operations or financial condition of the Parent, the Company, and their respective Subsidiaries, taken as a whole and after giving effect to the Merger (it being understood that, 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), including proposingtaken as a whole and prior to giving effect to the Merger, negotiating, committing to and effecting, by consent decree, hold separate orders(bb) any proceeds received, or otherwiseexpected 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 Company propose, negotiate, effect or agree to any Remedial Action without the prior written consent of Parent. Except as otherwise permitted under this Agreement, the saleCompany, divestitureParent and Merger Sub shall not (and shall cause their Subsidiaries and Affiliates not to) make, license or agree to make, any acquisition, or knowingly take, or agree to take, any other dispositionaction outside the ordinary course of business consistent with past practice, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, that would be reasonably likely to prevent or materially delay the Closing.
(c) The Company, Parent and Merger Sub shall cooperate and consult with each other than 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, the Company, on the one hand, and 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 by this Agreement, including promptly furnishing the other with copies of notices or other communications received by the Company or Parent, as the case may be, or any of their respective Subsidiaries or Affiliates, from any third party and/or any Governmental Entity with respect to such transactions. Subject to applicable Law relating to the exchange of information, the Company, on the one hand, and 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 the Company, P▇▇▇▇▇ and M▇▇▇▇▇ Sub agrees not to participate in any meeting or discussion, either in 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). In addition, (ii) and (iii) above, Parent shall defend through litigation on have the merits right to direct the matter that is the cause of any claim asserted such conflict or disagreement, acting reasonably and following consultation with the Company and after considering in court 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 5.7, if any administrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatened to be instituted) challenging any Governmental Authority 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 the Company, Parent and 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 any other person under Antitrust Laws in order to avoid entry of, or proceeding and to have vacated vacated, lifted, reversed or terminatedoverturned any Action, any Order (decree, judgment, injunction or other order, whether temporary, preliminary or permanent) , that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreementis in effect and that prohibits, transaction prevents or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the restricts consummation of the Transactions, or (iii) obtain all Merger and the other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Merger Agreement (L3harris Technologies, Inc. /De/)
Efforts. (a) Subject to the terms and conditions of this Agreement, Agreement (including the proviso to the first sentence of Section 6.9(d6.5(e)), the Company each of Tall Oak Parent and Parent Summit shall cooperate with one another and use (and shall cause use each of their respective commercially reasonable efforts to cause, as applicable, the Target Companies, the Tall Oak Employers, and Summit’s Subsidiaries toand controlled Affiliates to use) each use of their respective commercially reasonable best efforts to (i) take, or cause to be taken, all actions actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing all things necessarythings, proper or advisable under Applicable Law to (i) obtain all necessary actions, waivers, registrations, permits, authorizations, orders, consents and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periods, and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver required notices or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date.
(b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.9, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of cause the Transactions, conditions to the Closing to be satisfied as promptly as reasonably practicable (but and in any event no event later than ten the 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 (10) Business Days from the date of this Agreement for the filing of the notification and report forms and related material including any required or recommended filings under the HSR Actapplicable Antitrust Laws), (ii) provide or cause to be provided obtain as promptly as reasonably practicable (and in any information event no later than the Outside Date) and documentary material that may be requested by maintain all approvals, consents, clearances, expirations or terminations of waiting periods, registrations, Authorizations and other confirmations from any Governmental Authority or Third Party necessary, proper or advisable to consummate the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) transactions contemplated hereby, and (iii) as promptly as practicable, take such actions as are necessary defend any Proceedings challenging this Agreement or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of the consummation of the Transactions by the DOJ transactions contemplated hereby or FTC or other applicable Governmental Authorities, including seek to cause to be have lifted or vacated rescinded any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (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) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have adversely affecting the effect of preventing or materially delaying the consummation ability of the Transactions; provided thatParties to consummate the transactions contemplated hereby (provided, notwithstanding however, that the foregoing provisions Parties agree that the obligations of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent each Party with respect thereto shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to extend beyond the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) ); provided, further, however, that the Parties shall enter into any agreementjointly determine all tactics and strategies relating to compliance with this Section 6.5(a)(iii), transaction or any agreement subject to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain each Party undertaking good faith consultations with and considering in good faith the timely expiration or termination views of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this AgreementParties.
Appears in 1 contract
Sources: Business Contribution Agreement (Summit Midstream Corp)
Efforts. (a) Subject to the terms and conditions of this Agreement and except as otherwise expressly provided in this Agreement, including the proviso to the first sentence of Section 6.9(d)Purchaser, the Company Parent and Parent shall (Seller shall, and shall cause their respective Subsidiaries Affiliates to) each , use their respective reasonable best efforts to promptly take, or cause to be taken, all actions actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing all things necessary, proper or advisable under Applicable any applicable Law to consummate and make effective in the most expeditious manner possible the Transaction and the other transactions contemplated by this Agreement and the other Transaction Documents, including (i) obtain the preparation and filing of all necessary actions, waiversforms, registrations, permits, authorizations, orders, consents Filings and approvals from Governmental Authorities, notices required to be filed to satisfy the expiry or early termination 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 applicable waiting periodsadditional instruments necessary to consummate the Transaction and the other transactions contemplated by this Agreement 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 make all necessary registrations and filings (including filings with Governmental Authoritiesshall cause their respective Affiliates to, if any) and promptly take all steps as may be actions reasonably necessary to obtain an approval (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 waiver frommade 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 to avoid an action or proceeding byresult in not obtaining, any Governmental Authorities, in order Regulatory Approval necessary to consummate the Transactions as promptly as practicable and in any event be obtained prior to the Outside Date and (ii) deliver required notices or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside DateClosing.
(b) In furtherance Prior to the Closing, the Purchaser Parties and not in limitation Seller shall each keep the other apprised of the undertakings pursuant status of matters relating to this Section 6.9, each the completion of Parent the Transaction and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of transactions contemplated by this Agreement for and the filing of the notification other Transaction Documents and report forms consult and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (i) 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 any filing or submission with a Governmental Authority in connection with this Agreement, the Transactions Transaction and in connection with any investigation or the other inquiry transactions contemplated by or before a Governmental Authority relating this Agreement and the other Transaction Documents. Subject to the TransactionsConfidentiality Agreements and Section 5.4, including each Party shall promptly inform the other Parties, and if in writing, furnish the other Parties with copies of (or, in the case of oral communications, advise the other Parties orally of) any proceeding initiated communication received by a private personsuch Party or any of its Affiliates or Representatives from any Governmental Entity regarding the Transaction and the other transactions contemplated by this Agreement, (ii) have and permit the right other Parties to review and discuss in advance, and consider in good faith the views of the other Parties in connection with, any proposed communication with any such Governmental Entity. If any 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 Transaction or the other transactions contemplated by this Agreement and the other Transaction Documents, then such Party will make, or cause to be made, promptly and after consultation with the other Parties, an appropriate response in compliance with such request. None of Parent, Purchaser or Seller, or any of their respective 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 the extent practicable each shall consult not prohibited by such Governmental Entity, gives the other onParties the opportunity to attend and participate thereat. Subject to the Confidentiality Agreements and Section 5.4, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with each Party shall furnish the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other Parties with copies of all correspondence, filings correspondence and written communications Filings (and memoranda setting forth the substance thereof) between them it or their Subsidiaries any of its Affiliates or AffiliatesRepresentatives, on the one hand, and any Governmental Authority or its respective staffEntity, on the other hand, with respect to this Agreement and the Transactions. Notwithstanding Transaction or the foregoing, Parent shall, following consultation with other transactions contemplated by this Agreement and the Company and after giving due consideration to the Company’s views and acting reasonable and in good faithother Transaction Documents, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult furnish the other on, all the Parties with such necessary information relating to and reasonable assistance as the other party and its respective Subsidiaries, as the case Parties may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority reasonably request in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other its preparation of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect Filings to any in-person discussion or meeting)such Governmental Entity. Parent, Purchaser and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent Seller may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 Agreement as “Antitrust Counsel Only Material.outside counsel only” Notwithstanding anything (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 contrary 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 Section 6.9, materials provided to the other party or its counsel Agreement may be redacted (i) to remove references concerning the valuation of or future plans for the Acquired Companies 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 attorney-client or other privilege or confidentiality 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 undertakings of Parent pursuant to Section 6.9(a) foregoing, and Section 6.9(b)with the exceptions noted below, but subject to the proviso to this sentencePurchaser shall, Parent and shall takecause its Affiliates to, or cause to promptly take all action as may be taken, any and all steps reasonably necessary to avoid or eliminate each and every impediment under any Antitrust applicable Law that may be asserted with respect to the transactions contemplated hereby and by the other Transaction Documents and to resolve such objections, if any, as any Governmental Authority Entity or any other Person may assert under any applicable Law with respect to the transactions contemplated hereby, so as to enable the parties hereto Closing to consummate the Transactions occur as promptly soon as practicable, reasonably possible (and in any event so as to enable the Closing to occur prior to the Outside Date). Notwithstanding the foregoing, including proposing, negotiating, committing the Purchaser Parties shall not be required to (i) 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 orders, or otherwise, the to any sale, divestiture, license lease, license, transfer, disposition or other disposition encumbering by the Seller Entities of any assets of the Business or to any agreement by any of the Seller Entities to take any of the foregoing actions), nor (ii) 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 (by acquisition or otherwise), any such of its and its Subsidiaries’ assets, properties or 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 assetsforegoing actions set forth above in this Section 5.1(d) with respect to any Business Brand(s) that in the aggregate contributed less than $50 million in aggregate revenue to the Business for the preceding twelve (12) month period ending on the date of this Agreement. Notwithstanding anything to the contrary set forth in this Agreement, properties the Purchaser Parties shall not be required to defend, contest, resist, or businesses to be acquired by Parent pursuant heretoparticipate in any Proceeding or investigation, and entering into such other arrangements, as are necessary whether judicial or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry ofadministrative, or to effect the dissolution oftake any action to have vacated, lifted, reversed or overturned any injunctionJudgment, temporary restraining order whether temporary, preliminary or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreementpermanent, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall connection with the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (transactions contemplated by this Agreement and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closingother Transaction Documents. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent Seller and its Affiliates shall not be required obligated to take (nor shall the Company or any Company Subsidiaries be permitted agree or commit to take) take any action with respect (i) that is not conditioned on the Closing or (ii) that relates to Parent any assets or any Affiliate businesses of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood Seller; and in the private equity industry) of Parent no event shall Seller or any of its Affiliates (other than be required to be the Company licensing, selling, divesting, leasing, transferring, disposing or encumbering party under any such agreements, and, in any case, Seller and its Subsidiaries)Affiliates shall have no direct or indirect obligation or Liability in respect of any such agreements, transactions or relationships, including proposingany indemnification obligations, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company for which Seller and its Subsidiaries). In addition, Parent shall defend through litigation on Affiliates are not fully indemnified by the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside DatePurchaser Parties.
(e) Neither Parent nor Merger Sub Each of the 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 (nor 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 Subsidiary than the fees of Parentand 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 enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: deemed not satisfied solely as a result of (i) the failure to obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the TransactionsApproval, (ii) avoid the entry ofany such termination, the commencement default, acceleration or loss of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactionsbenefit, or (iii) any Proceeding commenced or threatened by or on behalf of any Person arising out of or relating to the failure to obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation any such Approval or any of the Transactions foregoing. For the avoidance of doubt, Seller’s and its Affiliates’ obligations under this Section 5.1 shall be subject in accordance with all respects to the terms and conditions applicable provisions of this AgreementSection 2.10.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of this Agreement, including the proviso to the first sentence of Section 6.9(d), the Company and Parent shall (and shall cause their respective Subsidiaries to) each use their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing doing, all things necessary, proper or advisable under Applicable Law to consummate and make effective the Transactions as promptly as practicable and in any event prior to the End Date, including (i) obtain the obtaining of all necessary actions, waivers, registrations, permits, authorizations, orders, consents and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periods, and make the making of all necessary registrations and filings (including filings with Governmental Authorities, if any) and take the taking of all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver the delivery of required notices or any necessary additional instruments to, and obtain the obtaining of required consentsconsents or waivers from, waivers or Third Parties and (iii) the execution and delivery of any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable Merger and in any event prior to fully carry out the Outside Datepurposes of this Agreement.
(b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.96.10, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any or other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of the any notification and report forms and related material required under the HSR ActAct except by mutual consent confirmed in writing), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, use their reasonable best efforts to take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior . Parent shall pay all filing fees payable pursuant to the Outside DateHSR Act or other applicable Antitrust Laws (if any).
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (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) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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, (iiiii) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iviii) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the The Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. 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 without the prior written consent of the other. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 6.10 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.96.10, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, Company and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this Agreement.
Appears in 1 contract
Efforts. From the date hereof until the earlier of the Preferred Stock Closing and the date that this Agreement is terminated pursuant to Section 9.1, the Investor and the Company shall (a) Subject promptly file any and all Notification and Report Forms required under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the “HSR Act”), with respect to the terms transactions contemplated hereby, and conditions use commercially reasonable efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (b) use commercially reasonable efforts to cooperate with each other in (i) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, or expirations or terminations of waiting periods are required to be obtained from, any other Governmental Entities in connection with the execution and delivery of this AgreementAgreement and the consummation of the transactions contemplated hereby and (ii) timely making all such filings and timely obtaining all such consents, including permits, authorizations, waivers, clearances, approvals, expirations or terminations; (c) use commercially reasonable efforts to 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; (d) promptly inform the proviso other party of any substantive meeting, discussion, or communication with any Governmental Entity (and supply to the first sentence other party any written communication or other written correspondence or memoranda prepared for such purpose, subject to applicable Laws relating to the exchange of Section 6.9(d)information) in respect of any filing, investigation or inquiry concerning the Company transactions contemplated hereby, and Parent shall consult with the other party in advance of, and to the extent permitted by such Governmental Entity, give the other party the opportunity to attend and participate in, such meeting, discussion or communication; and (and shall cause their respective Subsidiaries toe) each use their commercially reasonable best efforts to take, or cause to be taken, all other actions and to do, or cause to be done, and to assist and cooperate with the all other parties in doing all things necessary, proper or advisable under Applicable Law to (i) obtain consummate the Closings and the transactions contemplated hereby, including taking all such further action as may be necessary actions, waivers, registrations, permits, authorizations, orders, consents and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periods, and make all necessary registrations and filings (including filings with Governmental Authoritiesto resolve such objections, if any) and take all steps , as may be reasonably necessary to obtain an approval the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or waiver from, competition authorities of any other nation or to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver required notices other jurisdiction or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date.
(b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.9, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required other person may assert under the HSR Act and any other applicable Antitrust Laws Law with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (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) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactionstransactions contemplated hereby. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere nothing in this Agreement shall be deemed to require the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent Investor or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or enter into any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by agreement with any Governmental Authority or any other person under Antitrust Laws in order to avoid entry ofEntity, or to have vacated consent to any authorization, consent or terminatedapproval of any Governmental Entity, any Order (whether temporary, preliminary or permanent) that would prevent requiring the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction Investor or any agreement of its Affiliates to effect any transaction (including any merger hold separate or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry ofdivest, or to effect restrict the dissolution dominion or control of, any injunction, temporary restraining order of its assets or other Order that would prevent businesses or materially delay the consummation any of the Transactionsstock, assets or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation business of the Transactions in accordance with Investor, the terms and conditions Company or any of this Agreementtheir Affiliates.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, including each of the proviso to the first sentence of Section 6.9(d), the Company and Parent Parties shall use (and shall cause their respective Subsidiaries toand controlled Affiliates to use) each use their respective reasonable best efforts to taketake promptly, or cause to be taken, all actions actions, and to dodo promptly, or cause to be done, and to assist and cooperate with the other parties Parties in doing doing, all things necessary, proper or advisable under Applicable Law applicable Laws to (i) obtain all necessary actions, waivers, registrations, permits, authorizations, orders, consents and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periods, consummate and make all necessary registrations effective the Merger and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the other Contemplated Transactions as promptly as practicable and in any event prior to the Outside Date 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 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 or 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 Proceedings, whether judicial or administrative, challenging this Agreement or challenging, hindering, impeding, interfering with or delaying the consummation of the Merger and the other Contemplated Transactions, 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 and delivery of any additional instruments necessary to consummate the Contemplated Transactions; provided, that in no event shall the Company or any of its Subsidiaries 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 Contemplated Transactions under any contract or agreement or otherwise.
(b) Subject to the terms and conditions in this Agreement and without limiting the foregoing, the Company and Parent shall (and shall cause their respective Subsidiaries and controlled Affiliates to) (i) promptly, but in no event later than twenty-five (25) Business Days after the date hereof, file or cause to be filed any and all required notification and report forms under the HSR Act with respect to the Merger and the other Contemplated Transactions and (ii) deliver required notices or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions 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 event prior applicable waiting periods under the HSR Act and the other Required Approvals; provided, 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 Outside DateCompany or its Affiliates only from and after the Effective Time in the event that the Closing occurs. Parent may not (x) commit to or agree with any Governmental Entity to voluntarily stay, toll or extend any applicable HSR Act waiting period or review period, (y) enter into any timing agreement with any Governmental Entity, or (z) pull and refile any filing under the HSR Act or any other applicable Antitrust Law or Foreign Investment Law, without the Company’s prior written consent.
(bc) In furtherance and not in limitation of the undertakings pursuant to this Section 6.9foregoing, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (iSubsidiaries and controlled Affiliates) 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) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any all other actions and do, or cause to be done, all steps other things necessary, proper or advisable to consummate and make effective the Merger and the other Contemplated Transactions, by taking all such further action as may be necessary to resolve such objections, and to avoid or eliminate each and every impediment impediment, in each case, under any Foreign Investment Law or Antitrust Law that may be asserted by any Governmental Authority the United States Federal Trade Commission (“FTC”), the Antitrust Division of the United States Department of Justice (“DOJ,” and together with the FTC, the “U.S. Antitrust Agencies”), state antitrust enforcement authorities, or any other Governmental Entity or Person with respect to the Merger and the other Contemplated Transactions so as to enable the parties hereto Closing to consummate the Transactions occur as promptly as practicable, practicable after the date hereof (and in any event prior to no later than the Outside End Date), including (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, and 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”), (ii) proposing, negotiating, committing to, effecting, agreeing to and effectingexecuting, by consent decree, settlement, undertaking, stipulations, hold separate ordersorder, binding agreement with a third part(ies) or otherwise, the sale, divestiture, license transfer, license, hold separate or disposition of any and all of the share capital or other disposition equity voting interests, assets (whether tangible or intangible), businesses, divisions, operations, products or product lines of such Parent (including its Subsidiaries and Affiliates) and of the Company (including 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 would limit Parent’s (including its Subsidiaries’, Affiliates’, and the Surviving Corporation’s) freedom of action with respect to, or their ability to retain, 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 Corporation) or the Company (and its Subsidiaries’ assets), properties in each case so as to satisfy the conditions to the Closing or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order order in any Legal Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing the Closing or materially delaying the consummation of Closing beyond the Transactions; provided that, notwithstanding End Date (each such action in the foregoing provisions clauses (ii), (iii) and (iv), individually or collectively, a “Remedial Action”); 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 this Section 6.9(d) or any other provision of this AgreementParent; provided, in no event shall further, that neither Parent or nor any of its Subsidiaries Affiliates shall be required to become subject to, or consent or agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to otherwise take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to any Remedial Action, unless such Remedial Action is binding on or otherwise applicable to Parent or its Affiliates only from and after the Effective Time in the event that the Closing occurs.
(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 Affiliate other actions pursuant to this Section 6.7(d), and, subject to applicable legal limitations and the instructions of any Governmental Entity, the Company, on the one hand, and Parent and Merger Sub, on the other hand, shall keep each other apprised of the status of matters relating to the completion of the Contemplated Transactions, including promptly furnishing the other with copies of notices or other communications provided to or received by or on behalf of the Company or Parent, as the case may be, or any of their respective Subsidiaries or Affiliates, from any third party and/or any Governmental Entity with respect to the Contemplated Transactions. Subject to applicable Law relating to the exchange of information, the Company, on the one hand, and Parent and Merger Sub, on the other hand, shall permit 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 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 the Company, P▇▇▇▇▇ and M▇▇▇▇▇ Sub agrees not to participate in any meeting or discussion, either in 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.
(e) 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 contained in this Section 6.7, if any administrative or judicial action or proceeding, including any affiliated investment funds proceeding by a Governmental Entity or by a private party, is instituted (or threatened to be instituted) challenging, hindering, impeding, interfering with or delaying any Contemplated Transactions, in each case, as violative of any Law, each of the Company, Parent and 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 Legal 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 Merger and the other 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 portfolio company 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 term 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 commonly understood protected by attorney-client privilege.
(i) In furtherance of and not in limitation of the private equity industryobligations 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 any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisitionAcquired Companies) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: have a material adverse effect on Parent and its Affiliates (i) obtain other than the timely expiration or termination of Acquired Companies), taken as a whole (for this purpose, measured as if Parent and its Affiliates, taken as a whole, were the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry size of, and with the commencement of litigation seeking the entry financial profile of, or to effect Parent, its Affiliates and the dissolution ofAcquired Companies, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or taken as a whole).
(iiij) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions For purposes of this AgreementSection 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 of this Agreementherein provided, including the proviso to the first sentence of Section 6.9(d)Parent, Merger Sub and the Company shall, and Parent shall (and each of them shall cause their respective Subsidiaries to) each , use their commercially reasonable best efforts to promptly take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing all things necessary, proper or advisable under Applicable Law this Agreement and applicable Laws to consummate and make effective as promptly as practicable after the Agreement Date the transactions contemplated by this Agreement, including (i) obtain preparing as promptly as practicable all necessary actionsapplications, notices, petitions, filings, ruling requests, and other documents and to obtain as promptly as practicable all consents, waivers, licenses, orders, registrations, approvals, permits, authorizationsrulings, ordersauthorizations and clearances necessary or advisable to be obtained from any Governmental Entity for, consents and approvals from Governmental Authoritiesby or on behalf of any Person in order to consummate the transactions contemplated by this Agreement (collectively, the expiry or early termination of any applicable waiting periods, and make all necessary registrations and filings (including filings with “Governmental Authorities, if anyApprovals”) and take (ii) as promptly as practicable taking all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any all such Governmental Authorities, in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver required notices or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date.
(b) Approvals. In furtherance and not in limitation of the undertakings pursuant to this Section 6.9foregoing, each of Parent Parent, Merger Sub and the Company shall, and each of them shall cause their respective Subsidiaries to, (iA) prepare make appropriate and file complete filings of all applicable Notification and Report Forms pursuant to the HSR Act with respect to the transactions contemplated hereby within ten (10) Business Days after the date of this Agreement, and (B) make all other required filings pursuant to other Antitrust Laws with respect to the transactions contemplated hereby as promptly as practicable. Parent and Merger Sub shall not extend any notification waiting period under the HSR Act or any other Antitrust Law, nor enter into any agreement with the United States Federal Trade Commission (the “FTC”) or the United States Department of Justice (the “DOJ”) or any other Governmental Entity not to consummate the transactions contemplated by this Agreement, except with the prior written consent of the Company (which shall not be unreasonably withheld, conditioned or delayed). During the initial waiting period and report forms any extensions of the initial waiting period consented to by the Company, each Party shall supply as promptly as practicable any additional information or documentation that may be requested pursuant to the HSR Act or any other Antitrust Law and related material required use commercially reasonable efforts to take all other actions necessary, proper or advisable to cause the expiration or termination of the applicable waiting periods under the HSR Act and any other applicable Antitrust Laws with respect to Law as soon as possible. (b) Parent, Merger Sub and the Transactions (if any)Company shall, and any additional filings or notifications and related material that are necessaryeach of them shall cause their respective Subsidiaries to, proper or advisable in connection with the actions referenced in Section 5.4(a) to permit consummation of obtain all Governmental Approvals for the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of transactions contemplated by this Agreement for the filing of the notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by any other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall use commercially reasonable 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) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this Agreement.
Appears in 1 contract
Efforts. Each Dragged Member or Tagging Member (a) Subject each an “Article 8 Seller”), whether in such Person’s capacity as a Member, equityholder, officer, director or employee of the Company, shall, to the terms and conditions of this Agreementmaximum extent permitted by Law, including the proviso to the first sentence of Section 6.9(d), the Company and Parent shall (and shall cause their respective Subsidiaries to) each use their reasonable best efforts to take, or cause to be taken, take all actions and to docustomary, necessary or cause to be done, and to assist and cooperate with the other parties in doing all things necessary, proper or advisable under Applicable Law to (i) obtain all necessary actions, waivers, registrations, permits, authorizations, orders, consents and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periods, and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, desirable in order to consummate the Transactions as promptly as practicable expeditiously any Article 8 Transaction and any related transactions, including executing, acknowledging and delivering any applicable equity purchase agreement, merger agreement, consents, assignments, waivers, releases, letters of transmittal, and other documents or instruments necessary (including a release of claims, furnishing information and copies of documents, filing applications, reports, returns, filings and other documents or instruments with governmental authorities) and otherwise reasonably cooperate with any Drag-Along Seller, Tag-Along Seller, Tag-Along Purchaser or Drag-Along Purchaser, in any event prior each case, subject to the Outside Date applicable terms of Section 8.9 and (ii) deliver required notices or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate Section 8.10. Without limiting the Transactions as promptly as practicable and in any event prior to the Outside Date.
(b) In furtherance and not in limitation generality of the undertakings pursuant to this Section 6.9, each of Parent and the Company shall foregoing:
(i) prepare each Article 8 Seller shall, on a several and file not joint basis (in accordance with its pro rata portion (determined based on the respective proceeds payable to each Article 8 Seller in connection with such Article 8 Transaction in accordance with Section 6.4) (the “Pro Rata Share”)): (A) make customary individual fundamental representations and warranties as to (1) such Article 8 Seller’s own organization, (2) such Article 8 Seller’s power, authority, capacity and legal right to enter into and consummate the transactions contemplated by any notification applicable agreement to which such Article 8 Seller becomes party, (3) the unencumbered title to such Article 8 Seller’s Units (other than encumbrances arising under this Agreement or pursuant to U.S. federal and report forms and related material required under the HSR Act state (and any other applicable Antitrust Laws jurisdiction) securities laws, (4) the absence of any conflict with respect to such Article 8 Seller’s Units or the Transactions Transfer thereof to the extent such conflict limits its ability to enter into and consummate the transactions contemplated by any applicable agreement to which such Article 8 Seller becomes a party and (if any5) the binding effect and enforceability of any applicable agreement to which such Article 8 Seller becomes a party; and (B) provide customary indemnification with respect to a breach thereof (taking into account the limitations set forth in Section 8.11(a)(v) other than with respect to preceding prongs (2) and (3), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Act), ;
(ii) provide subject to Section 8.11(a)(v), each Article 8 Seller shall, on a several and not joint basis (in accordance with its Pro Rata Share), be liable (whether by transaction expenses, purchase price adjustment, escrows, indemnity payments or cause to be provided as promptly as reasonably practicable any information other similar items) in respect of representations, warranties, covenants and documentary material that may be requested by agreements made in respect of the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) Company and its Subsidiaries;
(iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation none of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel Article 8 Sellers shall (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) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)A) any actionnon-compete, concession non-solicitation, non-disparagement or undertaking, unless such action, concession or undertaking is conditioned on other similar restrictive covenants (other than confidentiality obligations that are no more restrictive than the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement confidentiality obligations applicable to the contraryTag-Along Seller or the Drag-Along Sellers (as applicable) or (B) any restrictive covenants that bind any portfolio company of any Fund Investor;
(iv) none of the Article 8 Sellers shall be liable for any individual representation, Parent warranty, covenant or other agreements made by any other Article 8 Seller or the Tag-Along Seller or the Drag-Along Sellers, as applicable; and
(v) the aggregate liability of each Article 8 Seller shall not in no event exceed the proceeds received (taking into account any amounts in escrow) by such Article 8 Seller in connection with such Article 8 Transaction. Further, no Article 8 Seller will be required to take (nor shall the Company bear more than its Pro Rata Share of any escrows, holdbacks, adjustments or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Dateindemnification obligations.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this Agreement.
Appears in 1 contract
Sources: Limited Liability Company Agreement (BridgeBio Pharma, Inc.)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, including each of the proviso to the first sentence of Section 6.9(d), the Company and Parent parties hereto shall (and shall cause their respective Subsidiaries to) each use their reasonable best efforts to promptly take, or cause to be taken, all actions actions, and to promptly do, or cause to be done, and to assist and cooperate with the other parties in doing doing, all things necessary, proper or advisable under Applicable Law applicable Laws to consummate and make effective the Offer, the Merger and the other transactions contemplated by this Agreement in the most expeditious manner reasonably practicable after the date hereof and in any event prior to the End Date, including (i) obtain causing all of the Offer Conditions and all of the conditions to the Closing set forth in Article 7 to be satisfied, (ii) the obtaining and maintaining of all necessary actions or non-actions, waivers, consents, clearances, approvals and expirations or terminations of waiting periods (including the Specified Approvals) from Governmental Entities and the making of all necessary registrations, permits, authorizations, orders, consents and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periods, and make all necessary registrations notifications and filings (including filings with Governmental Authorities, if any) and take the taking of all steps as may be reasonably necessary to obtain an approval approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental AuthoritiesEntity, in order to consummate (iii) the Transactions as promptly as practicable obtaining and in maintaining of all necessary consents, approvals or waivers from third parties, (iv) the defending of any event prior to Actions, lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the Outside Date consummation of the Offer, the Merger and the other transactions contemplated by this Agreement and (iiv) deliver required notices or any necessary additional instruments to, the execution and obtain required consents, waivers or delivery of any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and transactions contemplated by this Agreement; provided, however, that in no event shall the Company or any event of its Subsidiaries be required to pay prior to the Outside DateEffective 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 agreement or otherwise.
(b) In furtherance The parties hereto shall, and not in limitation of the undertakings pursuant shall cause their respective Affiliates to, use reasonable best efforts to this Section 6.9, each of Parent and the Company shall (i) prepare cooperate with each other in (A) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and file any notification and report forms and related material expirations or terminations of waiting periods are required under the HSR Act and any other applicable Antitrust Laws to be obtained from, or with respect to, any third parties or Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby (including in connection with the Specified Approvals) and (B) promptly making all such filings and timely obtaining all such consents, permits, authorizations, waivers, clearances, approvals or expirations or terminations of waiting periods, (ii) supply to the Transactions (if any), and any Governmental Entity as promptly as practicable any additional filings information or notifications documents that may be requested pursuant to any Law or by such Governmental Entity and related material that are (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 permit consummation of consummate and make effective the Transactionstransactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections or resist or contest any Action, if any, as any federal or state antitrust enforcement authorities or any other Governmental Entity or other Person may assert or bring under any applicable Law (including any Antitrust and Foreign Investment Law) with respect to the transactions contemplated hereby (including in connection with the Specified Approvals), and to avoid or eliminate each and every impediment under any Law (including any Antitrust and Foreign Investment Law) that may be asserted by any Governmental Entity with respect to the Offer, the Merger or the other transactions contemplated by this Agreement so as to enable the Closing to occur as promptly as practicable after the date hereof, including (x) proposing, negotiating, committing to, agreeing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, license, hold separate or disposition of any and all of the equity interests, assets (whether tangible or intangible), products or businesses of Parent or its Subsidiaries or of the Company or its Subsidiaries, (y) otherwise taking or committing to take any actions that after the Closing Date would limit Parent’s or its Subsidiaries’ (including the Surviving Corporation’s) freedom of action with respect to, or their ability to retain or hold, directly or indirectly, one or more of their Subsidiaries’ (including the Surviving Corporation’s), equity interests, assets (whether tangible or intangible), products, or businesses, including any agreement to provide notice to or obtain prior approval from any Governmental Entity of or for any future transaction, or (z) creating, terminating or divesting relationships, ventures, contractual rights or obligations of Parent or its Subsidiaries or the Company or its Subsidiaries; provided that neither 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 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 Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on or otherwise applicable to the Company or its Subsidiaries only from and after the Effective Time in the event that 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 practicable (but likely to prevent or materially delay the Closing. In the event that any information in no event later than ten (10) Business Days the filings submitted pursuant to this Section 6.7 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 date applicable Governmental Entity to withhold such information from public view. Neither Parent, Merger Sub nor any of their Subsidiaries shall withdraw any registrations, applications, declarations, reports, submissions or other filings with, or any notices to, any Governmental Entity relating to the Offer, the Merger and the other transactions contemplated by this Agreement, or enter into any timing agreement or agreement not to consummate the Offer, the Merger or the other transactions contemplated by this Agreement for any period of time, without the filing Company’s prior written consent.
(c) Between the date hereof and the earlier of the notification Effective Time and report forms the Termination Date, Parent and related Merger Sub shall not, and shall not permit any of their respective Subsidiaries to, enter into or consummate any agreement for an acquisition (by stock purchase, merger, consolidation, asset purchase, license or otherwise) that would reasonably be expected to (x) prevent, materially impair or materially delay the obtaining of, or result in not obtaining or adversely affect in any material required under respect the HSR Act)ability of Parent or its Affiliates to procure, (ii) provide any authorizations, consents, orders, declarations or cause to be provided as promptly as reasonably practicable approvals of any information and documentary material that may be requested by Governmental Entity or the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period necessary to consummate the Offer, the Merger or the other approval 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 Transactions Offer, the Merger or the other transactions contemplated by this Agreement, or of the DOJ or FTC or other applicable Governmental Authorities, including to cause failure to be lifted or vacated satisfied of any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Dateconditions set forth in Section 7.1.
(cd) Subject to Applicable LawThe Company, the Company and Parent and their respective counsel Merger Sub shall (i) cooperate in all respects and consult with each other in connection with any filing or submission with a Governmental Authority in connection with the Transactions making of all registrations, filings, notifications, communications, submissions 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) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received fromactions pursuant to this Section 6.7, or given toand, subject to applicable legal limitations, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or AffiliatesCompany, on the one hand, and any Governmental Authority or its respective staffParent and Merger Sub, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects shall keep each other apprised of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination status of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications (or, if not in writing, advise the other party and its respective Subsidiariesorally of such notices or communications) received by the Company or Parent, as the case may be, that appears in or any filing made withof their respective Subsidiaries or Affiliates, or written materials (including correspondence) submitted to, from any Third Party third party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding Entity with respect to such transactions. Without limiting Parent’s obligations under this Section 6.7, Parent shall have the Transactionsright to control the development and implementation of any strategy with respect to obtaining consents, clearances, authorizations and orders from any Governmental Entity and approvals pursuant to applicable Antitrust and Foreign Investment Laws, including (i) the process and strategy for responding to any formal or informal request for additional information and documents, (ii) promptly inform each other of the content of, and analysis contained in, any material communication filings, notifications or communications (whether written or oral) with any other material correspondence Governmental Entity or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other whether to extend or restart the waiting, review or investigation period under any applicable Antitrust and Foreign Investment Laws; provided that Parent shall consult with copies and consider in good faith the views of all correspondencethe Company prior to making any decisions with respect to such strategy. Subject to applicable Law relating to the exchange of information, filings and written communications between them or their Subsidiarythe Company, on the one hand, and any Governmental Authority or its respective staffParent and Merger Sub, on the other hand, with respect shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the Transactions. The parties shall (views of the other party in connection with, any proposed notifications or filings and any written communications or submissions, and with respect to any in-person discussion such notification, filing, written communication or meeting)submission, and shall to the extent practicable (with respect any documents submitted therewith to any telephonic discussion or meeting)Governmental Entity; provided, provide the other party and its counsel with advance notice of however, that Parent and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material materials provided to the other under this Section 6.9 6.7(d) as “Antitrust 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 6.96.7, materials provided pursuant to the other party or its counsel this Section 6.7 may be redacted (x) to remove references concerning the valuation of the Acquired Companies 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 attorney-client or other privilege or confidentiality concerns. Each of the Company, ▇▇▇▇▇▇ and ▇▇▇▇▇▇ Sub agrees not to participate in any meeting or discussion, in 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, 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 undertakings covenants of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and contained in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything including in this Section 6.9 6.7, if any administrative or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company judicial Action or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parentproceeding, including any affiliated investment funds proceeding by a private party, is instituted (or threatened to be instituted) challenging any portfolio company (transaction contemplated by this Agreement as violative of any Law, each of the Company, Parent and Merger Sub shall reasonably cooperate with each other and shall use their respective reasonable best efforts to contest and resist any such term is commonly understood in the private equity industry) of Parent Action or proceeding and to have vacated, lifted, reversed or overturned any of its Affiliates (other than the Company and its Subsidiaries)Action, including proposing, negotiating, committing to and effecting, by consent decree, hold separate ordersjudgment, or otherwise, the sale, divestiture, license injunction or other dispositionorder, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Offer, the Merger and the other transactions contemplated by this Agreement.
(f) that would prevent Except as otherwise set forth in this Agreement, including this Section 6.7, nothing contained in this Agreement shall give Parent, Merger Sub, or any of its Affiliates, directly or indirectly, the Closing occurring right to control, supervise or direct the operations of the Company or any business thereof prior to the Outside Closing Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable . Prior to the Transactions, (ii) avoid the entry ofClosing Date, the commencement of litigation seeking the entry ofCompany shall exercise, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance consistent with the terms and conditions of this Agreement, complete unilateral control, supervision and direction over the Company and its business operations.
Appears in 1 contract
Efforts. (a) 6.9.1 Subject to the terms and conditions of this Agreement, including each of the proviso to the first sentence of Section 6.9(d), the Company Parties shall cooperate with each other and Parent shall each use (and shall cause their respective Subsidiaries toto use) each use their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other parties Party in doing doing, all things necessary, proper or advisable reasonably necessary under Applicable Law to consummate the Merger as promptly as practicable, including (i) obtain the obtaining of all necessary actions, waivers, registrations, permits, authorizations, orders, consents and approvals from Governmental AuthoritiesEntities, the expiry or early termination of any applicable waiting periods, and make the making of all necessary registrations and filings (including filings with Governmental AuthoritiesEntities, if any) and take all the taking of such reasonable steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding a Proceeding by, any Governmental AuthoritiesEntities, in order (ii) the delivery of required notices to, and the obtaining of required consents or waivers from, Third Parties, and (iii) the execution and delivery of any additional instruments reasonably necessary to consummate the Transactions as promptly as practicable Merger and in any event prior to fully carry out the purposes of this Agreement; provided, however, that the Company shall not be permitted to pay, and Parent shall not be obligated to pay or permit or agree to the Outside Date and Company paying, any material cash consideration to any Third Party from whom consent or approval is required (ii) deliver required notices or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order other than filing fees payable to consummate the Transactions as promptly as practicable and in any event prior to the Outside DateGovernmental Entities).
(b) 6.9.2 In furtherance and not in limitation of the undertakings pursuant to this Section 6.9, each of Parent and the Company shall (i) promptly and in any event within 30 Business Days of the date hereof prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactionsobtain SARB Approval, (ii)
(A) submit, as promptly as reasonably practicable (but and in no any event later than ten (10) within 30 Business Days from of the date of this Agreement for hereof, to CFIUS a draft joint voluntary notice under Exon-▇▇▇▇▇▇ with respect to the filing of the notification and report forms and related material required under the HSR Act)Merger, (iiB) provide or cause to be provided as promptly as reasonably practicable thereafter, file with CFIUS a final joint voluntary notice, and (C) supply any additional information and documentary information or material that may be requested in connection with the CFIUS review process within the amount of time allowed by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) CFIUS, and (iii) as promptly as practicablecooperate with the other Parties in connection with any such filings or notifications, take such actions as are necessary and in connection with resolving any investigation or advisable to obtain prompt expiration or termination other inquiry of any applicable waiting period Governmental Entity in relation to such filings or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authoritiesnotifications, including to cause to be lifted the U.S. Department of Justice or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable U.S. Federal Trade Commission under the parties hereto to consummate the Transactions prior to the Outside DateHSR Act.
(c) 6.9.3 Subject to Applicable LawLaw relating to the exchange of information, the Company and Parent and their respective counsel shall (i) cooperate in all respects with each other in connection with determining whether any action by or in respect of, or filing or submission with a with, any Governmental Authority Entity is required, in connection with the Transactions consummation of the Merger and in connection with seeking any investigation such actions, consents, approvals or other inquiry by waivers or before a Governmental Authority relating to the Transactions, including making any proceeding initiated by a private personsuch filings, (ii) have furnish to each other all information required for any application or other filing under the right to review in advance, rules and to the extent practicable each shall consult the other on, regulations of any material filing made with, or written materials to be submitted to, any Governmental Authority Applicable Law in connection with the Transactions and of any material communication received or given transactions contemplated by this Agreement (including in connection with any proceeding by a private Person, in each case regarding any of the TransactionsCFIUS Clearance), (iii) as provide each other with a reasonable advance opportunity to review and comment upon and consider in good faith the views of the other in connection with all written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party relating to proceedings under the HSR Act or in connection with CFIUS Clearance) with a Governmental Entity in connection with the transactions contemplated hereby, (iv) promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, any Governmental Entity in connection with the DOJ or the FTC or any other applicable Governmental Authority transactions contemplated hereby, and (ivv) as promptly as practicable furnish each other with copies of all material correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority Entity or its respective staff, on the other hand, with respect to the Transactionstransactions contemplated hereby. Notwithstanding the foregoing, The Company and Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting)practicable, provide the other party Party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority Entity in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Materialtransactions contemplated hereby (including in connection with CFIUS Clearance).”
6.9.4 Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentenceelse contained herein, Parent and its Subsidiaries shall take, or and cause to be taken, any and all steps necessary to avoid or eliminate each and every any impediment under any Antitrust Applicable Law that may be asserted by any a Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicableEntity with respect to, and in any event prior to satisfy all conditions to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwiseconsummation of, the saleMerger; provided, divestiturehowever, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by that neither Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or nor any of its Subsidiaries shall be required to, and the Company shall not, without the prior written consent of Parent, (x) in connection with efforts to obtain the expiry or early termination of any applicable waiting period (or any extensions thereof) under the HSR Act or to obtain SARB Approval, offer, propose, agree or commit (i) to sell, divest, hold separate, license, cause a Third Party to acquire or otherwise dispose of (nor shall A) any of the respective Affiliates of the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this Agreement.or
Appears in 1 contract
Sources: Agreement and Plan of Merger (Stillwater Mining Co /De/)
Efforts. (a) Subject to Each of the terms Company, Parent and conditions of this Agreement, including the proviso to the first sentence of Section 6.9(d), the Company and Parent Merger Sub shall (and shall cause their use its respective Subsidiaries to) each use their reasonable best efforts to (and will cause its Subsidiaries to) (i) take, or cause to be taken, all actions appropriate action and to do, or cause to be done, and to assist and cooperate with the other parties Parties in doing doing, all things necessary, proper or advisable under Applicable applicable Law or otherwise to (i) obtain all necessary actions, waivers, registrations, permits, authorizations, orders, consents and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periods, consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as practicable; (ii) take all necessary registrations and filings such actions (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary required to obtain an approval or waiver from, or cause the expiration of the notice periods under Competition Laws with respect to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the Transactions such transactions as promptly as practicable and in any event prior to after the Outside Date and execution of this Agreement; (iiiii) deliver required notices or any necessary additional instruments to, and (I) obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable (A) from any Governmental Entity any and in any event prior to the Outside Date.
(b) In furtherance all consents, notices, licenses, permits, waivers, approvals, authorizations, Orders, registrations, rulings and not in limitation of the undertakings pursuant to this Section 6.9, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material clearances required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested obtained by Parent, Merger Sub or the DOJ Company, or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (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) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as to effect the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions Closing as promptly as practicable, and in any event prior to the Outside Date, and to avoid any action or proceeding by any Governmental Entity or any other Person, in connection with the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, including proposingthe Merger, negotiatingand (B) from any Third Party any and all consents, committing notices, licenses, permits, waivers, approvals, authorizations and registrations that are required to and effectingbe obtained or made by Parent, by consent decree, hold separate ordersMerger Sub or the Company, or otherwiseany of their respective Subsidiaries, in connection with the transactions contemplated by this Agreement, and 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; and (II) prepare and file as promptly as practicable all documentation to effect all necessary applications, notices, petitions, filings, ruling requests, and other documents necessary to obtain the consents, approvals and other deliverables set forth in clauses (A) and (B) above, and take all reasonable steps as may be necessary to obtain all such consents, approvals and other deliverables; (iv) cause the satisfaction of all conditions to the Merger set forth in Article 6, 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; and (vii) 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 to Governmental Entities in connection therewith, with respect to this Agreement and the Merger required under any other applicable Law, provided that all filing fees to Governmental Entities related to the filings by the Parties under any Competition Laws shall be borne fifty percent (50%) by the Company and fifty percent (50%) by Parent, and (III) supply any additional information and documentary material that may be requested by any Governmental Entity. In furtherance and not in limitation of the foregoing, (x) Parent shall, after good faith consultation with the Company, determine whether any filings under the HSR Act are required to be made in order to consummate the Merger and the other transactions contemplated by this Agreement, and shall notify the Company in writing of such determination and the reasoning supporting such determination (“HSR Filing Notice”) within fifteen (15) Business Days of the date of this Agreement; and (y) to the extent Parent determines that any filings under the HSR Act are necessary, the saleParties shall as promptly as reasonably practicable thereafter make appropriate filings with the United States Federal Trade Commission (“FTC”) and the United States Department of Justice (“DOJ”) pursuant to the HSR Act with respect to the Merger (and, divestiturein any event, license within fifteen (15) Business Days after the date of the HSR Filing Notice). Notwithstanding anything to the contrary herein, the Company shall not be required prior to the Effective Time to pay any consent or other disposition 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 such any Contract), or the provision of its and its Subsidiaries’ assets, properties additional security (including a guaranty) or businesses otherwise incur or assume or agree to incur or assume any liability that is not conditioned upon the consummation of the assetsMerger, properties to obtain any consent, waiver or businesses approval of any Person (including any Governmental Entity) under any Contract.
(b) In furtherance and not in limitation of the provisions of Section 5.5, Parent acknowledges and agrees that its obligation to use reasonable best efforts to take, or cause to be acquired taken, all appropriate action and 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 Law or otherwise to consummate and make effective the Merger and the other transactions contemplated by Parent pursuant heretothis Agreement includes (A) selling or otherwise disposing of, or holding separate and agreeing to sell or otherwise dispose of, specific assets or categories of assets or areas of business of the Company; (B) terminating any existing relationships and contractual rights and obligations of the Company; (C) amending or terminating such existing licenses or other Intellectual Property agreements and entering into such new licenses or other arrangementsIntellectual Property agreements (and, as are necessary in each case, entering into agreements with the relevant Governmental Entity giving effect thereto); (D) making any behavioral commitments with respect to the Company’s assets or advisable in order ability to avoid conduct the entry ofbusiness of the Company or its operations, and the commencement of litigation seeking the entry ofdivisions, businesses, or to effect the dissolution of, any injunction, temporary restraining order product lines or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or with any of its Subsidiaries be required customers; and (E) entering into agreements, including with the relevant Governmental Entities, giving effect to agree to the foregoing clauses (nor shall A) through (D); provided, however, the Company or shall not take any Company Subsidiaries be permitted to agree unless Parent so directs them action set forth in the foregoing clauses (and they shallA) through (E) without Parent’s prior written consent; provided, if Parent so directsfurther, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding that notwithstanding anything in this Section 6.9 5.5 to the contrary, nothing in this Section 5.5 shall require any Party or any of their respective Subsidiaries to take, or cause to be taken, any action with respect to their respective assets, businesses or Subsidiaries (i) that is not conditioned upon the Merger, or (ii) that would reasonably be expected to have (A) a material and adverse impact on the reasonably expected benefits to Parent or Merger Sub (or their respective Affiliates) of completing the transactions contemplated hereby or (B) a material adverse effect on the business, financial condition or results of operations of the Company and its Subsidiaries, taken as a whole. Notwithstanding anything to the contrary in this Agreement, nothing in this Section 5.5 or elsewhere in this Agreement to the contrary, shall require Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted agree to take) take any action with respect to Parent any of its Affiliates (other than Merger Sub, the Company and its Subsidiaries) or any Affiliate of Parentits direct or indirect equityholders, including any affiliated investment funds sale, transfer, license, separate holding, divestiture or other disposition of, or to any prohibition of or any limitation on the acquisition, ownership, operation, effective control or exercise of full rights of ownership, or other modification of rights with respect to any assets, rights, products, licenses, businesses, operations, or interest therein, of any such Affiliates or any direct or indirect portfolio company companies (as such term is commonly understood in the private equity industry) of Parent investment funds advised or any of its managed by one or more Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate direct or indirect equityholders of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside DateParent.
(ec) Neither Each of Parent nor Merger Sub and the Company agrees that, between the date of this Agreement and the Effective Time, each of Parent and the Company shall not (nor any other Subsidiary of Parentand shall cause their respective Subsidiaries and Affiliates not to) shall enter into or consummate any agreement, transaction or any agreement to effect any transaction agreements (including with respect to any merger equity investments, joint ventures, acquisitions, mergers, consolidations or acquisitionbusiness combinations) that which would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the applicable waiting period under the HSR Act, Act or the authorizations, consents, Orders and receipt of any required approvals required or consents under any other applicable Antitrust Law, applicable Competition Laws with respect to the Transactionstransactions contemplated by this Agreement.
(d) Without limiting the generality of anything contained in this Section 5.5, 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 Merger or any of the other transactions contemplated by this Agreement, (ii) avoid keep the entry ofother Parties notified as to the status of any such request, the commencement of litigation seeking the entry ofinquiry, or to effect the dissolution ofinvestigation, any injunction, temporary restraining order action or other Order that would prevent or materially delay the consummation of the TransactionsProceeding, or (iii) obtain all promptly notify the other authorizations, consents, Orders and approvals Parties of any substantive oral or written communication to or from any Governmental Authorities necessary for Entity regarding the consummation Merger or any of the Transactions other transactions contemplated by this Agreement; and (iv) promptly provide to the other Parties copies of any substantive 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 accordance good ▇▇▇▇▇ ▇▇▇▇▇ advisable and necessary, designate any commercially or competitively sensitive material provided to the other under this Section 5.5 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 terms other Parties with respect to and conditions provide any necessary information and assistance as the other Parties may reasonably request with respect to all substantive notices, submissions, or filings made by such Party with any Governmental Entity or any other substantive information supplied by such Party to, or substantive correspondence with, a Governmental Entity in connection with this Agreement or any transactions contemplated by this Agreement and will permit the other Parties, to the extent practicable, to review and discuss in advance and consider in good faith the views of the other Parties in connection with any substantive filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with the Merger or any of 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 5.12, in connection with or related to the Merger 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 substantive 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 substantive document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation, action or other Proceeding. Parent and the Company shall be mutually responsible for all substantive communications with any applicable Governmental Entity; and all strategic and timing decisions regarding the HSR Act and any other applicable Competition Laws; provided that in the event of any disagreement between the Parties, Parent (and its advisors) and the Company (and its advisors) shall seek to resolve such disagreement reasonably and in good faith, provided, further, that if the Parties cannot resolve any such disagreement, the determination of Parent shall prevail.
Appears in 1 contract
Sources: Merger Agreement (DENNY'S Corp)
Efforts. (a) Subject to Each of the terms and conditions of this Agreement, including the proviso to the first sentence of Section 6.9(d), the Company and Parent parties hereto shall (and shall cause their respective Subsidiaries to) each use their all reasonable best efforts to taketake promptly, or cause to be taken, all actions actions, and to dodo promptly, or cause to be done, and to assist and cooperate with the other parties in doing doing, all things necessary, proper or advisable under Applicable Law applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as practicable after the date hereof and in any event prior to the End Date, including (i) obtain the obtaining of all necessary actionsactions or nonactions, waivers, registrationsconsents, permitsclearances, authorizationsapprovals, orders, consents non-objections and approvals from Governmental Authorities, the expiry expirations or early termination terminations of any applicable waiting periods, including the Specified Approvals and make the Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Authorities, if any) and take the taking of all steps as may be reasonably necessary to obtain an approval approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental AuthoritiesEntity, in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver required notices or any the obtaining of all necessary additional instruments to, and obtain required consents, approvals, non-objections 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 Merger or the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and transactions contemplated by this Agreement; provided, however, that in no event shall the Company or any event of its Subsidiaries be required to pay prior to the Outside DateEffective Time any fee, penalty or other consideration to any third party for any consent or approval required for or triggered by this Agreement or the consummation of the transactions contemplated hereby under any contract or agreement or otherwise.
(b) In furtherance and not in limitation None of the undertakings pursuant Company, Parent, or Merger Sub shall unilaterally and voluntarily approach CFIUS with respect to the Merger or the other transactions contemplated by this Section 6.9Agreement. In the event that any party receives a request from CFIUS to file a notification with respect to the transaction (“CFIUS Request”), each of the party receiving such request must promptly provide written notice or request to all other parties.
(c) Subject to the terms and conditions herein provided and without limiting the foregoing, the Company, Parent and the Company Merger Sub shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any)promptly, and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) 10 Business Days from after the date of this Agreement for the filing of the hereof, file any and all required notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or with respect to the Merger and the other transactions contemplated by other Governmental Authorities under applicable Antitrust Laws (if any) this Agreement, and (iii) as promptly as practicable, take such actions as are necessary or advisable use all reasonable best efforts to obtain prompt cause the expiration or termination of any applicable waiting period or other approval of consummation periods under the HSR Act, (ii) if a CFIUS Request has occurred, promptly, but in no event later than 15 Business Days after the date of the Transactions by the DOJ or FTC or other applicable Governmental AuthoritiesCFIUS Request, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior file a joint voluntary notice with CFIUS with respect to the Outside Date.
Merger and the other transactions contemplated by this Agreement, (ciii) Subject use all reasonable best efforts to Applicable Law, the Company and Parent and their respective counsel shall (i) cooperate in all respects with each other in connection with promptly making any filing other filings required to be made with, or submission with a timely obtaining all such consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods required to be obtained from, any third parties or Governmental Authority Entities in connection with the Transactions execution and in connection with any investigation or other inquiry by or before a Governmental Authority relating to delivery of this Agreement and the Transactions, including any proceeding initiated by a private person, (ii) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any consummation of the Transactionstransactions contemplated hereby, (iii) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) supply to any Governmental Entity as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them any additional information or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect documents that may be requested pursuant to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, Law or written materials (including correspondence) submitted to, any Third Party and/or any by such Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority Entity and (iiiv) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, 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 hereby, including taking all such further action as may be necessary 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, competition authorities of any other nation or other jurisdiction, CFIUS (if applicable), or any other Person may assert under any Antitrust Law or Exon-▇▇▇▇▇▇ (if applicable) with respect to the transactions contemplated hereby, and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law or Exon-▇▇▇▇▇▇ (if applicable) that may be asserted by any Governmental Authority or any other Person Entity with respect to the Merger so as to enable the parties hereto Closing to consummate the Transactions occur as promptly as practicable, practicable after the date hereof (and in any event prior to no later than the Outside End Date), including (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, order or otherwise, the sale, divestiture, license license, hold separate or other disposition of such of its and its Subsidiaries’ assets, properties any assets or businesses of Parent or its Subsidiaries or Affiliates or of the Company or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit Parent's or its Subsidiaries' (including the Surviving 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 Corporation's) businesses, product lines or assets, properties or businesses to in each case as may be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable required in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws Action that would otherwise have the effect of preventing or materially the Closing, delaying the consummation of Closing or delaying the TransactionsClosing beyond the End Date; provided thatthat neither Parent, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or Company nor any of its their respective Subsidiaries shall be required to become subject to, or consent or agree to (nor shall 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 Parent, the Company or any Company of their respective Subsidiaries be permitted to agree or Affiliates, unless Parent so directs them (and they shallsuch requirement, if Parent so directscondition, agree tounderstanding, so long as such agreements are agreement or order is conditioned upon the Closing).
(d) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent and its Subsidiaries and Affiliates shall not be required to, and the Company and its Subsidiaries shall not be required to and, without the prior written consent of Parent shall not, take any action, or agree to any condition or limitation contemplated in this Section 5.6, that would, or would reasonably be expected to, have a material adverse effect on (nor shall i) the business, results or operations, EBITDA, or financial condition of either (x) Parent and its Subsidiaries or (y) the Company or any Company and its Subsidiaries be permitted (in each case of (x) and (y), measured on a scale relative to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), taken as a whole) or (ii) the benefits or advantages Parent expects to receive from the Merger and the other transactions contemplated by this Agreement.
(e) 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 contemplated by Section 5.4 or this Section 5.6, and, subject to applicable legal limitations and the instructions of any Governmental Entity, the Company, on the one hand, and 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 proposingpromptly furnishing the other with copies of any notices or other communications received by the Company or Parent, negotiating, committing to and effecting, by consent decree, hold separate ordersas the case may be, or otherwiseany of their respective Subsidiaries or Affiliates, from any third party and/or any Governmental Entity with respect to such transactions. Subject to applicable Law relating to the exchange of information, the saleCompany, divestitureon the one hand, license or and Parent and Merger Sub, on the other dispositionhand, shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the assetsother party in connection with, properties any proposed notifications or filings and any written or oral 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 Parent or any Affiliate of Parent (in each case, other than 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. In additionEach of the Company, Parent shall defend through litigation on the merits and Merger Sub agrees not to participate in any claim asserted meeting or discussion, either in court person or by telephone, with any Governmental Authority 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.
(f) 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 this Agreement or any transaction contemplated by this Agreement as violative of any Law, each of the Company, Parent and Merger Sub shall cooperate in all respects with each other person under Antitrust Laws in order and shall use all their respective reasonable best efforts to avoid entry of, contest and resist any such Action or proceeding and to have vacated vacated, lifted, reversed or terminatedoverturned any Action, any Order (decree, judgment, injunction or other order, whether temporary, preliminary or permanent) , that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreementis in effect and that prohibits, transaction prevents or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the restricts consummation of the Transactions, or (iii) obtain all Merger and the other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of transactions contemplated by this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Interactive Intelligence Group, Inc.)
Efforts. (a) Subject Except with respect to the matters set forth in Section 6.15, which shall be governed by the terms and conditions of Section 6.15, or otherwise as subject to the terms and conditions of this Agreement, including each of the proviso Parties agrees to the first sentence of Section 6.9(d)use its respective reasonable best efforts, the Company and Parent shall (and shall cause their respective Subsidiaries to) each use their reasonable best efforts cooperate fully with the other Parties, to take, or cause to be taken, all actions actions, to file, or cause to be filed, all documents and to do, or cause to be done, and to assist and cooperate with the other parties in doing all things necessary, proper or advisable under Applicable Law this Agreement and applicable Laws to consummate the Transactions as promptly as practicable, including using its reasonable best efforts to: (i) obtain all necessary actionsactions or nonactions, licenses, permits, orders, notifications, clearances, waivers, registrations, permits, authorizations, ordersexpirations or terminations of waiting periods, consents clearances, Consents and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periods, Entities and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action any Action, injunction or proceeding by, any Governmental AuthoritiesEntity, including in order connection with any Regulatory Law; (ii) defend any Actions challenging this Agreement or the consummation of the Transactions; and (iii) execute and deliver any notification or additional instruments necessary to consummate this Agreement and the Transactions.
(b) The Parties shall use reasonable best efforts to promptly obtain, and to cooperate with each other to promptly obtain, all necessary authorizations, approvals, clearances, consents, actions or non-actions of any Governmental Entity. 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 Company or the SPAC 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 and in any event prior to the Outside Date and (ii) deliver required notices or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and but in any event prior to the Outside Date.
(b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.9, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper all action necessary or advisable to permit 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 promptly may be necessary to permit the lawful consummation of the Transactions on or prior to the Outside Date and except as would have or would reasonably practicable be expected to materially and adversely affect the Company, following Closing. The Company and the SPAC 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.
(but in no event later than ten (10c) Business Days from Without limiting the date generality of the rest of this Agreement for the filing Section 6.3, each of the notification and report forms and related material required under the HSR Act)Parties shall cooperate, (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (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 and shall, subject to applicable Law and reasonable confidentiality considerations, as promptly as reasonably practicable (i) furnish to the Transactions, including any proceeding initiated by a private person, other such necessary information and reasonable assistance as the other Party may reasonably request in connection with the foregoing; (ii) have promptly notify and inform the right 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 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 the Company and the transactions contemplated thereby and (B) as necessary to comply with contractual arrangements. Each Party shall, subject to applicable Law, permit counsel for the other Parties a reasonable opportunity to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate consider in good faith with Parent and Merger Sub the views of the other Parties in the parties’ efforts to obtain connection with, any clearanceproposed written communication, approvaldraft filing, waiver correspondence or expiry or early termination of any applicable waiting periods with respect submission to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry Entity in connection with the Transactions. The Company and Parent mayEach Party agrees not to participate, as each deems advisable and necessarynor permit any of its Affiliates or their respective Representatives to participate, reasonably designate in any competitively sensitive material provided meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the Transactions, unless it consults with the other Parties in advance and, to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9extent not prohibited by such Governmental Entity, materials provided to gives the other party or its counsel may be redacted Parties the opportunity to remove references concerning the valuation of the Acquired Companies attend and as necessary to address reasonable attorney-client or other privilege or confidentiality concernsparticipate.
(d) In furtherance of the undertakings of Parent 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 Section 6.9(a) this Agreement shall be held by the receiving Party and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicableits Representatives in accordance with, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwiseshall be subject to, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable confidentiality obligations set forth in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside DateSection 6.4.
(e) Neither Parent nor Merger Sub (nor During the Interim Period, the Parties shall not, and shall not permit any other Subsidiary of Parent) shall enter into their Affiliates to, knowingly take any agreementaction that could prevent, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent materially delay or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay impede the consummation of the TransactionsTransaction.
(f) In case, at any time after the Closing, any further action is necessary or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for desirable to carry out the consummation of the Transactions in accordance with the terms and conditions purposes of this Agreement, the proper officers and directors of each Party shall use their reasonable best efforts to take all such action.
Appears in 1 contract
Sources: Business Combination Agreement (dMY Squared Technology Group, Inc.)
Efforts. (a) Subject to the terms and conditions of this Agreement, including the proviso to the first sentence of Section 6.9(d), the Company and Parent shall (and shall cause their respective Subsidiaries to) each party will use their its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing all things necessary, proper or advisable under Applicable Law applicable laws and regulations to consummate the Merger and the other transactions contemplated by this Agreement as soon as practicable after the date hereof, including, without limitation, (i) 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 applications, notices, petitions, filings, and other documents and to obtain as promptly as practicable all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits, and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate the Merger or any of the other transactions contemplated by this Agreement (including the financing thereof) and (ii) taking all steps as may be necessary to obtain all necessary actionssuch waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, ordersorders and approvals; provided, consents however, that efforts in connection with the Financing and approvals from Governmental Authoritiesthe Required Indebtedness, other than notices and applications with State Regulators required in connection with the expiry or early termination of any applicable waiting periodsFinancing and the Required Indebtedness, shall be governed by Section 7.11 and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver required notices or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date.
(b) not this Section 7.3. In furtherance and not in limitation of the undertakings foregoing, each party hereto agrees (A) to make an appropriate filing of a Notification and Report Form pursuant to this Section 6.9, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, transactions contemplated hereby as promptly as reasonably practicable (but practicable, and in no any event later than ten (10) Business Days from within 40 calendar days after the date execution of this Agreement for the filing of the notification Agreement, and report forms and related material required under the HSR Act), (ii) provide or cause to be provided supply as promptly as reasonably practicable any additional information and documentary material that may be requested by pursuant to the DOJ HSR Act and to take all other actions necessary to cause the expiration or FTC termination of the 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 by other Governmental Authorities agreement termination proposals with the Team Telecom Agencies and DSS, (E) to file in a timely manner all notifications and filings required under any foreign antitrust laws, including, if applicable Antitrust Laws (if any) and (iii) the EUMR, as promptly as practicable, take such actions (F) to file, as are necessary promptly as practicable, all appropriate filings, notices, applications, agreement termination proposals, or similar notifications or documents required or advisable in order to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation such approvals of the Transactions by Team Telecom Agencies, DSS, and any 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 DOJ or FTC or other applicable Governmental AuthoritiesCompany, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside DateCFIUS.
(cb) Subject Each of Parent and the Company shall, in connection with the efforts referenced in Section 7.3(a) to Applicable Lawobtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits, and authorizations for the transactions contemplated by this Agreement under the HSR Act, the Company and Parent and their respective counsel shall Communications Act, the Cable Landing License Act, or any other Regulatory Law (as defined below), (i) cooperate in all respects and consult with each other in connection with any communication, 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 Transactionsinquiry, including any proceeding initiated by a private personparty, 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) have the right to review in advance, and to the extent practicable each shall consult promptly inform the other onparty 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 material filing made withother Governmental Entity or, or written materials to be submitted to, any Governmental Authority in connection with any proceeding by a private party, with any other person, including by promptly providing copies to the Transactions other party of any such written communications, and of any material communication received or given in connection with any proceeding by a private Personparty, in each case regarding any of the Transactionstransactions contemplated by this Agreement, and (iii) as promptly as practicablepermit the other party to review any communication it gives to, inform and consult with each other in advance of any material communication (or any other material correspondence or memoranda) received frommeeting substantive telephone call, or given toconference with the DOJ, the DOJ FTC, FCC, or such other Governmental Entity or other person, and to the FTC extent permitted by the DOJ, the FTC, the FCC, or any other applicable Governmental Authority 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 (ivD) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one handnecessary to address reasonable privilege concerns, and any Governmental Authority or its respective staff, on the other hand, to remove personal and confidential information provided in connection with respect to the TransactionsCFIUS and/or FOCI review. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material to be provided to the other under this Section 6.9 7.3(b) as “Antitrust Counsel Only Material.” Notwithstanding anything Such materials and the information contained therein shall be given only to the contrary 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 this Section 6.9advance from the source of the materials (Parent or the Company, materials provided to as the other party case may be) or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision legal counsel. For purposes of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall “Regulatory Law” means the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall▇▇▇▇▇▇▇ Act, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwiseamended, the sale▇▇▇▇▇▇▇ Act, divestitureas amended, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, the Federal Trade Commission Act, as amended, the Communications Act, the DSS FOCI mitigation requirements, the Cable Landing License Act, and all other national, federal or state, domestic or foreign, if any, statutes, rules, regulations, orders, decrees, administrative and judicial doctrines and other laws that are designed or intended to (i) prohibit, restrict or regulate actions having the authorizationspurpose or effect of monopolization or restraint of trade, consentsaffecting competition or market conditions through merger, Orders and approvals required under any acquisition or other applicable Antitrust Law, applicable to the Transactionstransaction or effectuating foreign investment, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactionsregulate telecommunications businesses, or (iii) obtain all other authorizationsprohibit, consents, Orders restrict or regulate foreign investment. In furtherance and approvals of Governmental Authorities necessary for the consummation not in limitation of the Transactions in accordance with covenants of the terms and conditions of this Agreement.parties contained in
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of this Agreement, including the proviso to the first sentence of Section 6.9(d), the Company and Parent shall (and shall cause their respective Subsidiaries to) each use their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing doing, all things necessary, proper or advisable reasonably necessary under Applicable Law to consummate the Merger, including (i) obtain the obtaining of all necessary actions, waivers, registrations, permits, authorizations, orders, consents and approvals from Governmental AuthoritiesEntities, the expiry or early termination of any applicable waiting periods, and make the making of all necessary registrations and filings (including filings with Governmental AuthoritiesEntities, if any) and take all the taking of such reasonable steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding Proceeding by, any Governmental AuthoritiesEntities, in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver the delivery of required notices or any necessary additional instruments to, and obtain the obtaining of required consents, consents or waivers or any additional instruments necessary from, Third Parties in order and (iii) the execution and delivery of any additional instruments reasonably necessary to consummate the Transactions as promptly as practicable Merger and in any event prior to fully carry out the purposes of this Agreement; provided, however, that the Company shall not be permitted to pay, and Parent shall not be obligated to pay or permit or agree to the Outside DateCompany paying, any material cash consideration to any Third Party from whom consent or approval is required and the Company shall not modify or enter into any Company Material Contract or Company Real Property Lease or limit or dispose of any non-cash rights, assets or properties, and Parent shall not be obligated to permit or agree to the Company’s modification or entrance into any Company Material Contract or Company Real Property Lease or, on behalf of itself or any of its pre-Closing Affiliates, modify or enter into any agreement or limit or dispose of any non-cash rights, assets or properties, in each case pursuant to this Section 6.08(a) or any provision that cross-references the proviso to this Section 6.08(a).
(b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.96.08, each of Parent and the Company shall (i) promptly prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any)Laws, and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of the notification Merger and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside DateAct.
(c) Subject to Applicable LawLaw relating to the exchange of information, and the sole right of Parent to make the final determination on behalf of the parties on all strategy and tactics for obtaining clearances under the HSR Act and other Antitrust Laws, the Company and Parent and their respective counsel shall (i) cooperate provide each other with a reasonable advance opportunity to review and comment upon and consider in all respects with each good faith the views of the other in connection with all written communications (including any filing analyses, presentations, memoranda, briefs, arguments, opinions and proposals made or submission submitted by or on behalf of any party hereto relating to proceedings under the Antitrust Laws) with a Governmental Authority Entity 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 persontransactions contemplated hereby, (ii) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, any Governmental Entity in connection with the DOJ or the FTC or any other applicable Governmental Authority transactions contemplated hereby and (iviii) as promptly as practicable furnish each other with copies of all material correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority Entity or its respective staff, on the other hand, with respect to the Transactionstransactions contemplated hereby. Notwithstanding the foregoing, The Company and Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting)practicable, provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority Entity in respect of any filing, investigation or other inquiry in connection with the Transactionstransactions contemplated hereby. The Company and Parent parties may, as each deems they deem advisable and necessary, reasonably designate any competitively sensitive material materials provided to the other under this Section 6.9 6.08(c) as “Antitrust Counsel Only Materialoutside counsel only.” Notwithstanding anything Such materials and the information contained therein shall be given only to the contrary in this Section 6.9, materials provided to the other party or its outside counsel may be redacted to remove references concerning the valuation and previously-agreed outside economic consultants of the Acquired Companies recipient and as necessary will not be disclosed by such outside counsel or outside economic consultants to address reasonable attorney-client employees, officers, or other privilege or confidentiality concernsdirectors of the recipient without the advance written consent of the party providing such materials.
(d) In furtherance Notwithstanding anything else contained herein, Parent shall not be required to, and the Company shall not, without the prior written consent of Parent, offer, propose, agree, or commit (i) to sell, divest, hold separate, license, cause a Third Party to acquire, or otherwise dispose of (A) any of the undertakings respective Affiliates of the Company or Parent pursuant to Section 6.9(aor (B) any of the respective operations, divisions, businesses, product lines, customers, assets, properties or rights of Parent, the Company or any of their respective Affiliates (clauses (A) and Section 6.9(b(B) collectively, the “Divestiture Assets”), but subject prior to, contemporaneously with or after the Closing and regardless as to whether a Third Party purchaser must be identified or approved prior to the Closing (a “Divestiture”), (ii) to take any other actions that may limit Parent’s, its Affiliates’, the Company’s or its Affiliates’ conduct in any way or any of the foregoing’s freedom of action with respect to, or ability to retain, one or more of its operations, divisions, businesses, products lines, customers, assets, properties or rights (a “Restraint”) or (iii) to enter into any Order, consent decree or other agreement to effectuate a Divestiture or Restraint, except that, solely to the extent necessary to permit the consummation of the Merger to occur before the End Date, Parent shall use reasonable best efforts to satisfy the condition set forth in Section 7.01(c) by agreeing to and implementing or committing to implement (1) sales, licenses or divestitures to Third Parties (x) of Divestiture Assets that were used to generate, or contributed to the generation of, annual gross revenues that do not exceed $50,000,000 in the aggregate for all such sales, licenses and divestitures (determined based on gross fiscal 2015 revenues) and (y) that do not require Parent to convey any value to any Third Party other than the sales, licenses or divestitures of such Divestiture Assets as specified in clause (x) and reasonable and customary transition support or similar agreements of limited duration relating to such sales, licenses or divestitures (provided that any such transition support or similar agreement shall only be required to be agreed to by Parent to the extent it reflects arm’s-length and fair market value terms as determined by Parent in good faith) and (2) Restraints that would not have, and would not be reasonably expected to have, more than a de minimis effect on Parent, the Company and their respective Subsidiaries.
(e) Subject to the proviso to this sentenceSection 6.08(a), Parent the Company shall use its reasonable best efforts to take, or cause to be taken, any all reasonable actions and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate ordersdo, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses cause to be acquired by Parent pursuant heretodone, and entering into such other arrangementsall things reasonably necessary, as are necessary proper or advisable in order to avoid obtain the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding consents reasonably requested by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the TransactionsParent; provided that, notwithstanding that the foregoing provisions of this Section 6.9(d) Company shall not take any action to solicit or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall obtain such consents unless and until the Company or any Company Subsidiaries be permitted the Company’s counsel is directed to agree unless do so by Parent so directs them (or Parent’s counsel and they shall, if Parent so directs, agree to, so long as such agreements are conditioned then only upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Datebasis so requested.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this Agreement.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions herein provided, each of this Agreement, including the proviso parties hereto agrees to the first sentence of Section 6.9(d), the Company and Parent shall (and shall cause their respective Subsidiaries to) each use their its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing all things necessary, proper or advisable under Applicable Law to (i) obtain all necessary actions, waivers, registrations, permits, authorizations, orders, consents and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periods, consummate and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the Transactions effective as promptly as practicable the Mergers and to cooperate with each other in any event prior connection with the foregoing, including using reasonable best efforts to the Outside Date and (ii) deliver required notices or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date.
(b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.9, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration any necessary consents, approvals, orders, exemptions and authorizations by or termination from any public or private third party, including, without limitation, any that are required to be obtained under any federal, state or local Law or any Contract to which the Company, Hospitality or any Paired Entities Subsidiary is a party or by which any of any applicable waiting period their respective properties or assets are bound, to defend all lawsuits or other approval of legal proceedings challenging this Agreement or the consummation of the Transactions Mergers, to effect all necessary registrations and Antitrust Filings, including, but not limited to, filings under Antitrust Law, if any, and to make submissions of information requested by the DOJ or FTC or other applicable a Governmental AuthoritiesEntity, including and to use its reasonable best efforts to cause to be lifted or vacated rescinded any restraint, injunction Order or other legal impediment to any order adversely affecting the ability of the Transactions, so as to enable the parties hereto to consummate the Transactions prior Mergers; provided that Parent, MergerCo 1 and MergerCo 2 shall not be required or obligated (and nothing contained in this Section 7.3 or this Agreement shall require or obligate Parent, MergerCo 1 or MergerCo 2) to effect or agree to effect any sale, divestiture or disposition or any other action that limits its freedom of action with respect to, or its ability to retain, any businesses, services or assets of the Outside DatePaired Entities (or their respective Subsidiaries), or, effective as of the Effective Time, the Company Surviving Corporation or the Hospitality Surviving Corporation (or their respective Subsidiaries), or any interests therein.
(cb) Subject to Applicable Law, the Company and Parent and their respective counsel shall (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) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere contained in this Agreement to the contrary, nothing in this Section 7.3 or any other provision of this Agreement shall require Parent shall not be required or any of its Subsidiaries to take (nor shall the Company or any Company Subsidiaries be permitted agree to take) take any action with respect to Parent or its affiliates (including the Blackstone Sponsor, Starwood Capital Group Holdings, L.P. and any Affiliate of Parent, including any affiliated investment funds or investment vehicles affiliated with, or managed or advised by, the Blackstone Sponsor, Starwood Capital Group Holdings, L.P. or any portfolio company (as such term is commonly understood in the private equity industry) or investment of the Blackstone Sponsor or Starwood Capital Group Holdings, L.P. or of any such investment fund or investment vehicle), other than the Paired Entities or other Paired Entities Subsidiaries or the Company Surviving Corporation or the Hospitality Surviving Corporation (or their respective Subsidiaries). In no event shall the Company, Hospitality or any Paired Entities Subsidiaries propose, negotiate, effect or agree to any action contemplated by this Section 7.3 without the prior written consent of Parent.
(c) The Paired Entities shall notify Parent, promptly of (i) any communication from any person alleging that the consent of such person (or another person) is or may be required in connection with the transactions contemplated by this Agreement (and the response thereto from the Paired Entities, the Paired Entities Subsidiaries or their Representatives), (ii) any communication from any Governmental Entity in connection with the transactions contemplated by this Agreement (and the response thereto from the Paired Entities, the Paired Entities Subsidiaries or their Representatives), (iii) any material Legal Actions threatened or commenced against or otherwise affecting any of the Paired Entities or the Paired Entities Subsidiaries that are related to the transactions contemplated by this Agreement or (iv) any event, change, occurrence, circumstance or development between the date of this Agreement and the Effective Time which causes or is reasonably likely to cause the conditions set forth in Sections 8.2(a) and 8.2(b) of this Agreement not to be satisfied; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement and shall not limit or otherwise affect the remedies available hereunder to the party receiving such notice.
(d) Parent shall notify the Company promptly of (i) any communication from any person alleging that the consent of such person (or another person) is or may be required in connection with the transactions contemplated by this Agreement (and the response thereto from Parent or its Representatives), (ii) any communication from any Governmental Entity in connection with the transactions contemplated by this Agreement (and the response thereto from Parent or its Representatives), or (iii) any event, change, occurrence, circumstance or development between the date of this Agreement and the Effective Time which causes or is reasonably likely to cause the conditions set forth in Sections 8.3(a) and 8.3(b) of this Agreement not to be satisfied; provided, however, that no such notification shall affect the representations, warranties, covenants or agreements of the parties or the conditions to the obligations of the parties under this Agreement and shall not limit or otherwise affect the remedies available hereunder to the party receiving such notice.
(e) Notwithstanding anything to the contrary in this Agreement, in connection with obtaining any consents in connection with the transactions contemplated by this Agreement from any person (i) without the prior written consent of Parent, none of the Paired Entities or any Paired Entities Subsidiary shall pay or commit to pay to such person whose approval or consent is being solicited any cash or other consideration, make any commitment or incur any liability or other obligation and (ii) none of Parent or any of its Affiliates (affiliates shall be required to pay or commit to pay to such person whose approval or consent is being solicited any cash or other than consideration, make any commitment or incur any liability or other obligations. In the Company event that any party fails to obtain any such consent, the parties shall use their commercially reasonable efforts to minimize any adverse effect upon a Paired Entity, Parent and its Subsidiaries), including proposing, negotiating, committing to their respective affiliates and effecting, by consent decree, hold separate ordersbusinesses resulting, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that which would reasonably be expected to prevent result, after the Effective Time, from the failure to obtain such consent.
(f) The delivery of any notice pursuant to Section 7.3(c) or materially delay Parent’s Section 7.3(d) shall not limit or Merger Sub’s ability to: (i) obtain otherwise affect the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable remedies available hereunder to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this Agreementparty receiving such notice.
Appears in 1 contract
Efforts. (a) Subject to On the terms and subject to the conditions of this Agreement, each party shall use its reasonable best efforts to cause the Closing to occur as promptly as practicable, including the proviso 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 first sentence Closing. Each party hereto shall not take, and shall prevent their respective Affiliates from taking, any actions that would, or that would reasonably be expected to, result in the failure of any of the conditions set forth in Article II. This Section 6.9(d5.04(a) shall not apply to: (i) the actions of the parties addressed by Section 5.04(c); (ii) the actions of the parties addressed by Section 5.04(e) through Section 5.04(i); or (iii) the actions of the parties addressed by Section 5.10(b).
(b) Without limiting the generality of the foregoing and except as required to consummate the transactions contemplated in this Agreement, Buyer will not take, and shall prevent its Affiliates from taking, any action, including incurring any indebtedness, issuing any securities or acquiring (including by merger, consolidation or acquisition of equity interests or assets) or disposing of any assets or equity interests, in each case that would, or that could reasonably be expected to, have an adverse effect on the receipt or timing of receipt of any approval, consent, authorization, action or inaction required to consummate the transactions contemplated in this Agreement. In using its respective reasonable best efforts, each of Seller and Buyer shall cooperate in all respects with each other in connection with any filing or submission to any Governmental Body and in connection with any investigation or other inquiry related to any Applicable Law and shall promptly: (i) furnish to the other party hereto such necessary information and reasonable assistance as the other may request in connection with its preparation of any filing or submission that is necessary or advisable under any Applicable Law; (ii) inform the other party of any material communication from any Governmental Body regarding any of the transactions contemplated by this Agreement, including any inquiries or requests for information from any Governmental Body; (iii) permit counsel for the other party, with reasonable notice and subject to Applicable Law, to review in advance, and consider in good faith the views of the other party in connection with any proposed communication to any Governmental Body in connection with the transactions contemplated by this Agreement; and (iv) 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 Body and any other information supplied by such party and such party’s Subsidiaries or Affiliates to a Governmental Body or received from such a Governmental Body in connection with the transactions contemplated by this Agreement; provided, however, that materials may be redacted (x) to remove references concerning the valuation of the Companies; and (y) as necessary to comply with contractual arrangements or Applicable Law. Each of Seller and Buyer agree not to participate, or to permit their Affiliates to participate, in any substantive meeting or discussion, either in person or by telephone, with any Governmental Body in connection with the transactions contemplated by this Agreement unless it consults with the other party in advance and, to the extent not prohibited by such Governmental Body, gives the other party the opportunity to attend and participate. This Section 5.04(b) shall not apply to (i) the actions of the parties addressed by Section 5.04(c), (ii) the Company and Parent shall actions of the parties addressed by Section 5.04(e) through Section 5.04(i), or (iii) the actions of the parties addressed by Section 5.10(b).
(c) Prior to the Closing, each party hereto shall, and shall cause its Affiliates to, use commercially reasonable efforts to obtain, and to cooperate in obtaining, all Permits and Consents from third parties necessary or appropriate to permit the consummation of the transactions contemplated by this Agreement including the Restructuring; provided, that, no party or its Affiliates shall be required to pay or commit to pay any amount to (or incur any obligation in favor of) any Person from whom any such Permit or Consent may be required (other than nominal filing or application fees with any Governmental Body). To the extent that the rights of Seller or its Affiliates under any Permits or Contracts contemplated by the preceding sentence may not be assigned without the Consent of a third party which has not been obtained prior to the Closing, this Agreement shall not constitute an agreement to assign the same unless and until such Consent has been obtained or is no longer required. If any such Consent is not obtained as of the Closing or if an attempted assignment would be ineffective or would adversely affect a party’s rights such that a Company or Buyer would not in fact receive all such rights to any such Contract or Permit, Seller and Buyer will cooperate in a mutually agreeable arrangement under which the relevant Company would obtain, to the extent practicable, all rights and assume the corresponding Liabilities thereunder, including by means of sub-contracting, sub-licensing or sub-leasing arrangement, or under which Seller would enforce, or cause its Affiliates, as appropriate, to enforce, for the benefit of such Company, with such Company assuming and agreeing to pay the Seller’s and its Affiliate’s obligations and expenses, any and all rights of Seller or its Affiliates against third parties; provided, that, (i) if any such Consent required in connection with any coal sales agreement applicable to the Business is not obtained as of Closing or (ii) if any such Consent required in connection with any master leasing agreement set forth on Schedule 5.04(c)(ii) is not obtained as of Closing without modification of the economic terms of such master leasing agreements, then, in each case Buyer and Seller will follow the additional procedures set forth on Schedule 5.04(c)(i) and Schedule 5.04(c)(ii), respectively. From and after the Closing, Seller shall, and shall cause its Affiliates to, exercise or exploit their respective Subsidiaries torights and options under each such Contract (including the right to elect to terminate such Contract in accordance with the terms thereof) only as reasonably directed by Buyer and at Buyer’s sole cost. This Section 5.04(c) shall not apply to the actions of the parties addressed by Section 5.10(b).
(d) In using its respective reasonable best efforts, each of Seller and Buyer, subject to Applicable Law, shall not: (i) agree to extend any waiting period under Applicable Law without the prior written consent of the other party; (ii) enter into any agreement with any Governmental Body not to consummate the transactions contemplated by this Agreement without the prior written consent of the other party; or (iii) take any other action that would be reasonably likely to prevent consummation of the transactions contemplated by this Agreement prior to the Termination Date; provided, that, Buyer may conduct a Pull and Refile consistent with Section 5.05(b).
(e) Buyer shall use their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing all things necessary, proper or reasonably advisable to consummate, and obtain the proceeds of, debt financing (the “Debt Financing”), together with the Equity Financing, in an amount sufficient to consummate the transactions contemplated by this Agreement (the “Financing”). In the event that all conditions to the Equity Commitment Letter have been satisfied, or upon funding will be satisfied, Buyer shall use reasonable best efforts to cause the Equity Investor to fund on the Closing Date the Equity Financing as necessary to cause the Closing to occur on the date on which the Closing is to occur pursuant to Section 1.03. Buyer shall provide all information reasonably requested by Seller in connection with the status, completion and other matters addressed in this Section 5.04(e) and shall use reasonable best efforts to permit, in consultation and coordination with Buyer, Seller and its Affiliates and their respective officers, employees, advisors and representatives to meet with Buyer’s financing sources promptly upon Seller’s request.
(f) Prior to the Closing, subject Section 5.04(g) and Section 5.04(h), Seller shall, and shall cause the Companies to, use commercially reasonable efforts to cause their respective directors, officers, employees, consultants and advisors, including legal and accounting advisors, to provide to Buyer, all reasonable cooperation reasonably requested by Buyer to assist Buyer in connection with the Financing, including to: (i) promptly provide Buyer (and on behalf of Buyer to its financing sources and their respective representatives) with the Required Information; (ii) cause senior management and other representatives to participate in a reasonable number of meetings, presentations, due diligence sessions, sessions with prospective financing sources and their representatives, and sessions with rating agencies, in each case, at reasonable times and locations mutually agreed; (iii) assist Buyer or on behalf of Buyer its financing sources with the preparation of materials for rating agency and investor presentations, bank information memoranda, confidential information memoranda, marketing materials and similar documents required in connection with the Financing; (iv) provide appropriate representations consistent with those contained in Article III of this Agreement in connection with the preparation of financial statements and other financial data of the Companies and cause Seller’s independent auditors to provide reasonable and customary assistance and cooperation in connection with the Companies’ financial information in the Financing; (v) facilitate the preparation on behalf of Buyer of guarantees, pledging of collateral of the Companies in connection with the Debt Financing, including executing and delivering any customary guarantee, pledge and security documents, or other definitive financing documents or other customary certificates (including a solvency certificate), or documents as may be reasonably requested by Buyer to facilitate any guarantee, obtaining and perfection of security interests in collateral from and after the Closing (provided that any obligations contained in such documents shall be effective no earlier than as of the Closing); (vi) provide to Buyer (and on behalf of Buyer to its financing sources) all documentation and other information related to the Companies required by regulatory authorities under Applicable Law applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act; (viii) take corporate action (subject to the occurrence of the Closing) reasonably necessary to permit the completion of the Financing; (ix) provide reasonable access to the lenders to evaluate the Companies’ inventory, current assets, cash management and accounting systems, and policies and procedures relating thereto for the purpose of establishing collateral arrangements (including allowing access for field exams and inventory appraisals); and (x) assist with the payoff of existing indebtedness of the Companies on the Closing Date from the proceeds of the Financing and the release of related liens on the Closing Date upon confirmation of payment from the proceeds of the Financing (including obtaining customary payoff letters prior to Closing, and after confirmation of payoff the delivery and release of lien terminations and other instruments of discharge and possessory collateral, if any).
(g) Buyer shall, promptly upon request of Seller, reimburse Seller for all reasonable out-of-pocket and documented costs (including reasonable and documented out-of-pocket attorneys’ fees) incurred by Seller or any of its Affiliates in connection with Seller’s obligations in Section 5.05(f) (the “Cooperation Covenant”). Buyer shall indemnify and hold harmless Seller, its Subsidiaries and its and their respective officers, directors, employees, agents, Affiliates and representatives from and against any and all Damages suffered or incurred by them in connection with their obligations under the Cooperation Covenant or the financing contemplated by the Debt Financing and any information utilized in connection therewith, except to the extent such Damages arise from (x) fraud, gross negligence or willful misconduct by any such Person or (y) breach of any representation or warranty set forth in Section 3.06.
(h) Nothing in the Cooperation Covenant shall require Seller or its Affiliates to (i) obtain all necessary actionspay any fees, waiversreimburse any expenses or give any indemnities or incur any cost or Liability (in the case of the Companies, registrationsprior to the Closing Date), permits(ii) cause its directors to adopt or pass any resolutions or consents approving the agreements, authorizationsdocuments and instruments authorizing the execution of the Debt Financing (other than in the case of directors that will remain as directors of the Companies after Closing only, ordersand provided that such resolutions or consents would be effective only following the Closing) or otherwise incur any Liability with respect thereto, consents and approvals from Governmental Authorities(iii) provide any assistance to the extent it would materially interfere with the day-to-day operations of the Business, (iv) execute or deliver any certificate, document or agreement in connection with the Debt Financing unless the effectiveness of such certificate, document or agreement is contingent upon the occurrence of the Closing or (iv) provide any solvency opinion (as opposed to a solvency certificate) or legal opinion or other opinion of counsel, or any information that would, in the reasonable opinion of Seller, result in a violation of Applicable Law or loss of attorney-client privilege.
(i) Notwithstanding anything to the contrary in this Agreement, the expiry Cooperation Covenant shall be deemed satisfied and Seller shall not be deemed to have breached or early termination of failed to perform or observe any applicable waiting periodscovenants, and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary to obtain an approval obligations or waiver from, or to avoid an action or proceeding by, other agreements contained in any Governmental AuthoritiesCooperation Covenant, in order each case, unless promptly upon becoming aware of an alleged breach or failure to consummate the Transactions as promptly as practicable perform or observe any Cooperation Covenant, and in any event prior to the Outside Date and (ii) deliver required notices or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date.
(b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.9, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Termination Date.
(c) Subject , Buyer provides a written notice to Applicable Law, Seller specifying in reasonable detail such breach or failure and the Company specific steps required to be taken by Seller to cure such alleged breach or failure to perform or observe such Cooperation Covenant in a commercially reasonable and Parent and their respective counsel shall (i) cooperate in all respects practicable manner consistent 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) have the right to review in advancesuch Cooperation Covenant, and to the extent practicable each shall consult the other on, any material filing made with, Seller has not cured or written materials caused to be submitted to, any Governmental Authority in connection with the Transactions and of any cured such alleged material communication received breach or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, failure to perform or observe such Cooperation Covenant within five (iii5) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition Business Days of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Datenotice.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this Agreement.
Appears in 1 contract
Efforts. (a) Subject Each of the parties agrees to the terms and conditions of this Agreement, including the proviso to the first sentence of Section 6.9(d), the Company and Parent shall (and shall cause their respective Subsidiaries to) each use their its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing all things necessary, proper or advisable under Applicable Law to consummate and make effective as promptly as practicable the transactions contemplated hereby and to cooperate with the other parties in connection with the foregoing, including using its reasonable best efforts (i) to the extent requested by the other party, to obtain all necessary actions, waivers, registrations, permits, authorizations, orders, consents and approvals from Governmental Authoritiesother parties to Contracts, the expiry or early termination of any applicable waiting periods, and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver required notices or any necessary additional instruments to, and to obtain required all consents, waivers or approvals and authorizations that are required to be obtained under any additional instruments necessary fromApplicable Law, Third Parties in order to consummate including without limitation the Transactions as promptly as practicable and in any event prior to the Outside Date.
(b) In furtherance and not in limitation expiration of the undertakings pursuant to this Section 6.9, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of the notification and report forms and related material required waiting period under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary to lift or advisable to obtain prompt expiration rescind any injunction or termination of any applicable waiting period restraining order or other approval order adversely affecting the ability of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Lawtransactions contemplated hereby, the Company and Parent and their respective counsel shall (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) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of to effect all correspondenceregistrations and filings, filings and written communications between them or their Subsidiaries or Affiliatesif any, on necessary to consummate the one handtransactions contemplated hereby, and any Governmental Authority or its respective staff(v) to fulfill all conditions to this Agreement (including, on without limitation, those conditions set forth in Sections 10.2 and 10.3 below). The Seller and the other handPurchaser 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 Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each ability of the parties shall (i) have hereto to consummate the right transactions contemplated hereby, to review in advanceuse their respective reasonable best efforts to prevent the entry, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiariesenactment or promulgation thereof, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to. 7.5 Antitrust Approval. Without limiting Section 7.4, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of Purchaser and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent Seller shall take, or cause to be taken, any and all steps necessary make their respective commercial best efforts to avoid or eliminate each and every impediment under any Antitrust Law antitrust, competition or trade regulation law that may be asserted by any Governmental Authority or any other Person Body with respect to the Transactions so as to enable the parties hereto Closing to consummate the Transactions occur as promptly soon as practicable, reasonably possible (and in any event prior to the Outside Dateno later than July 31, including 2002) including, without limitation, proposing, negotiating, committing to and effecting, by consent decree, hold separate ordersorder, or otherwise, the sale, divestiture, license divestiture or other disposition or such assets or businesses of such the Purchaser or any of its and Subsidiaries or otherwise take or commit to take any actions that limits its Subsidiaries’ assetsfreedom of action with respect to, properties or businesses or its ability to retain, any of the assetsbusinesses, properties product lines or businesses to assets of the Purchaser or its Subsidiaries as may be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable required in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order order, or other Order order in any Proceeding by a Governmental Authority suit or any other Person under Antitrust Laws that proceeding, which would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this Agreement.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of this Agreement, including the proviso to the first sentence of Section 6.9(d), the Company and Parent shall (cooperate with each other and shall cause their respective Subsidiaries to) each use their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing all things necessary, proper or advisable under Applicable Law to (i) obtain all necessary actions, waivers, registrations, permits, authorizations, orders, consents and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periods, and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the Merger and the other Transactions as promptly as practicable, including (i) 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 any event prior each case, to the Outside Date and extent applicable, (ii) deliver required notices or any necessary additional instruments toobtaining and maintaining all approvals, and obtain required consents, registrations, Permits, authorizations, licenses, waivers and other confirmations required to be obtained from any Governmental Authority that are necessary to consummate the Transactions, (iii) defending or contesting any action, suit or proceeding challenging this Agreement or the Transactions and (iv) executing and delivering any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside DateTransactions.
(b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.9foregoing, each of Parent and the Company shall make (i) prepare an appropriate filing of a Notification and file any notification and report forms and related material required under Report Form pursuant to the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but and in no any event later than ten within five (105) Business Days from after the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Acthereof), (ii) provide a filing to the Commissioner requesting an advance ruling certificate or cause No Action Letter pursuant to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under Competition Act (collectively, the HSR Act or by other Governmental Authorities under applicable and the Competition Act, the “Antitrust Laws (if any) and (iiiLaws”) as promptly as practicablepracticable (and in any event within five (5) Business Days after the date hereof), take such actions as are necessary or advisable to obtain prompt expiration or termination of (iii) comply at the earliest practicable date with any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to request under any of the TransactionsAntitrust Laws for additional information, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Lawdocuments, the Company and Parent and or other materials received by each of them or any of their respective counsel shall Subsidiaries or Affiliates from any Governmental Authority in respect of such filings or such transactions and (iiv) cooperate in all respects with each other in connection with any such filing (including, to the extent permitted by Applicable Law, providing copies of all such documents, excluding the HSR Act Item 4(c) and 4(d) documents, to the non-filing parties prior to filing and considering all reasonable additions, deletions or submission with a Governmental Authority changes suggested in connection with the Transactions therewith), and in connection with resolving any investigation or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, (ii) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, of any Governmental Authority in connection with the Transactions and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding under any of the Transactions, (iii) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to any such filing or any such transaction. Each such party shall use its reasonable best efforts to furnish to each other all information required for any application or other filing to be made pursuant to any Applicable Law in connection with the Transactions. Each such party shall promptly inform the other parties hereto of any oral communication with, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination provide copies of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made written communications with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with regarding any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (such filings or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactionssuch transaction. The parties No party hereto shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to independently participate in any material discussion or formal meeting with any Governmental Authority in respect of any filingsuch filings, investigation 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 Applicable 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 TransactionsAntitrust Laws. The Company and Parent Any party may, as each it deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other parties under this Section 6.9 8.01 as “Antitrust Counsel Only Material.” Notwithstanding anything outside counsel only”. Such materials and the information contained therein shall be given only to the contrary in this Section 6.9, materials provided to the other party or its outside legal counsel may be redacted to remove references concerning the valuation of the Acquired Companies recipient and as necessary will not be disclosed by such outside counsel to address employees, officers, or directors of the recipient, unless express written permission is obtained in advance from the source of the materials. 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 or confidentiality concernspursuant to this Section 8.01 so as to preserve any applicable privilege.
(dc) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject Notwithstanding anything herein to the proviso to this sentence, contrary: Parent shall take, or cause to be taken, (i) take any and all steps necessary action necessary, including but not limited to avoid (A) selling or eliminate 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; (B) terminating existing relationships, contractual rights or obligations of the Company or Parent or their respective Subsidiaries, provided that Parent shall have no obligation to terminate or amend any contract with any of its Affiliates other than with respect to its Subsidiaries; (C) terminating any venture or other arrangement; (D) creating any relationship, contractual rights or obligations of the Company or Parent or their respective Subsidiaries or (E) 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 entry of an order or decree or file appropriate applications with the Federal Trade Commission, the Department of Justice, any attorney general of any state of the United States, the Commissioner, any competition authority of any jurisdiction or any other Governmental Authority (collectively, “Antitrust Authority”) in connection with any of the foregoing and every impediment in the case of actions by or with respect to the Company or its Subsidiaries or its or their businesses or assets; by consenting to such action by the Company and provided, that any such action may, at the discretion of the Company, be conditioned upon consummation of the Merger) (each a “Divestiture Action”) and to ensure that no Governmental Authority enters any order, decision, judgment, decree, ruling, injunction (preliminary or permanent), or establishes any law, rule, regulation or other action preliminarily or permanently restraining, enjoining or prohibiting the consummation of the Merger (“Antitrust Prohibition”) or to ensure that no Antitrust Authority with the authority to clear, authorize or otherwise approve the consummation of the Merger, fails to do so by the Outside Date; and (ii) not take any action (including the acquisition by it or its Affiliates of any interest in any Person that derives revenues from products, services or 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 impediments under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding Transactions as soon as practicable. In the foregoing provisions event that any action is threatened or instituted challenging the Merger as violative of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contraryAntitrust Law, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any all action with respect to Parent or any Affiliate of Parentnecessary, including but not limited to any affiliated investment funds Divestiture Action to avoid or resolve such action. In the event that any portfolio company (as such term is commonly understood in the private equity industry) of Parent permanent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license preliminary injunction or other disposition, order is entered or becomes reasonably foreseeable to be entered in any proceeding that would make consummation of the assets, properties Transactions in accordance with the terms of this Agreement unlawful or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreementrestrain, transaction enjoin or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would otherwise prevent or materially delay the consummation of the Transactions, Parent shall take promptly any and all steps necessary to vacate, modify or (iii) obtain all other authorizations, consents, Orders suspend such injunction or order so as to permit such consummation prior to the Outside Date. The Company shall cooperate with Parent and approvals of Governmental Authorities necessary for the consummation of the Transactions shall use its reasonable best efforts to assist Parent in accordance with the terms resisting and conditions of this Agreementreducing any Divestiture Action.
Appears in 1 contract
Efforts. (a) Subject to Upon the terms and subject to the conditions of in this Agreement, including the proviso to the first sentence of Section 6.9(d), the Company and Parent shall (and shall cause their respective Subsidiaries to) each Party will use their reasonable best efforts to take, or cause to be taken, take all actions action and to do, or cause to be done, and to assist and cooperate with the other parties in doing do all things necessary, proper or advisable under Applicable Law to (i) obtain all necessary actions, waivers, registrations, permits, authorizations, orders, consents and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periods, and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver required notices or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date.
(b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.9, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of consummate and make effective the Transactions, Transaction as promptly as reasonably practicable following December 31, 2023, including (but in no event later than ten (10a) Business Days from satisfaction, unless waived by the date of this Agreement for the filing Party to whose benefit they would otherwise accrue, of the notification and report forms and related material required under the HSR Act)closing conditions in Article 6, (iib) provide defending any Proceedings challenging the Transaction or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under performance of the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination obligations of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (i) cooperate in all respects with each other in connection with any filing or submission with a Governmental Authority Party 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 personTransaction, (iic) have the right to review in advanceobtaining, delivering or effecting any waivers, modifications, permits, consents, approvals, authorizations, qualifications, notices, registrations and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority filings that are required in connection with the Transactions and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any consummation of the TransactionsTransaction and (d) executing and delivering any instruments and taking any other actions, including furnishing to each other Party any assistance, books, records or other information the other Party reasonably requires in order to carry out the intent of the Transaction Documents, including the timely execution and delivery of all closing deliverables and the delivery to Buyer or one or more of its designees such deeds, bills of sale, endorsements, consents, assignments and other good and sufficient instruments of conveyance and assignment as shall be reasonably necessary to vest at Closing in Buyer or one or more of their designees all right, title and interest in, to and under the Membership Interests in the manner described herein, free and clear of all Liens (other than Permitted Liens), and in form and substance reasonably satisfactory to Buyer. From and after the Closing, Sellers and Buyer agree to, from time to time, execute and deliver such other documents, certificates, agreements, and other writings as any other Party reasonably requests, and to take such other actions, as may be reasonably necessary, proper, or advisable in order to (x) consummate or implement expeditiously the Transaction, (iiiy) as promptly as practicable, inform each other facilitate the transition of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or Company and the FTC or any other applicable Governmental Authority Business and (ivz) as promptly as practicable furnish each other with copies allow for the continued operation of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on Company in the other hand, with respect to the TransactionsOrdinary Course. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary foregoing in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b)5.1, but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision 5.10 hereof, none of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent Buyer or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing will be obligated to and effecting, by consent decree, hold separate ordersmake any payments, or otherwiseotherwise pay any consideration, the saleto any third party to obtain any applicable consent, divestiture, license waiver or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order approval related to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this Agreement.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Landsea Homes Corp)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, including the proviso to the first sentence of Section 6.9(d)Seller, the Company and Parent Buyer shall (and shall cause their respective Subsidiaries to) each use their all reasonable best efforts to taketake promptly, or cause to be taken, all actions actions, and to dodo promptly, or cause to be done, and to assist and cooperate with the other parties in doing doing, all things necessary, proper or advisable under Applicable Law applicable Laws to consummate and make effective the Transactions and the other transactions contemplated by the Transaction Documents and the APA, including (i) obtain the obtaining of all necessary actionsactions or nonactions, waivers, registrationsconsents, permitsclearances, authorizationsapprovals, orders, consents and approvals from Governmental Authorities, the expiry expirations or early termination terminations of any applicable waiting periods, including any such matters that may be necessary under or in connection with the APA or consummation of the Albertson’s Asset Purchase, the Specified Approvals and make the Buyer Approvals, from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Authorities, if any) and take the taking of all steps as may be reasonably necessary to obtain an approval approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental AuthoritiesEntity; (ii) the obtaining of all necessary consents, in order approvals or waivers from third parties; (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging the validity or enforceability of this Agreement or the consummation of the Transactions or the other transactions contemplated by the Transaction Documents and the APA; and (iv) the execution and delivery of any additional instruments necessary to consummate the Transactions as promptly as practicable and the Albertson’s Asset Purchase on the terms set forth in any the Transaction Documents and the APA; provided that in no event prior to shall Seller, Buyer, the Outside Date and (ii) deliver required notices Company or any necessary additional instruments of the Company’s Subsidiaries be required to pay prior to, at or after 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 other than as may be required in connection with the Refinancing; provided, however, that Seller and obtain Buyer shall each be required consentsto pay at the Effective Time 50% of any fees, waivers penalties or other consideration that Seller, Buyer, the Company or any additional instruments necessary from, Third Parties in order of the Company’s Subsidiaries is legally required to consummate pay to any third party to obtain such party’s consent to or approval of the Transactions as promptly as practicable and in any event prior the Albertson’s Asset Purchase, such payment not to the Outside Dateexceed $10,000,000 by each of Seller and Buyer.
(b) In furtherance Subject to the terms and not in limitation of conditions herein and without limiting the undertakings pursuant to this Section 6.9foregoing, each of Parent and Seller, the Company and Buyer shall (i) prepare as promptly as practicable (and in any event within ten Business Days after the date hereof) after the date hereof, file any notification and report forms all required Notification and related material required Report Forms under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any)Share Purchase and the other transactions contemplated by this Agreement, and any additional filings or notifications and related material that are necessary, proper or advisable use all reasonable best efforts to permit consummation of cause the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of periods under the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including HSR Act; (ii) use all reasonable best efforts to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (i) cooperate in all respects with each other in connection with (A) determining whether any filing filings are required to be made with, or submission with a 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 Authority Entities in connection with the Transactions execution and in connection with any investigation or other inquiry by or before a Governmental Authority relating to delivery of this Agreement and the Transactions, including any proceeding initiated by a private person, (ii) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any consummation of the Transactionstransactions contemplated hereby; and (B) promptly making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) except as set forth in Section 5.5(b)(iii) of the Seller Disclosure Letter, supply to any Governmental Entity as promptly as practicable, inform each other of practicable any material communication (additional information or documents that may be requested pursuant to any other material correspondence Law or memoranda) received from, or given to, the DOJ or the FTC or any other applicable by such Governmental Authority Entity; and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting use reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ best efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any all other actions and do, or cause to be done, all steps other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including using reasonable best efforts to take all such further action as may be necessary to avoid or eliminate each and every impediment under any resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Law that may be asserted by any Governmental Authority Division of the United States Department of Justice, state antitrust enforcement authorities or any other Person person may assert under any Law with respect to the transactions contemplated hereby, so as to enable the parties hereto Closing to consummate the Transactions occur as promptly soon as practicable, reasonably possible (and in any event prior no later than the End Date); provided, however, that notwithstanding anything to the Outside Datecontrary contained in this Agreement, including proposingnothing in this Agreement (including, negotiatingfor the avoidance of doubt, committing this Section 5.5), shall require, or be construed to and effectingrequire Buyer or any of its Affiliates to proffer to, by consent decreeor agree to, sell, divest, lease, license, transfer, dispose of or otherwise encumber or hold separate ordersand agree to sell, divest, transfer, dispose of or otherwiseotherwise encumber before or after the Closing, any assets, licenses, operations, rights, product lines, businesses or interests therein of the Company or any of its Subsidiaries or of Buyer or any of its Affiliates (or to consent to any sale, divestiture, license lease, license, transfer, disposition or other disposition encumbrance by the Company or any of its Subsidiaries of any of their respective assets, licenses, operations, rights, product lines, businesses, or interest therein or to any agreement by any such person to take any of the foregoing actions) or to agree to make any material changes (including through a licensing arrangement) or restriction on, or other impairment of Buyer’s or any of its Affiliates’ ability to own or operate, of any such assets, licenses, product lines, businesses or interests therein or Buyer’s or any of its Affiliates’ ability to vote, transfer, receive dividends, or otherwise exercise full ownership rights with respect to ownership interests in the Company or any of its Subsidiaries or of Buyer or any of its Affiliates, in each case that would be reasonably likely to have a material adverse effect on the Company, and neither Seller, the Company nor any of the Company’s Subsidiaries shall take (or agree to take) any such action, to the extent applicable, except with Buyer’s prior written consent.
(c) Seller, the Company, and Buyer 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 5.5, and subject to applicable legal limitations and the instructions of any Governmental Entity, Seller and the Company, on the one hand, and Buyer, 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 Seller or the Company, on the one hand, or Buyer, on the other hand, as the case may be, or by any of their respective Subsidiaries or Affiliates, from any third party or any Governmental Entity with respect to such transactions. Subject to applicable Law relating to the exchange of information, Seller and the Company on the one hand, and Buyer, 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 by Seller or the Company (i) to remove 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. Seller and the Company, on the one hand, and Buyer, on the other hand, 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 they consult with the other party in advance and, to the extent not prohibited by such Governmental Entity, give the other party the opportunity to attend and participate.
(d) Subject to the proviso in Section 5.5(b), 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 the Transaction Documents or the APA as violative of any Law, Seller and the Company, on the one hand, and Buyer, 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 such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding transactions. Notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, nothing in no event this Section 5.5 shall Parent limit a party’s right to terminate this Agreement pursuant to Section 7.1(b) or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, 7.1(c) so long as such agreements are conditioned upon the Closing)) any actionparty has, concession or undertakingprior to such termination, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in complied with its obligations under this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date5.5.
(e) Neither Parent nor Merger Sub (nor Without limiting any other Subsidiary of Parent) obligation under this Agreement, prior to the Closing, neither Seller nor Buyer and nor their respective Subsidiaries and Affiliates shall, and shall enter into cause their respective Subsidiaries and Affiliates not to, take or agree to take any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) action that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Actparties from obtaining any Specified Approval, Buyer Approval, or the authorizationsother approval, consents, Orders and approvals required under clearance or waiver from any other applicable Antitrust Law, applicable to Governmental Entity in connection with the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions.
(f) For purposes of this Agreement, “reasonable best efforts” shall not require (i) Buyer to (A) pay (or agree to pay) more for the Debt Financing (whether in interest rate, fees or otherwise) than the terms set forth in the Debt Commitment Letters and any fee letter entered into by Buyer in connection therewith (including after giving effect to any increase in interest rate, fees or otherwise resulting from any lender flex provisions contained in such fee letter) or, so long as Buyer has complied with Section 5.8, otherwise agree to any alternative financing that is on terms or conditions materially less favorable to Buyer and the Company, taken as a whole, than those in the Debt Commitment Letters and any fee letter entered into by Buyer in connection therewith (including after giving effect to any increase in interest rate or fees or otherwise resulting from any lender flex provisions contained in such fee letter); (B) seek more capital than is committed in the Equity Commitment Letters; or (iiiC) obtain all other authorizations, consents, Orders waive any condition or agree to any changes to the Commitment Letters; and approvals of Governmental Authorities necessary (ii) Seller to (A) pay (or agree to pay) more for the consummation Refinancing (whether in interest rate, fees or otherwise) than the terms set forth in the Refinancing Commitment Letters and any fee letter entered into by Seller in connection therewith (including after giving effect to any increase in interest rate, fees or otherwise resulting from any lender flex provisions contained in such fee letter) or, so long as Seller has complied with Section 5.9, otherwise agree to any alternative financing that is on terms or conditions materially less favorable to Seller and its Non-Company Subsidiaries, taken as a whole, (and until after the Closing, the Company and its Subsidiaries, taken as a whole) to those in the Refinancing Commitment Letters and any fee letter entered into by Seller in connection therewith (including after giving effect to any increase in interest rate or fees or otherwise resulting from any lender flex provisions contained in such fee letter); (B) waive any condition or agree to any changes to the Refinancing Commitment Letters; or (C) consummate the Refinancing if after doing so Seller would be in default under the Definitive Refinancing Agreements (without prejudice to any rights of Buyer pursuant to Section 7.1(h)).
(g) The Parties shall negotiate the forms, terms and conditions of the Transactions agreements described in accordance the term sheet set forth in the Section 5.5(g) of the Seller Disclosure Letter (the “Lancaster/MRDC Agreements”), on the basis of such term sheet, in good faith, with each such Lancaster Agreement to incorporate usual and customary provisions for similar agreements in similar circumstances. If a definitive Lancaster/MRDC Agreement cannot be finalized by Closing, the Closing shall nevertheless occur (subject to the satisfaction or waiver of the other conditions contained herein). During the period following the Closing Date until such Lancaster/MRDC Agreement is executed, the parties shall, and shall cause their respective Affiliates to, operate the business with respect to the subject matter of such Lancaster/MRDC Agreement on the terms and conditions of set forth in the term sheet attached to this Agreement. The term sheet shall govern the parties’ rights and obligations with respect to such subject matter until the respective Lancaster/MRDC Agreement has been executed.
(h) The Parties shall work together in good faith to make commercially reasonable transition/supply arrangements in respect of the matters set forth in Section 5.5(h) of the Seller Disclosure Schedule, in addition to any related transition services in respect thereof to be provided under the Seller-Company TSA and the Seller-ABS TSA.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions hereof (including the remainder of this AgreementSection 3.1) and the other Transaction Documents, including the proviso to the first sentence of Section 6.9(d), the Company and Parent each party shall (and shall cause their respective Subsidiaries to) each use their its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing all things necessary, proper or advisable desirable under Applicable Law to (i) obtain all necessary actions, waivers, registrations, permits, authorizations, orders, consents carry out the provisions hereof and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periods, thereof and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the Transactions as promptly as practicable and in any event prior give effect to the Outside Date transactions contemplated hereby and (ii) deliver required notices or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date.
(b) thereby. In furtherance and not in limitation of the undertakings pursuant to this Section 6.9foregoing, each of Parent and the Company parties shall (i) prepare subject to the provisions of this Section 3.1, including Section 3.1(d), use its reasonable best efforts to obtain as promptly as practicable and advisable (as determined in good faith by Amazon in accordance with the first sentence of Section 3.1(d)) all exemptions, authorizations, consents or approvals from, and to make all filings with and to give all notices to, all third parties, including any Governmental Entities, required in connection with the transactions contemplated by this Agreement and the other Transaction Documents, which, for the avoidance of doubt, shall include providing, as promptly as practicable and advisable, such information to any Governmental Entity as such Governmental Entity may request in connection therewith, and (ii) cooperate fully with the other party in promptly seeking to obtain all such exemptions, authorizations, consents or approvals and to make all such filings and give such notices; provided, that nothing in this Section 3.1(a) shall require either party to expend any money, bring any claim, action or proceeding or offer or grant any accommodation (financial or otherwise) to any third party to obtain any such exemptions, authorizations, consents or approvals or to make any such filings or notices (other than the payment of customary fees and expenses).
(b) Without limiting the generality of the foregoing, (i) as promptly as practicable after written notice from Amazon, the parties shall file any notification the Notification and report forms and related material Report Forms required under the HSR Act with the Federal Trade Commission and the United States Department of Justice (the date on which all such Notification and Report Forms required under the HSR Act have been initially filed, the “HSR Filing Date”) and (ii) as promptly as practicable after written notice from Amazon, file, make or give, as applicable, all other filings, requests or notices required under any other applicable Antitrust Laws Laws, in each case with respect to the Transactions issuance of the Warrant Shares (if anythe “Initial Filing Transaction”) (the filings, requests and notices described in the foregoing clauses (i) and (ii), and any additional filings or notifications and related material that are necessarycollectively, proper or advisable to permit consummation the “Initial Antitrust Filings”). In addition, following the receipt of the TransactionsInitial Antitrust Clearance, to the extent required by Applicable Law (including, for the avoidance of doubt, any Antitrust Law) in connection with any further issuance of Warrant Shares (in each case, whether in full or in part), the parties shall file, make or give, as applicable, as promptly as practicable and advisable (as determined in good faith by Amazon in accordance with the first sentence of Section 3.1(d)), any further required filings, requests or notices required under any Antitrust Laws, including the HSR Act (collectively, the “Other Antitrust Filings”). Without limiting the generality of the foregoing, each party shall supply as promptly as reasonably practicable (but in no event later than ten (10) Business Days from to the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable appropriate Governmental Entities any information and documentary material that may be requested by the DOJ or FTC under pursuant to the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (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) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision For purposes of this Agreement, in no event shall Parent or the term “Initial Antitrust Clearance” as of any of its Subsidiaries be required time means (x) prior to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwisetime, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR ActAct and the receipt of all exemptions, or the authorizations, consentsconsents or approvals, Orders the making of all filings and approvals the giving of all notices, and the expiration of all waiting periods, pursuant to any other Antitrust Laws, in each case to the extent required with respect to the Initial Filing Transaction, and (y) the absence at such time of any Applicable Law or temporary restraining order, preliminary or permanent injunction or other judgment, order, writ, injunction, legally binding agreement with a Governmental Entity, stipulation, decision or decree issued by any court of competent jurisdiction or other legal restraint or prohibition under any other applicable Antitrust Law, applicable to in each case that has the Transactions, (ii) avoid the entry of, the commencement effect of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay preventing the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this AgreementInitial Filing Transaction.
Appears in 1 contract
Sources: Investment Agreement (Atlas Air Worldwide Holdings Inc)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, including each of the proviso to the first sentence of Section 6.9(d), the Company and Parent parties hereto shall (and shall cause use their respective Subsidiaries to) each use their reasonable best efforts to taketake promptly, or cause to be taken, all actions actions, and to dodo promptly, or cause to be done, and to assist and cooperate with the other parties in doing doing, all things necessary, proper or advisable under Applicable Law applicable Laws to commence and consummate the Offer and to consummate and make effective the Merger and the other transactions contemplated by this Agreement as soon as practicable, including (i) obtain the preparing and obtaining of all necessary actionsactions or nonactions, waivers, registrationsconsents, permitsclearances, authorizations, orders, consents approvals and approvals from Governmental Authorities, the expiry expirations or early termination terminations of any applicable waiting periods, from Governmental Entities and make the preparing and making of all necessary registrations registrations, filings and filings (including filings with Governmental Authorities, if any) notices and take the taking of all steps as may be reasonably necessary to obtain an approval approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental AuthoritiesEntity, in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver required notices or any the obtaining of all necessary additional instruments to, and obtain required 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 7, (iv) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Offer and the Merger and the other transactions contemplated by this Agreement and (v) the execution and delivery of any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and transactions contemplated by this Agreement ; provided, however, that in no event shall the Company or any event of its Subsidiaries (A) be required to pay prior to the Outside DateAcceptance Time any fee, penalty or other consideration to any third party for any consents or approvals required for the consummation of the transactions contemplated by this Agreement under any contract or agreement or (B) pay any fee, penalty or other consideration to any third party of more than $10,000 individually or $50,000 in the aggregate for any consents or approvals required for the consummation of the transactions contemplated by this Agreement under any contract or agreement without the prior written consent of Parent to such payment.
(b) In furtherance Subject to the terms and not in limitation of conditions herein provided and without limiting the undertakings pursuant to this Section 6.9foregoing, each of the Company, Parent and the Company Merger Sub shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any)promptly, and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from Days, after the date of this Agreement for the filing of the notification hereof, file any and report forms all required Notification and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC Report Forms under the HSR Act or with respect to the Offer, Merger and the other transactions contemplated by other Governmental Authorities under applicable Antitrust Laws (if any) this Agreement, and (iii) as promptly as practicable, take such actions as are necessary or advisable use their reasonable best efforts to obtain prompt cause the expiration or termination of any applicable waiting period or other approval of consummation of periods under the Transactions by the DOJ or FTC or other applicable Governmental AuthoritiesHSR Act, including (ii) use their reasonable best efforts to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (i) cooperate in all respects with each other in connection with (A) determining whether any filing filings are required to be made with, or submission with a 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 Authority Entities in connection with the Transactions execution and in connection with any investigation or other inquiry by or before a Governmental Authority relating to delivery of this Agreement and the Transactions, including any proceeding initiated by a private person, (ii) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any consummation of the Transactionstransactions contemplated hereby and (B) timely preparing and making all such filings and timely preparing and obtaining all such consents, permits, authorizations or approvals, (iii) supply to any Governmental Entity as promptly as practicable, inform each other of practicable any material communication (additional information or documents that may be requested pursuant to any other material correspondence Law or memoranda) received from, or given to, the DOJ or the FTC or any other applicable by such Governmental Authority Entity and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, 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 hereby, including to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, the SEC, any other department or agency of the United States, 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 all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person Entity with respect to the Offer and the Merger so as to enable the parties hereto Expiration Date and the Closing to consummate the Transactions occur as promptly soon as practicable, reasonably possible (and in any event prior no later than the End Date); provided that none of Parent, Merger Sub, the Company, any of its Subsidiaries or any of their respective affiliates shall be required to the Outside Datebecome subject to, including proposingor consent or agree to or otherwise take any action with respect to, negotiatingany requirement, committing condition, understanding, agreement or order of a Governmental Entity to and effectingsell, by consent decree, to hold separate ordersor otherwise dispose of, or otherwiseto conduct, restrict, operate, invest or otherwise change the saleassets or business, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order order in any Proceeding by a Governmental Authority suit or any other Person under Antitrust Laws that proceeding which would otherwise have the effect of preventing or materially delaying or preventing the commencement or consummation of the Transactions; provided that, notwithstanding Offer or the foregoing provisions of this Section 6.9(d) Merger. To the extent Parent or any other provision of the Company deems such a filing necessary or appropriate in connection with the transactions contemplated by this Agreement, Parent and the Company shall file as promptly as practicable a joint voluntary notice in no event respect of the transactions contemplated hereby under Section 721 of the Defense Production Act of 1950, as amended, and the rules and regulations thereunder (the “Exon-▇▇▇▇▇▇ Amendment”).
(c) Subject to applicable Law and the instructions of any Governmental Entity, the Company and Parent shall keep each other 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 communications received by the Company or Parent, 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. 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 the Company and 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 addition, subject to applicable Law, the Company shall keep Parent and Merger Sub apprised of the status of matters relating to ongoing material Actions involving or relating to the Company or its Subsidiaries, including Actions relating to the Restatement and Related Matters, and will promptly furnish Parent and Merger Sub with copies of notices, filings or other communications received by the Company or any of its Subsidiaries be required from any third party and/or any Governmental Entity with respect to agree to such Actions.
(nor shall e) In furtherance and not in limitation of the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon covenants of the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything parties contained in this Section 6.9 6.6, if any administrative or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parentjudicial Action, including any affiliated investment funds proceeding by a private party, is instituted (or threatened to be instituted) challenging any portfolio company (transaction contemplated by this Agreement as such term is commonly understood in the private equity industry) violative of Parent or any Law, each of its Affiliates (other than the Company and its Subsidiaries)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, including proposinglifted, negotiating, committing to and effecting, by consent reversed or overturned any decree, hold separate ordersjudgment, or otherwise, the sale, divestiture, license injunction or other dispositionorder, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) , that would prevent is in effect and that prohibits, prevents or restricts the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination commencement and consummation of the waiting period under the HSR ActOffer, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, Merger or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation any of the Transactions in accordance with the terms and conditions of other transactions contemplated by this Agreement. In addition, the Company will give Parent reasonable opportunity to consult in the defense of any shareholder litigation against the Company and its directors relating to or arising from the transactions contemplated by this Agreement. The Company will not settle any such shareholder litigation without the prior written consent of Parent, which consent will not be unreasonably withheld or delayed. Notwithstanding the foregoing, the Company shall not be required to provide any notice or information to Parent or Merger Sub the provision of which the Company in good faith determines, based upon advice of outside counsel, would cause a risk of loss of the Company’s attorney-client or other privilege applicable to such information; provided, however, that the Company shall be required to cooperate with Parent and Merger Sub to the greatest extent practicable and to take all actions reasonably necessary to allow Parent and Merger Sub to review such information while preserving attorney-client or other privilege with respect to such information, including entering into joint defense agreements or other arrangements with Parent to allow such disclosure.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of this Agreement, including the proviso to the first sentence each of Section 6.9(d)Parent, Merger Sub and the Company and Parent shall (and shall cause their respective Subsidiaries to) each use their commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing doing, all things necessary, proper or advisable under Applicable applicable Law or Order to consummate and make effective the Transactions as promptly as reasonably practicable, including (i) obtain preparing and filing as promptly as reasonably practicable with any Governmental Authority or other Third Party all necessary actionsdocumentation to effect all necessary, waiversproper or advisable filings, notices, petitions, statements, registrations, submissions of information, applications and other documents and (ii) obtaining and maintaining all approvals, consents, registrations, permits, authorizations, orders, consents authorizations and approvals other confirmations required to be obtained from Governmental Authorities, the expiry or early termination of any applicable waiting periods, and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver required notices Authority or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, other Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date.
(b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.9, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material Party that are necessary, proper or advisable to permit consummation consummate and make effective the Transactions (whether or not such approvals, consents, registrations, permits, authorizations and other confirmations are Scheme Conditions); provided, however, that none of the TransactionsCompany, 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 first obtaining the prior written consent of Parent (such consent not to be unreasonably withheld or delayed).
(b) The Company and Parent shall, as promptly as reasonably practicable (and before the expiration of any relevant legal deadline, but in no event later than ten (10) Business Days from following the date execution and delivery of this Agreement for Agreement, file with (i) the filing United States Federal Trade Commission and the United States Department of Justice the notification and report forms form and related material accompanying materials, if any, required under the HSR Act)Act for the transactions contemplated hereby, and (ii) provide any other Governmental Authority any other filings, reports, information and documentation required for the transactions contemplated hereby pursuant to any applicable Competition Laws. Each of the Company and Parent shall furnish or cause to be provided as promptly as reasonably practicable any furnished to each other’s respective counsel such necessary information and documentary material reasonable assistance as the other may request in connection with its preparation of any filing or submission that may be requested by the DOJ or FTC is necessary under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside DateCompetition Laws.
(c) Subject to Applicable Law, the The Company and Parent and their respective counsel shall shall: (i) cooperate in all respects with each other in connection with use their commercially reasonable efforts to promptly obtain any filing or submission with a Governmental Authority in connection with clearance required under the Transactions HSR Act and in connection with any investigation or other inquiry by or before a Governmental Authority relating to Competition Laws for the Transactions, including any proceeding initiated by a private personconsummation of this Agreement and the transactions contemplated hereby, (ii) have keep each other apprised of the right to review in advancestatus of any communications with, and to the extent practicable each shall consult the other on, any material filing made with, inquiries or written materials to be submitted torequests for additional information from, any Governmental Authority in connection with the Transactions 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) as comply promptly as practicable, inform each other of with any material communication (such inquiry or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority request and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and supply to any Governmental Authority or its respective staff, on the other hand, with respect to the Transactionswithout undue delay any additional information requested. Notwithstanding the foregoing, neither Parent shall, following consultation with the Company and after giving due consideration nor any of its Affiliates shall be required to the Company’s views and acting reasonable and consent to or make any divestiture or other structural or conduct relief in good faith, and subject order to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactionsobtain clearance from any Governmental Authority, and the Company shall not agree to any divestiture or other structural or conduct relief without the prior written consent of Parent. Any such structural or conduct relief affecting the business, assets, or operations of the Company shall be conditioned upon the prior occurrence of the Scheme implementation.
(d) The Parties commit to instruct their respective counsel to cooperate in good faith with Parent each other and Merger Sub in the parties’ use commercially reasonable efforts to obtain any clearance, approval, waiver or expiry or early termination facilitate and expedite the identification and resolution of any applicable waiting periods issues arising under the HSR Act and any Competition Laws at the earliest practicable dates. Such commercially reasonable efforts and cooperation include such counsel’s undertaking (i) to keep each other appropriately informed of communications from and to personnel of the reviewing Governmental Authorities, and (ii) to confer with each other regarding appropriate contacts with and response to personnel of such Governmental Authorities and the content of any such contacts or presentations. The Company and Parent shall not participate in any meeting or discussion with any Governmental Authority with respect to any Antitrust Laws; providedsuch filings, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filingapplications, investigation or other inquiry in connection with without giving the Transactions. The Company and Parent mayother Party prior notice of the meeting or discussion and, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to extent permitted by the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any relevant Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwiseAuthority, the saleopportunity to attend and participate in such meeting or material discussion (which, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of at the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) request of Parent or any of its Affiliates (other than the Company and its SubsidiariesCompany, shall be limited to outside antitrust counsel only), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this Agreement.
Appears in 1 contract
Efforts. (a) Subject to From and after the terms date hereof, Parent and conditions of this Agreement, including the proviso to the first sentence of Section 6.9(d), the Company and Parent Seller shall (and shall cause their respective Subsidiaries to) each use their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing all things necessary, proper or advisable under Applicable any applicable Law to consummate and make effective as promptly as reasonably practicable (and, in any event, prior to the Outside Date) the Transaction and the other transactions contemplated by this Agreement, including (i) obtain promptly preparing and filing of all forms, registrations and notices required to be filed to consummate the Transaction and the other transactions contemplated by this Agreement as promptly as reasonably practicable; provided that the Parties shall make any filings required under the HSR Act within ten (10) Business Days of the date of this Agreement; (ii) promptly complying to the extent necessary actionsor advisable with any formal or informal request for information or documents by any Governmental Entity, waiversincluding any request for additional information and documentary materials by the Federal Trade Commission or the U.S. Department of Justice under the HSR Act; (iii) resolving all questions or objections from any Governmental Entity; and (iv) obtaining all approvals, consents, clearances, registrations, permits, authorizations, orders, consents authorizations and approvals other confirmations from Governmental Authorities, the expiry or early termination of any applicable waiting periods, and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver required notices or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date.
(b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.9, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are Entity necessary, proper or advisable to permit consummation of consummate the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from Transaction and the date other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement for Agreement. Without limiting the filing foregoing, but subject to the proviso in the last sentence of the notification and report forms and related material required under the HSR Actthis Section 5.1(a), (ii) provide Parent and Seller shall take, or cause to be provided as promptly as reasonably practicable taken, all actions necessary to obtain (and shall cooperate with each other in obtaining) any Antitrust Approvals (which actions shall include furnishing all information and documentary material that may required in connection with such Antitrust Approvals) required to be requested by obtained to satisfy the DOJ conditions set forth in Section 7.1(a) or FTC under Section 7.1(b) (in the HSR Act case of Section 7.1(b), if the injunction, restraint or by other Governmental Authorities under applicable Judgment relates to any Antitrust Laws (if anyLaw) and (iii) as promptly as practicableto consummate the Transaction and the other transactions contemplated by this Agreement. Each of Parent and Seller shall use reasonable best efforts to take, take such or cause to be taken, all other actions as are necessary and do, or cause to be done, all other things necessary, proper or advisable to obtain prompt expiration or termination of any applicable waiting period or consummate and make effective the Transaction and the other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authoritiestransactions contemplated hereby, including taking all action as may be necessary to cause resolve such objections, if any, as any Governmental Entity or any other Person may assert under any Antitrust Law with respect to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactionstransactions contemplated hereby, so as to enable the parties hereto Closing to consummate the Transactions prior to occur as soon as reasonably practicable (and in any event no later than the Outside Date), including, if doing so is a required condition for the Parties to secure any Antitrust Approval, proffering to, or agreeing 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 included in the Purchased Assets or of Parent or any of its Affiliates (or consent to any sale, divestiture, lease, license, transfer, disposition or other encumbering by the Seller Entities of any assets, licenses, operations, rights, product lines, businesses or interests included in the Purchased Assets or to any agreement by any of the Seller Entities to take any of the foregoing actions) (“Antitrust Remedies”); provided, however, that Parent shall not be required to undertake, or agree to undertake, any Antitrust Remedies (i) to the extent that any such Antitrust Remedies include any sale, divestiture, lease, license, transfer, disposition or other encumbering of any assets, licenses, operations, rights, product lines, businesses or interests of Parent or any of its Subsidiaries or Affiliates, or the Business, in the San Francisco Bay Area, California; New York, New York; Philadelphia, Pennsylvania; or Chicago, Illinois, or (ii) that would be material to the business or operations of Parent and its Subsidiaries, or to the Business.
(cb) Subject to Applicable Law, the Company The Parties shall cooperate and Parent and their respective counsel shall (i) cooperate in all respects consult with each other in connection with obtaining any authorizations, approvals, consents, clearances, registrations, permits and other confirmations from any Governmental Entity required to consummate the transactions contemplated by this Agreement, and shall, unless prohibited by law, promptly (i) furnish to the other Party such information as the other Party may reasonably require in connection with the preparation of any filing or submission with a under the HSR Act or other Antitrust Law; (ii) notify each other promptly of any oral communication with, and provide copies of any written communications, correspondence and filings with, any Governmental Authority Entity; (iii) consult and cooperate with, and consider in connection with good faith the Transactions and views of, one another in connection with any investigation analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with proceedings under the HSR Act or other inquiry by or before a Governmental Authority relating to Antitrust Law; (iv) permit the Transactions, including any proceeding initiated by a private person, (ii) have the right other Party to review and discuss in advance, and to consider in good faith the extent practicable each shall consult views of the other onParty in connection with, any material filing made with, or proposed written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memorandaoral) received from, or given to, the DOJ or the FTC or communication with any other applicable such Governmental Authority Entity and (ivv) as promptly as practicable furnish each give the other with copies Party reasonable advance notice of all correspondence, filings and written communications between them meetings (whether in person or their Subsidiaries via video or Affiliates, on the one hand, and telephone conference) with any Governmental Authority Entity and unless prohibited by Law or its respective staffsuch Governmental Entity, on not attend or participate independently in any meeting with a Governmental Entity without providing reasonable advance notice to the other handParty and an opportunity to attend and participate in such meeting. Notwithstanding anything herein to the contrary, in the event that the Parties have differing views with respect to the Transactions. Notwithstanding handling of any reviews or investigations of the foregoingTransaction under any Antitrust Law, Parent shallshall have final decision-making authority on relevant strategy, following consultation timing and agreements with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust LawsGovernmental Entity; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may behowever, that appears Parent shall not be permitted to make any such decisions in any filing made withrespect of strategy, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority timing and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting agreements with any Governmental Authority in respect Entity that would reasonably be expected to delay the consummation of any filingthe transactions contemplated by this Agreement to a date after the Outside Date, investigation or other inquiry in connection with would reasonably be expected to prevent the Transactionstransactions contemplated by this Agreement from being consummated prior to the Outside Date. The Company Parent and Parent Seller may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 5.2(b) as “Antitrust Counsel Only Materialoutside counsel only.” Notwithstanding anything Such materials and the information contained therein shall be given only to outside legal counsel and will not be disclosed by such outside counsel to employees, officers or directors of the contrary recipient unless express permission is obtained in advance from the source of the materials (Parent or Seller, as the case may be) or its legal counsel. Materials provided pursuant to this Section 6.9, materials provided to the other party or its counsel 5.2(b) may be redacted (i) to remove references concerning the valuation of or future plans for the Acquired Companies Business; (ii) as necessary to comply with contractual obligations; and (iii) as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(dc) In furtherance Additionally, and without limiting the specific other obligations of the undertakings Parties set forth in this Agreement, each of Parent pursuant and Seller shall use its reasonable best efforts to Section 6.9(a(i) execute and Section 6.9(b)deliver any additional instruments necessary, but subject proper or advisable to consummate the proviso Transaction and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement and (ii) fulfill all conditions precedent to this sentence, Parent Agreement and shall not take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or permit any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminatedtake, any Order (whether temporary, preliminary or permanent) that would prevent action after the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary date of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) this Agreement that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Actprevent, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent impair or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this AgreementClosing.
Appears in 1 contract
Efforts. (a) Subject to Each of the terms and conditions of this Agreement, including the proviso to the first sentence of Section 6.9(d), the Company and Parent Parties shall (and shall cause their respective Subsidiaries to) each use their commercially reasonable best efforts to take, or cause to be taken, take all actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing do all things necessary, proper or advisable under Applicable Law to (i) satisfy the conditions to Closing set forth herein and to consummate the transactions contemplated by this Agreement, including to obtain all necessary actions, waivers, registrations, permits, authorizationsconsents, orders, consents and approvals or other authorizations from Governmental AuthoritiesEntities, to effect all registrations, filings and notices with or to Governmental Entities and to otherwise comply with all applicable laws and regulations in connection with the expiry or early termination consummation of any applicable waiting periodsthe transactions contemplated by this Agreement, and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps Seller shall use commercially reasonable efforts to obtain the third party consents listed on Section 2.3 of the Disclosure Schedule as may be reasonably necessary requested by Buyer. Buyer shall bear any out-of-pocket costs associated with obtaining such waivers, permits, consents, approvals or other authorizations. Without limiting the generality of the foregoing, (a) each of the Parties shall promptly file any Notification and Report Forms and related material that it may be required to file with the Federal Trade Commission and the Antitrust Division of the United States Department of Justice under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act, shall use its commercially reasonable best efforts to obtain an approval early termination of the applicable waiting period, and shall make any further filings or waiver frominformation submissions pursuant thereto that may be necessary, proper or to avoid an action or proceeding byadvisable, any Governmental Authorities, in order to consummate the Transactions as promptly as practicable and in any event prior (b) with respect to the Outside Date real property sublease identified on Section 2.9 of the Disclosure Schedule (the “Tysons Corner Lease”), Buyer shall use commercially reasonable efforts (i) cooperate with Seller in its efforts to obtain a landlord or sublandlord consent to the assignment or sublease of such sublease to Buyer (to the extent any such consent is deemed necessary or appropriate by Seller), and (ii) deliver required notices or any take such steps as are necessary additional instruments toand appropriate to become a substitute guarantor under the terms of the Tysons Corner Lease; provided, that, with respect to clause (ii), in the event the sublandlord does not accept Buyer as a substitute guarantor under the terms of the Tysons Corner Lease, Buyer shall provide Seller, at Seller’s sole discretion, either (A) a letter of credit for an amount equal to two times the aggregate amount of Monthly Base Rent and obtain required consents, waivers or any additional instruments necessary from, Third Parties Additional Rent (as defined in order to consummate the Transactions as promptly as practicable and in any event prior Tysons Corner Lease) due pursuant to the Outside Date.
(b) In furtherance and not in limitation Tysons Corner Lease during the period from the Closing to the termination date of the undertakings pursuant to this Section 6.9, each of Parent and the Company shall Tysons Corner Lease or (iB) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws a back-up guaranty with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested obligations guaranteed by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior Seller pursuant to the Outside Date.
(c) Subject to Applicable LawTysons Corner Lease, the Company and Parent and their respective counsel shall (i) cooperate in all respects with each other in connection with any filing which letter of credit 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) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiariesback-up guaranty, as the case may be, may be drawn upon or enforced by Seller in the event that appears such sublandlord exercises its rights with respect to Seller’s guaranty. Any letter of credit or back-up guaranty delivered pursuant to this
Section 5.1 shall remain in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding full force and effect for so long as Seller’s guaranty with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate Tysons Corner Lease remains in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Materialeffect.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this Agreement.
Appears in 1 contract
Sources: Stock Purchase and Sale Agreement (Microstrategy Inc)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, including each of the proviso to the first sentence of Section 6.9(d)parties hereto shall, and the Company and Parent shall (and shall cause their respective each of its Subsidiaries to) each , use their all reasonable best efforts to taketake promptly, or cause to be taken, all actions actions, and to dodo promptly, or cause to be done, and to assist and cooperate with the other parties in doing doing, all things necessary, proper or advisable under Applicable Law applicable Laws to consummate the Offer and to consummate and make effective the Merger and the other transactions contemplated by this Agreement, including (i) obtain the obtaining of all necessary actionsactions or nonactions, waivers, registrationsconsents, permitsclearances, authorizationsapprovals, orders, consents and approvals from Governmental Authorities, the expiry expirations or early termination terminations of any applicable waiting periods, including the Specified Approvals and make the Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Authorities, if any) and take the taking of all steps as may be reasonably necessary to obtain an approval approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental AuthoritiesEntity, in order (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 Offer, the 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 as promptly as practicable and transactions contemplated by this Agreement; provided, however, that in no event shall the Company or any event of its Subsidiaries be required to pay prior to the Outside Date 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 (other than de minimis amounts or if Parent and (ii) deliver required notices Merger Sub have provided adequate assurance of repayment). Neither party shall take any action that is intended or any necessary additional instruments would reasonably be expected to, and obtain required consentsindividually or in the aggregate, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and result in any event prior of the Tender Offer Conditions or the conditions to the Outside DateMerger set forth in Article VI not being satisfied or the satisfaction of those conditions being materially delayed.
(b) In furtherance Subject to the terms and not in limitation of conditions herein provided and without limiting the undertakings pursuant to this Section 6.9foregoing, each of Parent and the Company and Parent shall (i) prepare and file use reasonable best efforts to cooperate with each other in (x) determining whether any notification and report forms and related material filings are required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any)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 Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of, the Merger and the transactions contemplated hereby and (y) timely making all such filings and timely seeking all such consents, permits, authorizations or approvals, (ii) supply to any Governmental Entity as promptly as practicable any additional filings information or notifications documents that may be requested pursuant to any Law or by such Governmental Entity and related material that are (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 permit consummation of consummate the TransactionsOffer and to consummate and make effective the Merger and the other transactions contemplated hereby, including taking all such further action as may be necessary to resolve such objections, if any, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Act), (ii) provide state antitrust enforcement authorities or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination competition authorities of any applicable waiting period other nation or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (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) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (jurisdiction or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or person may assert under any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, Law with respect to the Transactions. Notwithstanding Offer, the foregoing, Parent shall, following consultation with Merger and the Company and after giving due consideration to the Company’s views and acting reasonable and in good faithother transactions contemplated hereby, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person Entity with respect to the Offer, the Merger so as to enable the parties hereto Expiration Date and the Closing to consummate the Transactions occur as promptly soon as practicable, reasonably possible (and in any event prior to no later than the Outside End Date), including including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, order or otherwise, the sale, divestiture, license divestiture or other disposition of such any material assets or businesses of Parent or its Subsidiaries or controlled affiliates or of 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 Parent or its Subsidiaries’ (including the Surviving Corporation’s) or controlled affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries (including the Surviving Corporation’s) businesses, product lines or assets, properties or businesses or of the assets, properties or businesses to in each case as may be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable required in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order order in any Proceeding by a Governmental Authority suit or any other Person under Antitrust Laws that proceeding which would otherwise have the effect of preventing or materially delaying the consummation of the TransactionsOffer 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 thatthat neither the Company nor any of its Subsidiaries shall become subject to, notwithstanding or consent or agree to or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Company or any of its affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Company only in the event that the Closing occurs.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, the Company and Parent shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated hereby, including to the extent permitted by Law promptly furnishing the other with copies of notices or other communications sent or received by the Company or Parent, 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. The Company and Parent shall permit the other party to review in advance any proposed communication to any supervisory or Governmental Entity. Each of the Company and 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, each of the Company and 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 Offer, the Merger and the other transactions contemplated by this Agreement. Notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, nothing in no event this Section 5.6 shall Parent limit a party’s right to terminate this Agreement pursuant to Section 7.1(b) or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, 7.1(c) so long as such agreements are conditioned upon the Closing)) any actionparty has, concession or undertakingprior to such termination, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in complied with its obligations under this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date5.6.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) It is agreed that this Section 5.6 shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain not govern the timely expiration or termination obligations of the waiting period under parties with respect to obtaining the HSR ActFinancing, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions which obligations are set forth in accordance with the terms and conditions of this AgreementSection 5.11.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of this Agreement, including each of the proviso to parties hereto shall cooperate with the first sentence of Section 6.9(d), the Company other parties and Parent shall use (and shall cause their respective Subsidiaries toAffiliates to use) each use their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly (i) take, or cause to be taken, all actions actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing doing, all things necessary, proper or advisable under Applicable Law to cause the conditions to Closing to be satisfied as promptly as reasonably practicable and to consummate and make effective, in the most expeditious manner reasonably practicable, the Transactions, including preparing and filing promptly and fully all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents, (ii) obtain all approvals, nondisapprovals, consents, registrations, waivers, permits, authorizations, orders and other confirmations from any Banking Authority (including the OCC) and any other Governmental Authority or third party necessary to consummate the Transactions, (iii) execute and deliver any additional instruments necessary to consummate the 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) obtain all necessary actionsthrough (iv), waiversother than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other documents, approvals, consents, registrations, permits, authorizationsauthorizations and other confirmations relating to Antitrust Laws or FDI Laws, orderswhich are exclusively dealt with in Section 5.03(c) and (d) below. Notwithstanding anything in this Agreement to the contrary, consents and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periods, and make all necessary registrations and filings nothing in this Agreement (including filings with Governmental Authorities, if anyany provision of this Section 5.03) and take all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver required notices shall require Parent or any necessary additional instruments to, of its Affiliates to agree to any Materially Burdensome Regulatory Condition and obtain required consents, waivers the Company shall not agree to or take any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event action constituting a Materially Burdensome Regulatory Condition without Parent’s prior to the Outside Datewritten consent.
(b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.9foregoing, each of Parent and the Company and Parent shall each use its reasonable best efforts to (i) prepare take all actions necessary to ensure that no Takeover Law is or becomes applicable to any of the Transactions and file refrain from taking any notification actions that would cause the applicability of such Laws and report forms (ii) if the restrictions of any Takeover Law become applicable to any of the Transactions, take all actions necessary to ensure that the Transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement and related material required otherwise lawfully minimize the effect of such Takeover Law on the Transactions.
(c) Each of the parties hereto agrees: (1) that each of the applicable parties shall make, or cause to be made, (A) an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions (which shall 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 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 with respect and FDI Laws and (3) to the Transactions (if any), use reasonable best efforts to avoid or eliminate each and every impediment and obtain all consents under any additional filings or notifications Antitrust Laws and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material FDI Laws that may be requested required by the DOJ any foreign or FTC under the HSR Act U.S. federal, state or by other local Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicableAuthority, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactionsin each case with competent jurisdiction, so as to enable the parties hereto to consummate the Transactions prior to as promptly as practicable. Without limiting the Outside Date.
(c) Subject to Applicable Lawforegoing, the Company and Parent shall, and shall cause each of their respective counsel 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 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, 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 them, 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 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, (ii) have the right to review in advance, and to the extent practicable each shall consult keep the other on, party hereto informed in all respects and on a reasonably timely basis of any material filing made withcommunication received by such party from, or written materials to be submitted 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 in connection with the Transactions or third Person (including any Banking Authority) and of any material substantive communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other subject to applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect Laws relating to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects exchange of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advanceinformation, and to the extent practicable each will reasonably practicable, consult with the other on, all the party hereto with respect to information relating to the other party parties hereto and its their respective SubsidiariesAffiliates, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or third Person or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, other than “Transaction Related Documents” as that term is used in the rules and regulations under the HSR Act, and (iiiv) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given toto the extent permitted by the FTC, the DOJ DOJ, the CCB or the FTC or any such other applicable Governmental Authority or other Person, give the other parties hereto the opportunity to attend and (iii) promptly furnish each participate in any meetings, telephonic conferences and videoconferences with such Governmental Authority or other with copies Person regarding any of the Transactions. Parent and the Company shall have the right to review in advance all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and materials submitted to any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company , 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 Parent may, (C) as each deems advisable and necessary, necessary to address reasonable privilege or confidentiality concerns; provided further that a party may reasonably designate any competitively sensitive material provided to the other another party under this Section 6.9 5.03(d) as “Antitrust Outside Counsel Only Material.” 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 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 Section 6.9Agreement, materials provided with respect to the other party any filing or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding supplement thereto required by a Governmental Authority that may include sensitive financial or any other information (including but not limited to sensitive personal information) with respect to Parent or Parent Related Parties, such Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreementmay elect, in no event shall Parent or any of such Person’s sole discretion, to provide such information to such Governmental Authority directly through its Subsidiaries be required to agree to legal counsel.
(nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)e) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere 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.
(f) Parent shall not be required to take (nor and shall cause its Equity Investors’ Affiliates (the Company or any Company Subsidiaries be permitted “Interested Parties”) to take) any action and all actions, and do, or cause to be done, any and/or all things necessary, proper or advisable to ensure that any review of the Merger by CFIUS and any CFIUS Approval will not impede, prevent or delay the Closing and in connection therewith avoid any restraint pursuant to Section 6.01(a). In furtherance and not in limitation of the 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 any Affiliate cause to be filed, with CFIUS a draft of Parent, including any affiliated investment funds or any portfolio company the CFIUS Notice (the “Draft Notice”) as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiariescontemplated under 31 C.F.R. 800.401(f), including proposingand (B) as promptly as practicable after receiving and incorporating any feedback from CFIUS regarding the Draft Notice, negotiating, committing to Parent and effecting, by consent decree, hold separate ordersCompany shall file, or otherwisecause to be filed, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions CFIUS Notice in accordance with the terms DPA;
(ii) supplying, as promptly as reasonably practicable, any certification, additional information, documents or other materials in respect of such notice or the transactions contemplated by this Agreement that may be requested by CFIUS, respectively, in connection with its review process related to the CFIUS Approval; and
(iii) cooperating with each other in connection with any such filing and in connection with resolving any investigation or 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 any board representation rights or other governance or cons
Appears in 1 contract
Sources: Merger Agreement (Dayforce, Inc.)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, including each of the proviso to the first sentence of Section 6.9(d), the Company and Parent parties hereto shall (and shall cause their respective Subsidiaries to) each use their reasonable best efforts to taketake promptly, or cause to be taken, all actions actions, and to dodo promptly, or cause to be done, and to assist and cooperate with the other parties in doing doing, all things necessary, proper or advisable under Applicable Law applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement, including (i) obtain the obtaining of all necessary actionsactions or nonactions, waivers, registrationsconsents, permitsclearances, authorizationsapprovals, orders, consents and approvals expirations or terminations of waiting periods from Governmental Authorities, Entities and the expiry or early termination making of any applicable waiting periods, and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take the taking of all steps as may be reasonably necessary to obtain an approval approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental AuthoritiesEntity, in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver required notices or any the obtaining of all necessary additional instruments to, and obtain required 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 Merger and the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date.
(b) transactions contemplated by this Agreement. In furtherance and not in limitation of the undertakings pursuant to this Section 6.9foregoing, each of Parent and the Company and Parent agree not to extend any waiting period under the HSR Act or any other applicable foreign or domestic competition, merger control, antitrust or similar Law or enter into any agreement with any Governmental Entity not to consummate the Merger or the other transactions contemplated by this Agreement, 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 Company and Parent shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any)promptly, and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) 10 Business Days from after the date of this Agreement for the filing of the notification hereof, file any and report forms all required Notification and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC Report Forms under the HSR Act with respect to the Merger and the other transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration or by other Governmental Authorities termination of any applicable waiting periods under applicable Antitrust Laws (if any) and (iii) the HSR Act as promptly as practicable, take such actions as are necessary (ii) promptly file any and all required notifications or advisable applications under any other applicable foreign or domestic competition, merger control, antitrust or similar Law with respect to obtain prompt the Merger and the other transactions contemplated by this Agreement, and use reasonable best efforts to receive required approvals or clearances and cause the expiration or termination of any applicable waiting period under such applicable foreign or other approval of consummation of the Transactions by the DOJ domestic competition, merger control, antitrust or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (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) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) similar Law as promptly as practicable, inform (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 any material communication (or any other material correspondence or memoranda) received waiting periods are required to be obtained from, any third parties or given toother 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 obtain all such consents, the DOJ permits, authorizations or the FTC or any other applicable Governmental Authority and approvals, (iv) supply to any Governmental Entity as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them any additional information or their Subsidiaries documents that may be requested pursuant to any Regulatory Law (as hereinafter defined) or Affiliates, on the one handby such Governmental Entity, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (iv) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, 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 hereby, including taking all such further action as may be necessary 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 Regulatory Law with respect to the transactions contemplated hereby, and all steps necessary to avoid or eliminate each and every any impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this Agreement.Governmental
Appears in 1 contract
Efforts. (a) Subject to Each of the terms Company, Parent and conditions of this Agreement, including the proviso to the first sentence of Section 6.9(d), the Company and Parent Purchaser shall (and shall cause their use its respective Subsidiaries to) each use their reasonable best efforts to (i) take, or cause to be taken, all actions appropriate action and to do, or cause to be done, and to assist and cooperate with the other parties in doing doing, all things necessary, proper or advisable under Applicable Law or otherwise to consummate and make effective the Offer and the other transactions contemplated by this Agreement, as promptly as practicable (iincluding, in the case of the Company, 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 other transactions contemplated hereby under Contracts relating to the Company Group’s outstanding indebtedness for borrowed money), (ii) take such actions (if any) as may be required to cause 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, (iii) obtain all necessary actions(A) from any Governmental Entity any consents, licenses, permits, waivers, approvals, authorizations or orders required to be obtained by Parent, Purchaser or the Company, or any 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 Person, in connection with the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, including the Offer, and (B) from any Third Party any consents or notices that are required to be obtained or made by Parent, Purchaser or the Company, or any of their respective Subsidiaries, in connection with the transactions contemplated by this Agreement, (iv) cause the satisfaction of the Offer Conditions, (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, non-appealable 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, non-appealable 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 thereafter make any other required submissions, and pay any fees due in connection therewith, with respect to this Agreement and the Offer required under any applicable Competition Law and other applicable Laws, (viii) to obtain as promptly as practicable all consents, waivers, licenses, orders, registrations, approvals, permits, authorizationsrulings, orders, consents authorizations and approvals clearances necessary or advisable to be obtained from any Third Party or any Governmental Authorities, Entity to consummate the expiry Offer or early termination of any applicable waiting periodsthe other transactions contemplated by this Agreement, and make all necessary registrations and filings (including filings with Governmental Authorities, if anyix) and take all reasonable steps as may be reasonably necessary to obtain an approval all such consents and approvals. Notwithstanding anything to the contrary in this Agreement, Parent, Purchaser or waiver fromany of their respective Affiliates shall not be required to become subject to, or consent or agree to or otherwise take any action with respect to, any Order, requirement, condition, understanding or agreement of or with a Governmental Entity to sell, to license, to hold separate or otherwise dispose of, or to avoid an conduct, restrict, operate, invest or otherwise change the assets or business of Parent or any of its Affiliates or the Company or any of its Affiliates, if such consent, agreement or other action would, or proceeding bywould reasonably be expected to, any Governmental Authorities(1) have a material adverse effect on the assets, in order to consummate financial condition, or results of operations of Parent and its Subsidiaries (including, for these purposes, the Transactions Company and the Company Subsidiaries) taken as promptly as practicable and in any event prior a whole (after giving effect to the Outside Date and Acceptance Time) or (ii2) deliver required notices require Parent, its Subsidiaries or the Company or the Company Subsidiaries to take any necessary additional instruments tosteps or actions that may be materially impracticable or that would violate, and obtain required consentsor cause any of them not to comply with, waivers or any additional instruments necessary from, Third Parties in order to consummate their continuing regulatory obligations (including those of the Transactions as promptly as practicable and in any event prior to UK Listing Rules of the Outside DateFCA).
(b) In furtherance Each of Parent, Purchaser and not in limitation the Company agrees that, between the date of this Agreement and the undertakings pursuant to this Section 6.9Acceptance Time, each of Parent 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) prepare cooperate and file any notification and report forms and related material required under coordinate with the HSR Act and any other applicable Antitrust Laws with respect to in the Transactions (if any)making of, and shall make, any additional filings or notifications and related material required pursuant to any Competition Law that are necessary, proper or advisable to permit consummation have not heretofore been made by such Person as soon as practicable after the date of the Transactions, as promptly as reasonably practicable (this Agreement but in no event later than ten five (105) Business Days from following the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Act)Agreement, (ii) provide or cause to be provided as promptly as reasonably practicable supply the other with any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) required in order to make such filings, and (iii) as promptly as practicable, take such actions as are necessary supply any additional information that reasonably may be required or advisable to obtain prompt expiration or termination requested by any Governmental Entity responsible for the enforcement of any applicable waiting period or other approval Law. Further, and for the avoidance of consummation doubt, without the written consent of the Transactions by the DOJ or FTC or other applicable Company, Parent and Purchaser will not enter into any agreement with any Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto Entity not to consummate the Transactions prior to the Outside Datetransactions contemplated by this Agreement.
(cd) Subject to Applicable LawWithout limiting the generality of anything contained in this Section 4.3, the Company and Parent and their respective counsel each party hereto shall (i) cooperate in all respects with each give the other in connection with parties prompt notice of the making or commencement of any filing request, inquiry, investigation, action or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry Proceeding by or before a any Governmental Authority relating Entity with respect to the Transactions, including Offer or any proceeding initiated of the other transactions contemplated by a private personthis Agreement, (ii) have keep the right to review in advance, and other parties notified as to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions and status of any material communication received such request, inquiry, investigation, action or given in connection with any proceeding by a private Person, in each case regarding any of the Transactionsother Proceeding, (iii) as subject to the approval of the relevant Governmental Entity (if required), promptly as practicable, inform each notify the other parties of any material oral or written communication (to or from any Governmental Entity regarding the Offer or any of the other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority transactions contemplated by this Agreement and (iv) as subject to the approval of the relevant Governmental Entity (if required), promptly as practicable furnish each provide to the other with parties copies of all correspondence, filings and any written communications between them received or their Subsidiaries provided by such party, or Affiliatesany of its Subsidiaries, on the one hand, and from or to any Governmental Authority or its respective staff, on the other hand, Entity with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under Offer or any other transactions contemplated by this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust LawsAgreement; provided, that each of the parties shall (iA) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of Parent and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems reasonably and in good ▇▇▇▇▇ ▇▇▇▇▇ advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 4.3 as “Antitrust Counsel Only Material.” Notwithstanding anything ”; and (B) no party shall be required to the contrary in this Section 6.9, materials provided notify or provide to the other party or its counsel may be redacted to remove references concerning parties any private correspondence with the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject SIC with respect to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority Offer or any other Person so as to enable transactions contemplated by this Agreement. Such materials and the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior information contained therein shall be given only to the Outside Dateoutside counsel of the recipient and will not be disclosed by such outside counsel to employees, including proposingofficers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent, negotiatingPurchaser or the Company, committing as the case may be) or its legal counsel. Each party hereto will consult and cooperate with the other parties with respect to and effectingprovide any necessary information and assistance as the other parties may reasonably request with respect to all notices, by consent decree, hold separate orderssubmissions, or otherwise, the sale, divestiture, license or other disposition of filings made by such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, party with any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority Entity or any other Person under Antitrust Laws that would otherwise have 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 effect of preventing or materially delaying other parties to review and discuss in advance and consider in good faith the consummation views of the Transactions; provided thatother parties in connection with any filing, notwithstanding analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent Offer or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in other transactions contemplated by this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries)Agreement. In addition, Parent shall defend through litigation on the merits any claim asserted in court except as may be prohibited by any Governmental Authority Entity or by any applicable Law, in connection with any such request, inquiry, investigation, action or other person under Antitrust Laws Proceeding other than the matters contemplated by Section 4.8, in order connection with or related to avoid entry ofthe 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 vacated access to and be consulted in connection with any document, opinion or terminatedproposal made or submitted to any Governmental Entity in connection with such request, any Order (whether temporaryinquiry, preliminary investigation, action or permanent) that would prevent the Closing occurring prior to the Outside Dateother Proceeding.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Nothing contained in this Agreement shall give Parent) shall enter into any agreement, transaction directly or any agreement indirectly, the right to effect any transaction (including any merger control or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain direct the timely expiration or termination operations of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable Company prior to the Transactions, (ii) avoid Acceptance Time. Prior to the entry ofAcceptance Time, the commencement of litigation seeking the entry ofCompany shall exercise, or subject to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with 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.)
Efforts. (a) Subject to the terms and conditions of this Agreement, including each of the proviso to parties hereto shall cooperate with the first sentence of Section 6.9(d), the Company other parties and Parent shall use (and shall cause their respective Subsidiaries toAffiliates to use) each use their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to as promptly as reasonably practicable (i) take, or cause to be taken, all actions actions, and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing doing, all things necessary, proper or advisable under Applicable Law to cause the conditions to Closing to be satisfied as promptly as reasonably practicable and to consummate and make effective, in the most expeditious manner reasonably practicable, the Transactions, including preparing and filing promptly and fully all documentation to effect all necessary, proper and advisable filings, notices, petitions, statements, registrations, declarations, submissions of information, applications, reports and other documents, (iii) obtain all necessary actionsapprovals, consents, registrations, waivers, registrations, permits, authorizations, ordersexemptions, consents clearances, orders and approvals other confirmations from Governmental Authorities, the expiry or early termination of any applicable waiting periods, and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental AuthoritiesAuthority or third party necessary, in order proper or advisable to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date Transactions, and (iiiii) execute and deliver required notices or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside DateTransactions.
(b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.9foregoing, each of Parent and the Company and Parent shall each use (and shall cause their respective controlled Affiliates to use) its reasonable best efforts to (i) prepare and file take all action necessary to ensure that no Takeover Law is or becomes applicable to any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to of the Transactions (if any), and refrain from taking any additional filings or notifications actions that would cause the applicability of such Laws and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by if the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination restrictions of any Takeover Law become applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as take all action necessary to enable the parties hereto to consummate ensure that the Transactions prior to may be consummated as promptly as practicable on the Outside Dateterms contemplated by this Agreement and otherwise lawfully minimize the effect of such Takeover Law on the Transactions.
(c) Subject to Applicable Law, Parent shall exclusively control (but shall consult with the Company and Parent and their respective counsel shall with respect to), (i) cooperate in all respects with each the timing and strategy for obtaining any approvals, consents, registrations, waivers, permits, authorizations, exemptions, clearances, orders and other confirmations from any Governmental Authority in connection with the Transactions and (ii) 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 before, or any negotiations with, a Governmental Authority relating to the TransactionsTransactions and of all other regulatory matters incidental thereto.
(d) In furtherance and not in limitation of the foregoing, including each of the parties hereto agrees to make (and shall cause their respective Affiliates to make) an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable following the date of this Agreement, and in any proceeding initiated by a private person, (ii) have event within 20 Business Days following the right to review in advancedate hereof, and to supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the extent practicable HSR Act 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. Without limiting the foregoing, Parent and the Company shall consult each use (and shall cause their respective controlled Affiliates to use) reasonable best efforts to secure the expiration or termination of all applicable waiting periods under the HSR Act or any other Antitrust Law 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. Each of the Company, Parent and MergerCo shall not take (and each of the Company and Parent shall cause their respective controlled Affiliates not to take) any action with the intention to, or that would reasonably be expected to, hinder or delay the expiration or termination of any waiting period under the HSR Act or the obtaining of approval of the DOJ or FTC as necessary (including, in the case of Parent and its controlled Affiliates, acquiring or merging with any business, Person or division thereof, or entering into a definitive agreement with respect thereto, if doing so could reasonably be expected to have such effect). Nothing in this Agreement shall require any party hereto 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. Neither Parent nor the Company shall commit (and shall cause their respective Affiliates not to commit) to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or any other Antitrust Laws or enter into a timing agreement with any Governmental Authority, without the prior written consent of the other on, any material filing made with, or written materials party (such consent not to be submitted tounreasonably withheld, delayed or conditioned).
(e) In furtherance and not in limitation of the foregoing, each of the parties hereto shall use (and shall cause their respective Affiliates to use) its reasonable best efforts to (i) promptly cooperate in all respects with each other in connection with any necessary, proper or advisable submissions, consents, approvals, filings, petitions, statements, licenses, permits, authorizations, declarations, notifications, registrations, submissions of information, applications, reports, waivers, exemptions, clearances, orders, confirmations and other documents with the FTC, the DOJ or any other Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry by or before the FTC, the DOJ or any other Governmental Authority relating to the Transactions or any proceeding initiated by a private Person, (ii) keep the other parties hereto informed in all material respects and on a reasonably timely basis of any material written or verbal communication received by such party from, or given by such party to, the FTC, the DOJ or any other Governmental Authority (including by promptly sending the other parties hereto a copy of all documents, information, correspondence or other communications) and of any material written or verbal communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactions, (iii) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, subject to applicable Laws and the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect Confidentiality Agreement relating to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects exchange of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advanceinformation, and to the extent practicable each will reasonably practicable, promptly consult with the other on, all the parties hereto with respect to information relating to the other party parties hereto and its their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or third Person or the FTC, the DOJ or any other Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any inthan “Transaction-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, Related Documents,” as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood used in the private equity industry) of Parent or any of its Affiliates (other than the Company rules and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period regulations under the HSR Act, (iv) to the extent permitted by the FTC, the DOJ or such other applicable Governmental Authority or other Person, promptly give the other parties hereto the opportunity to attend and participate in such meetings and conferences (whether in person, by telephone or otherwise), and (v) promptly obtain all consents, registrations, waivers, exemptions, approvals, confirmations, clearances, permits, certificates, orders, and authorizations necessary, proper or advisable to be obtained from, or renewed with, the FTC, the DOJ and any other Governmental Authority. Prior to submitting any document or any information relating to the Transactions or the authorizationsparties hereto (whether formally or informally, consentsin draft form or final form) to the FTC, Orders and approvals required under the DOJ or any other Governmental Authority, a party hereto shall send the other parties hereto such document or information reasonably in advance of such submission, and such document or information shall not be submitted to the FTC, the DOJ or any other Governmental Authority without the prior written consent of the other parties hereto (such consent not to be unreasonably withheld, conditioned or delayed).
(f) Except as expressly contemplated, required or permitted by this Agreement or as required by applicable Antitrust Law, applicable Judgment or a Governmental Authority, during the period from the date of this Agreement to the TransactionsEffective Time (or such earlier date on which this Agreement is terminated pursuant to Section 7.01), (ii) avoid neither Parent nor MergerCo shall, and each of Parent and MergerCo shall cause their controlled Affiliates not to, without the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation prior written consent of the TransactionsCompany, enter into any merger, acquisition or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance similar transaction involving any Person or business that competes with the terms and conditions of this AgreementCompany that would, individually or in the aggregate, have a Parent Material Adverse Effect.
Appears in 1 contract
Sources: Merger Agreement (ZimVie Inc.)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, including each of the proviso to the first sentence of Section 6.9(d), the Company and Parent parties hereto shall (and shall cause their respective Subsidiaries to) each use their its reasonable best efforts to take, or to cause to be taken, all actions actions, to file, or cause to be filed, all documents and to do, or to cause to be done, and to assist and to cooperate with the other parties in doing doing, all things reasonably necessary, proper or advisable under Applicable Law to consummate (as defined in Section 251(h) of the DGCL) and make effective, as promptly as practicable, the Offer and Merger and the other transactions contemplated hereby, including (i) obtain the obtaining of all necessary actionsactions or nonactions, waivers, registrationsconsents, permitsclearances, authorizationsapprovals, orders, consents and approvals from Governmental Authorities, the expiry expirations or early termination terminations of any applicable waiting periods, including the Company Approvals and make Parent Approvals, from Governmental Authorities and the making of all necessary registrations and filings (including filings with Governmental Authorities, if any) and take the taking of all steps as may be reasonably necessary to obtain an approval approval, clearance, or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, (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 (as defined in order Section 251(h) of the DGCL) of the Offer or the Merger and the other transactions contemplated hereby and (v) the execution and delivery of any additional instruments reasonably necessary to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver required notices or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date.
(b) transactions contemplated hereby. In furtherance and not in limitation of the undertakings pursuant to this Section 6.9foregoing, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any)may, and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, shall the Company and Parent and their respective counsel shall (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) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring pay prior to the Outside Date.
Effective Time any fee, penalties or other consideration to any third party to obtain any consent or approval required for the consummation (eas defined in Section 251(h) Neither Parent nor Merger Sub (nor of the DGCL) of the Offer or the Merger. No party hereto shall take any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) action that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: 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 Parent Approvals, from Governmental Authorities.
(ib) obtain Subject to the timely expiration or termination of terms and conditions herein provided and without limiting the waiting period foregoing, if required under the HSR Act, or the authorizationsCompany and Parent shall (i) promptly, consentsbut in no event later than the tenth (10th) Business Day after the date of this Agreement, Orders file any and approvals all Notification and Report Forms required under any other applicable Antitrust Law, applicable the HSR Act with respect to the TransactionsOffer, the Merger and the other transactions contemplated hereby, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act, (ii) avoid the entry of, the commencement of litigation seeking the entry ofuse 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 effect the dissolution ofbe obtained from, any injunction, temporary restraining order third parties or other Order that would prevent or materially delay Governmental Authorities in connection with the execution and delivery of this Agreement and the consummation of the Transactionstransactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, Authorizations or approvals, (iii) supply to any Governmental Authority as promptly as practicable any additional information or documentary material that may be requested pursuant to any Regulatory Law or by such Governmental 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 reasonably necessary, proper or advisable to consummate and make effective the Offer, the Merger and the other transactions contemplated hereby.
(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 Authority, the Company and Parent shall keep each other apprised of the status of matters relating to the consummation (as defined in Section 251(h) of the DGCL) of the Offer, the Merger and the other transactions contemplated by this Agreement, including promptly furnishing the other with copies of notices or other communications received by the Company or Parent, as the case may be, or any of their respective Subsidiaries or Affiliates, from any third party and/or any Governmental Authority with respect to such Merger or transactions. The Company and Parent shall 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 Authority. Each of the Company and Parent agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental 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 Authority, 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 6.10, 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 the Company and Parent shall cooperate in all respects with each other and shall use 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 (as defined in Section 251(h) of the DGCL) of the 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 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 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) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance any Law with the terms and conditions purpose of this Agreementprotecting the national security or the national economy of any nation.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, including each of the proviso parties to the first sentence of Section 6.9(d), the Company and Parent this Agreement shall (and shall cause their respective Subsidiaries to) each use their its reasonable best efforts to taketake promptly, or cause to be taken, all actions actions, and to dodo promptly, or cause to be done, and to assist and cooperate with the other parties in doing doing, all things necessary, proper or advisable under Applicable Law applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement, including (i) obtain the obtaining of all necessary actionsactions or nonactions, waivers, registrationsconsents, permitsclearances, authorizationsapprovals, orders, consents and approvals from Governmental Authorities, the expiry expirations or early termination terminations of any applicable waiting periods, including the Specified Approvals and make the Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Authorities, if any) and take the taking of all steps as may be reasonably necessary to obtain an approval approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental AuthoritiesEntity, in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver required notices or any necessary additional instruments to, and obtain required the obtaining of all consents, approvals or waivers from third parties 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 Merger and the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and transactions contemplated by this Agreement; provided, however, that in no event shall Parent, Company, or any event of their respective Subsidiaries or Joint Ventures be required to pay prior to the Outside DateEffective 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) In furtherance Subject to the terms and not in limitation of conditions herein provided and without limiting the undertakings pursuant to this Section 6.9foregoing, each of Parent and the Company parties shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any)promptly, and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from after the date of this Agreement for the filing of the hereof, file any and all required notification and report forms and related material required under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (ii) provide or cause to be provided and file as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC other required filings and/or notifications under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) Laws, with respect to the Merger and (iii) as promptly as practicablethe other transactions contemplated by this Agreement, take such actions as are necessary or advisable and use their reasonable best efforts to obtain prompt cause the expiration or termination of any applicable waiting period periods under the HSR Act or any other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Antitrust Law, the Company and Parent and (ii) use their respective counsel shall (i) reasonable best efforts to cooperate in all respects with each other in connection with (x) determining whether any filing filings are required to be made with, or submission with a 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 Authority Entities in connection with the Transactions execution and in connection with any investigation or other inquiry by or before a Governmental Authority relating to delivery of this Agreement and the Transactions, including any proceeding initiated by a private person, (ii) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any consummation of the Transactionstransactions contemplated by this Agreement and (y) 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, inform each other of practicable any material communication (additional information or documents that may be requested pursuant to any other material correspondence Law or memoranda) received from, or given to, the DOJ or the FTC or any other applicable by such Governmental Authority Entity and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or use their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ best efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, 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 by this Agreement. Company and Parent shall be equally responsible for all filing fees under the HSR Act, any other Antitrust Laws and/or any such other laws or regulations applicable to any of Parent or its Affiliates. Company and all steps necessary Parent shall not (and shall cause their Subsidiaries and Affiliates not to) agree to avoid stay, toll or eliminate each and every impediment 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 Antitrust Law, without the prior written consent of the other party.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any Antitrust Law that may be asserted or if any Action is instituted by any Governmental Authority Entity or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in private party challenging any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assetstransactions contemplated hereby as violative of any Antitrust Law, properties each of Parent and Company shall (i) oppose or businesses defend against any action to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary prevent or advisable in order to avoid the entry of, enjoin consummation of this Agreement (and the commencement of litigation seeking the entry oftransactions contemplated herein), and/or (ii) take such action as necessary to overturn any regulatory action by any Governmental Entity to prevent or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the enjoin consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them Agreement (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiariestransactions contemplated herein), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or defending any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court Action brought by any Governmental Authority or any other person under Antitrust Laws Entity in order to avoid entry of, or to have vacated vacated, overturned or terminated, including by appeal if necessary, in order to resolve any Order (whether temporary, preliminary such objections or permanent) that would prevent challenge as such Governmental Entity or private party may have to such transactions under such Antitrust Law so as to permit consummation of the Closing occurring prior to the Outside Datetransactions contemplated by this Agreement.
(ed) Neither Parent nor Merger Sub (nor The parties shall cooperate and consult with each other in connection with the making of all registrations, filings, notifications, communications, submissions, and any other Subsidiary material actions pursuant to this Section 6.11, and, subject to applicable legal limitations and the instructions of any Governmental Entity, Company, on the one hand, and Parent) , on the other hand, shall enter into any agreementkeep each other apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement, transaction including promptly furnishing the other with copies of notices or other material communications received by Company or Parent, as the case may be, or any agreement of their respective Subsidiaries or Affiliates, from any third party and/or any Governmental Entity with respect to effect such transactions. Subject to applicable Law relating to the exchange of information, Company, on the one hand, and 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 transaction 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 (including 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 merger materials redacted pursuant to this subclause (y), and (z) as necessary or acquisition) appropriate to address reasonable privilege concerns or reasonable confidentiality concerns relating to proprietary or commercially sensitive information regarding Company and its operations, provided that would reasonably be expected Company shall contemporaneously provide to prevent or materially delay Parent’s or Merger Sub’s ability to: counsel unredacted copies of any materials redacted pursuant to this subclause (i) obtain the timely expiration or termination z). Each of the waiting period under 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 HSR Acttransactions contemplated by this Agreement unless it consults with the other parties in advance and, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactionsextent not prohibited or required otherwise by such Governmental Entity, (ii) avoid gives the entry of, other party or if advisable the commencement of litigation seeking other parties’ outside counsel the entry of, or opportunity to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders attend and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this Agreementparticipate.
Appears in 1 contract
Sources: Merger Agreement (Seadrill LTD)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, including each of the proviso to the first sentence of Section 6.9(d), the Company and Parent parties hereto shall (and shall cause their respective Subsidiaries to) each use their all reasonable best efforts to taketake promptly, or cause to be taken, all actions actions, and to dodo promptly, or cause to be done, and to assist and cooperate with the other parties in doing doing, all things necessary, proper or advisable under Applicable Law applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement as promptly as practicable after the date hereof and in any event prior to the End Date, including (i) obtain the obtaining of all necessary actionsactions or nonactions, waivers, registrationsconsents, permitsclearances, authorizations, orders, consents approvals and approvals from Governmental Authorities, the expiry expirations or early termination terminations of any applicable waiting periods, including the Specified Approvals and make the Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Authorities, if any) and take the taking of all steps as may be reasonably necessary to obtain an approval approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental AuthoritiesEntity, in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver required notices or any the obtaining of all necessary additional instruments to, and obtain required 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 Merger and the other transactions contemplated by this Agreement, (iv) the execution and delivery of any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable transactions contemplated by this Agreement and in any event prior to the Outside Date.
(bv) In furtherance and not in limitation of the undertakings pursuant to this Section 6.9promptly, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) 15 Business Days from 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 the Company or any of its Subsidiaries 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 for under any contract or agreement or otherwise.
(b) Subject to the filing of terms and conditions herein provided and without limiting the foregoing, the Company, Parent and its Subsidiaries and Merger Sub shall (i) promptly, but in no event later than 15 Business Days after the date hereof, file or cause to be filed any and all required notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or with respect to the Merger and the other transactions contemplated by other Governmental Authorities under applicable Antitrust Laws (if any) this Agreement, and (iii) as promptly as practicable, take such actions as are necessary or advisable use all reasonable best efforts to obtain prompt cause the expiration or termination of any applicable waiting period or other approval of consummation of periods under the Transactions by the DOJ or FTC or other applicable Governmental AuthoritiesHSR Act, including (ii) use all reasonable best efforts to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (i) cooperate in all respects with each other in connection with (A) determining whether any filing other filings are required to be made with, or submission with a consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any Governmental Authority Entities pursuant to any Antitrust Law in connection with the Transactions execution and in connection with any investigation or other inquiry by or before a Governmental Authority relating to delivery of this Agreement and the Transactions, including any proceeding initiated by a private person, (ii) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any consummation of the Transactionstransactions contemplated hereby and (B) promptly making all such filings and timely obtaining all such consents, permits, authorizations, waivers, clearances, approvals or 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 practicable, inform each other of reasonably practicable any material communication (additional information or documents that may be requested pursuant to any other material correspondence such Antitrust Law or memoranda) received from, or given to, the DOJ or the FTC or by such Governmental Entity pursuant to any other applicable Governmental Authority Antitrust Law and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, all such further action as may be necessary 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 any other Governmental Entity may assert pursuant to any Antitrust Law with respect to the transactions contemplated hereby, and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person Entity with respect to the Merger so as to enable the parties hereto Closing to consummate the Transactions occur as promptly as practicable, practicable after the date hereof (and in any event prior to no later than the Outside End Date), including (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, order or otherwise, the sale, divestiture, license license, hold separate or disposition of any and all of the share capital or other disposition equity voting interest, assets (whether tangible or intangible), products or businesses of such Parent or its Subsidiaries or of the Company or its Subsidiaries and (y) otherwise taking or committing to take any actions that after the Closing Date would limit Parent’s or its Subsidiaries’ assets(including the Surviving Corporation’s) freedom of action with respect to, properties or businesses their ability to retain, one or more of their Subsidiaries’ (including the assetsSurviving Corporation’s) assets (whether tangible or intangible), properties products, or businesses to businesses, in each case as may be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable required in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order order in any Proceeding by a Governmental Authority or Action pursuant to any other Person under Antitrust Laws Law that would otherwise have the effect of preventing or materially the Closing, delaying the consummation 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 Transactions; provided that, notwithstanding Company with respect thereto. Notwithstanding anything to the foregoing provisions of this Section 6.9(d) or any other provision of contrary in this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything nothing in this Section 6.9 5.7(b) or elsewhere in this Agreement to the contrary, shall require Parent shall not be required or Merger Sub to take (nor shall the Company or any Company Subsidiaries be permitted agree to take) 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 the Company nor any Affiliate of Parentits Subsidiaries shall be required to become subject to, including or consent or agree to or otherwise take any affiliated investment funds action with respect to, any requirement, condition, understanding, agreement or any portfolio company (as such term is commonly understood in order to sell, divest, license, hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the private equity industry) assets, operations or business of Parent the Company or any of its Affiliates Subsidiaries, unless such requirement, condition, understanding, agreement or order is binding on or otherwise applicable to the Company or its Subsidiaries only from and after the Effective Time in the event that 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.
(c) The Company, Parent and Merger Sub shall cooperate and consult with each other than 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, the Company, on the one hand, and 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 the Company or Parent, as the case may be, or any of their respective Subsidiaries or HSR Affiliates, from any third party and/or any Governmental Entity pursuant to any Antitrust Law with respect to such transactions 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. Subject to applicable Law relating to the exchange of information, the Company, on the one hand, and 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 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 the Company, Parent and Merger Sub agrees not to participate in any 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 5.7, but subject to the other provisions of this Section 5.7, if any administrative or judicial action or proceeding, including proposingany proceeding by a private party, negotiatingis instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement as violative of any Law, committing each of the Company, Parent and Merger Sub shall cooperate in all respects with each other and shall use their respective reasonable best efforts to contest and effectingresist any such Action or proceeding and to have vacated, by consent lifted, reversed or overturned any Action, decree, hold separate ordersjudgment, or otherwise, the sale, divestiture, license injunction or other dispositionorder, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) , that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreementis in effect and that prohibits, transaction prevents or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the restricts consummation of the Transactions, or (iii) obtain all Merger and the other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of transactions contemplated by this Agreement.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of this Agreement, including the proviso to the first sentence of Section 6.9(d), the Company and Parent shall (and shall cause their respective Subsidiaries to) each party will use their reasonable best efforts to take, or cause to be taken, all actions and to dodo promptly, or cause to be donedone promptly, and to assist and cooperate with the each other parties in doing doing, all things necessary, proper or advisable under Applicable Law to consummate and make effective the Mergers and the other transactions contemplated by this Agreement, including (i) obtain preparing and filing as promptly as practicable all documentation to effect all necessary actionsfilings, notices, petitions, statements, registrations, submissions of information, applications and other documents to obtain as promptly as practicable all waiting period expirations or terminations, consents, clearances, waivers, registrations, permits, authorizationslicenses, orders, consents registrations, approvals, permits and approvals authorizations necessary or advisable to be obtained from any third party and/or any Governmental Authorities, Authority in order to consummate the expiry or early termination of any applicable waiting periods, Mergers and make all necessary registrations the other transactions contemplated by this Agreement and filings (including filings with Governmental Authorities, if anyii) and take taking all steps as may be reasonably necessary necessary, subject to the limitations in this Section 7.2, to obtain an approval all such waiting period expirations or waiver fromterminations, or to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver required notices or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary fromclearances, Third Parties in order to consummate the Transactions as promptly as practicable waivers, licenses, orders, registrations, approvals, permits and in any event prior to the Outside Dateauthorizations.
(b) In furtherance and not in limitation of the undertakings pursuant to this covenants of the parties contained in Section 6.97.2(a), each of Parent and the Company parties shall (i) prepare and file give any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect notices to the Transactions (if any)third parties, and each of the parties shall use, and cause each of their respective Affiliates to use, its reasonable best efforts to obtain any additional filings or notifications and related material third party consents that are necessary, proper or advisable to permit consummation consummate the Mergers and the other transactions contemplated by this Agreement. Each of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from parties will furnish to the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any other such necessary information and documentary material that reasonable assistance as the other may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (i) cooperate in all respects with each other in connection with any filing or submission with a Governmental Authority request in connection with the Transactions and in connection preparation of any required filings or submissions with any investigation or other Governmental Authority and will cooperate in responding to any inquiry by or before from a Governmental Authority relating to the TransactionsAuthority, including promptly informing the other parties of such inquiry, consulting in advance before making any proceeding initiated by presentations or submissions to a private personGovernmental Authority, (ii) and supplying each other with copies of all material correspondence, filings or communications between either party and its Affiliates and any Governmental Authority with respect to this Agreement. To the extent reasonably practicable, the Parties or their Representatives shall have the right to review in advance, advance and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other others on, all the information relating to the other party others and its respective Subsidiaries, as the case may be, each of their Affiliates that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquirythe Merger and the other transactions contemplated by this Agreement, investigation or proceeding with respect to except that confidential competitively sensitive business information may be redacted from such exchanges. To the Transactionsextent reasonably practicable, (ii) promptly inform each other none of any material communication (or any other material correspondence or memoranda) received fromthe parties shall, or given nor shall they permit their respective Representatives to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate independently in any material discussion meeting or meeting engage in any substantive conversation with any Governmental Authority in respect of any filing, investigation or other inquiry without giving the other parties reasonable prior notice of such meeting or conversation and, to the extent permitted by applicable Law, without giving the other parties the opportunity to attend or participate (whether by telephone or in person) in any such meeting with such Governmental Authority.
(c) In connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate obtaining any competitively sensitive material provided approval or consent from any Person (other than a Governmental Authority) with respect to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything Mergers, the Company or any of its Affiliates shall not pay or commit to the contrary in this Section 6.9, materials provided pay to the other party any Person whose approval or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client consent is being solicited any cash or other privilege consideration or confidentiality concernsincur any liability to such Person without the prior written consent of Parent (such consent not to be unreasonably withheld, conditioned or delayed).
(d) In furtherance of the undertakings Each of Parent pursuant and Merger Sub shall use its reasonable best efforts to Section 6.9(a) and Section 6.9(b), but subject cause Partner to effect the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions Plan Closing as promptly as practicable, practicable and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms Alternative Plan Sponsor Agreement, including by using reasonable best efforts to cause Partner to take all necessary or desirable action to obtain as promptly as practicable all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and conditions of this authorizations necessary or desirable to be obtained from any third party and/or any Governmental Authority in order to effect the Plan Closing in accordance with the Alternative Plan Sponsor Agreement.
Appears in 1 contract
Sources: Merger Agreement (Welltower Inc.)
Efforts. (a) Subject to Each of the terms Company, Holdings, Parent and conditions of this Agreement, including the proviso to the first sentence of Section 6.9(d), the Company and Parent Merger Sub shall (and shall cause their respective Subsidiaries to) each use their reasonable its best efforts to (i) take, or cause to be taken, all actions appropriate action and to do, or cause to be done, and to assist and cooperate with the other parties in doing doing, all things necessary, proper or advisable under Applicable applicable Law or otherwise to (i) obtain all necessary actions, waivers, registrations, permits, authorizations, orders, consents and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periods, consummate and make all necessary registrations effective the Merger and filings the other transactions contemplated by this Agreement as promptly as practicable, (including filings with Governmental Authorities, if anyii) and take all steps such actions as may be reasonably necessary required to obtain an approval or waiver from, or cause the expiration of the notice periods under Competition Laws with respect to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the Transactions such transactions as promptly as practicable and in after the execution of this Agreement, (iii) obtain from any event prior Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations or orders required to be obtained by Holdings, Parent, Merger Sub or the Outside Date and (ii) deliver required notices Company, or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order of their respective Subsidiaries to consummate effect the Transactions as promptly as practicable and in any event Closing by not later than three (3) Business Days prior to the Outside Date.
, and to avoid any action or proceeding by any Governmental Entity (b) In furtherance and not including those in limitation connection with the pre-merger notification obligations of the undertakings pursuant to this Section 6.9, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under 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, including the Merger, (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 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) as promptly as practicable, make or cause to be made all necessary applications and filings, make any other applicable Antitrust Laws 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 Transactions Merger required under any Competition Laws and (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, viii) as promptly as reasonably practicable after the date hereof, make all necessary filings (but and in no any event later than file all required HSR Act notifications within ten (10) Business Days from after the date of hereof), and thereafter make any other required submissions, and pay any fees due in connection therewith, with respect to this Agreement for and the filing of the notification and report forms and related material Merger required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental AuthoritiesLaw. The Company, including to cause to be lifted or vacated any restraintHoldings, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel Merger Sub shall (i) cooperate in all respects with each other in connection with (A) preparing and filing the Proxy Statement and any Other Filings, (B) determining whether any action by or in respect of, or filing or submission with a with, any Governmental Authority Entity is required, 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) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any consummation of the Transactions, (iii) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority Merger and (ivC) as promptly as practicable furnish each other with copies of all correspondenceseeking any such actions, filings and written communications between them consents, approvals or their Subsidiaries waivers or Affiliatesmaking any such filings. The Company, on the one hand, and any Governmental Authority or its respective staffHoldings and Parent, on the other hand, with respect shall furnish to each other all information required for any application or other filing under the Transactions. Notwithstanding the foregoing, Parent shall, following consultation rules and regulations of any applicable Law in connection with the Company and after giving due consideration transactions contemplated by this Agreement. No party to the Company’s views and acting reasonable and in good faith, and subject this Agreement shall consent to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects any delay of the parties’ efforts with respect Closing at the behest of any Governmental Entity without the prior written consent of the other parties to the HSR Act and other applicable Antitrust Laws with respect to the Transactionsthis Agreement. Holdings, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearanceshall not, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, except as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted consented to remove references concerning in advance in writing by the valuation of the Acquired Companies and as necessary to address reasonable attorney-client Company, directly or other privilege indirectly through one or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such more of its and its Subsidiaries’ assetsaffiliates, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) take any action, concession including acquiring or undertakingmaking any investment in any corporation, unless such actionpartnership, concession limited liability company or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company other Person or any Company Subsidiaries be permitted to take) any action with respect to Parent division or any Affiliate of Parentassets thereof, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent cause a delay in or materially delay Parent’s or Merger Sub’s ability to: (i) obtain jeopardize the timely expiration or termination satisfaction of the waiting period under the HSR Act, conditions contained in Article 6 or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this Agreement.Merger. Without limiting this
Appears in 1 contract
Efforts. From the date hereof until the earlier of the Closing and the date that this Agreement is terminated, the Investors and the Company shall (ai) Subject use commercially reasonable efforts to cooperate with each other in (A) 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 other Governmental Entities in connection with the terms execution and conditions delivery of this AgreementAgreement and the consummation of the transactions contemplated hereby and (B) timely making all such filings and timely obtaining all such consents, including permits, authorizations or approvals; (ii) use commercially reasonable efforts to 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; (iii) promptly inform the proviso to the first sentence other party of Section 6.9(d)any substantive meeting, the Company and Parent shall discussion, or communication with any Governmental Entity (other than any taxing authority) (and shall cause their respective Subsidiaries tosupply to the other party any written communication or other written correspondence or memoranda prepared for such purpose, subject to applicable Laws relating to the exchange of information or as necessary to preserve attorney-client privilege) each in respect of any filings, investigation or inquiry concerning the transactions contemplated hereby, and shall consult with the other party in advance and, to the extent permitted by such Governmental Entity, give the other party the opportunity to attend and participate thereat and (iv) use their commercially reasonable best efforts to take, or cause to be taken, all other actions and to do, or cause to be done, and to assist and cooperate with the all other parties in doing all things necessary, proper or advisable under Applicable Law to (i) obtain consummate the Closing and the other transactions contemplated hereby, including taking all such further action as may be necessary actions, waivers, registrations, permits, authorizations, orders, consents and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periods, and make all necessary registrations and filings (including filings with Governmental Authoritiesto resolve such objections, if any) and take all steps , as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver required notices or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date.
(b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.9, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required asserted under the HSR Act and any other applicable Antitrust Laws Law with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of transactions contemplated hereby. The Company shall reimburse the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of this Agreement Investors for the all filing of the notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested fees incurred by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (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) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, Investors with respect to all filings contemplated by this Section 4.3 within five Business Days of the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration date each such fee is invoiced by such Investors to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this Agreement.
Appears in 1 contract
Efforts. (a) Subject to From and after the terms date hereof, Purchaser and conditions of this AgreementSeller shall, including the proviso to the first sentence of Section 6.9(d), the Company and Parent shall (and shall cause their respective Subsidiaries Affiliates to) each , use their reasonable respective best efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing all things necessary, proper or advisable under Applicable any applicable Law to (i) obtain all necessary actions, waivers, registrations, permits, authorizations, orders, consents and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periods, consummate and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver required notices or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date.
(b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.9, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, effective as promptly as reasonably practicable (but subject to the proviso to the first sentence of Section 2.3) the Transaction and the other transactions contemplated by this Agreement, 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 no event later than ten Section 8.1) and to consummate the Transaction and the other transactions contemplated by this Agreement as soon as practicable and (10ii) Business Days from 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, use their respective best efforts 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 Entities (or Subsidiaries thereof) or any of their Affiliates in connection with the Transaction or the other transactions contemplated by this Agreement. Additionally, Purchaser and Seller shall not, and shall cause their respective Affiliates not to, take any action after the date of this Agreement for that would reasonably be expected to impair or materially delay the filing obtaining of, or result in not obtaining, any Regulatory Approval necessary to be obtained prior to the 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 business or corporation, partnership or other 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 Regulatory Approval necessary to be obtained prior to the Closing.
(b) Prior to the Closing, Purchaser and Seller shall each keep the other reasonably apprised of the notification status of matters relating to the completion of the Transaction and report forms the other transactions contemplated by this Agreement and related work cooperatively in connection with obtaining all required Regulatory Approvals. In that regard, prior to the Closing, subject to the Confidentiality Agreements and Section 5.3, each Party shall promptly 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 Agreements 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 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 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 required under from any Governmental Entity with respect to the HSR Act)Transaction or the other transactions contemplated by this Agreement, (ii) provide then such Party will make, or cause to be provided as made, promptly as reasonably practicable and after consultation with the other Party, an appropriate response in compliance with such request. Neither Party nor its respective Affiliates or Representatives shall participate in any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other meeting with any Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (i) cooperate in all respects with each other Entity in connection with any filing this Agreement and the Transaction or submission with a Governmental Authority the other transactions contemplated by this Agreement (or make oral submissions at meetings or in connection telephone or other conversations) unless it consults with the Transactions and other Party in connection with any investigation or other inquiry by or before a Governmental Authority relating to the Transactionsadvance and, including any proceeding initiated by a private person, (ii) have the right to review in advance, and to the extent practicable each shall consult not prohibited by such Governmental Entity, gives the other onParty the opportunity to attend and participate thereat. Subject to the Confidentiality Agreements and Section 5.3, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with each Party shall furnish the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other Party with copies of all correspondence, filings correspondence and written communications Filings (and memoranda setting forth the substance thereof) between them it or their Subsidiaries any of its Affiliates or AffiliatesRepresentatives, on the one hand, and any Governmental Authority or its respective staffEntity, on the other hand, with respect to this Agreement and the Transactions. Notwithstanding Transaction or the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faithother transactions contemplated by this Agreement, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult furnish the other on, all the Party with such necessary information relating to and reasonable assistance as the other party and its respective Subsidiaries, as the case Party may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority reasonably request in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other its preparation of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect Filings to any in-person discussion or meeting), such Governmental Entity. Purchaser and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent Seller may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 Agreement as “Antitrust Counsel Only Materialoutside counsel only.” Notwithstanding anything Such materials and the information contained therein shall be given only to the contrary 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 this Section 6.9advance 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 the other party or its counsel this Agreement may be redacted (i) to remove references concerning the valuation of or future plans for the Acquired Companies Business or the Sale Process, (ii) as necessary to comply with contractual obligations or applicable Law and (iii) as necessary to address reasonable attorney-client or 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 event no later than ten (10) 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 other privilege or confidentiality concernsFilings under applicable Antitrust Laws, but in any event, any initial draft notifications of any other Filings shall be submitted no later than twenty (20) days after the date of this Agreement.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) foregoing, and Section 6.9(b), but subject notwithstanding anything in this Agreement to the proviso to this sentencecontrary, Parent Purchaser shall, and shall takecause its Affiliates to, or cause to take all such action as may be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust applicable Law that may be asserted by with respect to the transactions contemplated hereby and to resolve such objections, if any, as any Governmental Authority Entity or any other Person may assert under any applicable Law with respect to the transactions contemplated hereby, so as to enable the parties hereto Closing to consummate occur as soon as reasonably possible but subject to the Transactions as promptly as practicable, proviso to the first sentence of Section 2.3 (and in any event so as to enable the Closing to occur prior to the Outside Date). In furtherance of the foregoing, including 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, operations, rights, product lines, businesses or interests therein of the Business or of Purchaser or its Affiliates (and consent decree, hold separate orders, or otherwise, the to any sale, divestiture, license lease, license, transfer, disposition or other disposition encumbering by the Seller Entities of any assets of the Business or to any agreement by any of the Seller Entities to take any of the foregoing actions) and agree to make any material changes (including through a licensing arrangement) or restriction on, or other impairment of Purchaser’s ability to own, retain or operate, any such of its and its Subsidiaries’ assets, properties or licenses, product lines, businesses or of the assetsinterests therein or Purchaser’s ability to vote, properties or businesses to be acquired by Parent pursuant heretotransfer, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry ofreceive dividends, or otherwise exercise full ownership rights with respect to effect ownership interests in the dissolution ofBusiness or of Purchaser or its Affiliates, including any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws actions that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries may be required to agree be taken to (nor shall neutralize, mitigate or resolve any organizational conflict of interest to the Company or extent necessary to obtain any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the ClosingRegulatory Approval. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent Seller and its Affiliates shall not be required obligated to take (nor shall the Company or any Company Subsidiaries be permitted agree or commit to take) take any action with respect (i) that is not conditioned on the Closing or (ii) that relates to Parent any Excluded Assets or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood Retained Businesses; and in the private equity industry) of Parent no event shall Seller or any of its Affiliates (other than be required to be the Company 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 Subsidiaries)Affiliates shall have no direct or indirect obligation or Liability in respect of any such agreements, transactions or relationships, including proposingany indemnification obligations, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company for which Seller and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court Affiliates are not fully indemnified by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside DatePurchaser.
(e) Neither Parent nor Merger Sub Whether or not the Transaction is consummated, Purchaser shall be responsible for all filing and similar fees and payments payable to any Governmental Entity in order to obtain any Approvals pursuant to this Agreement, excluding, for avoidance of doubt, the fees of and payments to Seller’s legal and professional advisors and fees, costs and expenses solely related to any Approvals required by Seller or its Affiliates to complete the Pre-Closing Restructuring Steps that would not otherwise have been required in connection with the Transaction.
(nor any f) Notwithstanding anything in this Agreement to the contrary, except as required by Seller or its Affiliates to complete the Pre-Closing Restructuring Steps (and as would not otherwise have been required in connection with the Transaction), none of Seller, the other Subsidiary of Parent) shall enter into any agreement, transaction Seller Entities or any agreement 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 that may be required in connection with the Transaction (other than any Approval required to effect any transaction (including any merger or acquisition) the completion of the Pre-Closing Restructuring Steps that would reasonably not otherwise have been required in connection with the Transaction). 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 expected to prevent required in connection with the Transaction and the other transactions contemplated by this Agreement or materially delay Parent’s because of the termination of any Contract or Merger Sub’s ability to: (i) obtain the timely expiration any default under, or acceleration or termination of or loss of any benefit under, any Contract or other Purchased Asset as a result of the waiting period under the HSR Act, Transaction or the authorizationsother transactions contemplated by this Agreement; provided that Seller shall have complied in all material respects with its obligations hereunder. For the avoidance of doubt, consentsSeller’s and its Affiliates’ obligations under this Section 5.1 shall be subject in all respects to the applicable provisions of Section 2.13.
(g) As promptly as is reasonably practicable following execution and delivery of this Agreement and the receipt by Seller of all information relating to Purchaser and its Affiliates required in connection with such notifications, Orders and approvals Seller shall submit to DCSA, and, to the extent required under by Law, any other applicable Antitrust LawCSA, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation a notification of the Transactions, or (iiiTransaction and the other transactions contemplated by this Agreement pursuant to section 1-302(g) obtain all of the NISPOM. Seller and Purchaser shall reasonably cooperate in requesting from DCSA and any other authorizations, consents, Orders and approvals of Governmental Authorities necessary such CSA approval for the consummation continuation of all U.S. government facility security clearances necessary to conduct the Transactions Business in accordance with the terms and conditions of this Agreementall material respects as presently conducted.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Aecom)
Efforts. (a) Subject Each of the Company, Parent and Merger Sub shall use its respective reasonable best efforts to, subject to the terms and conditions of this AgreementSection 6.4, including the proviso to the first sentence of Section 6.9(d), the Company and Parent shall (and shall cause their respective Subsidiaries toi) each use their reasonable best efforts to take, or cause to be taken, all actions appropriate action and to do, or cause to be done, and to assist and cooperate with the other parties hereto in doing doing, all things necessary, proper or advisable under Applicable applicable Law or otherwise to consummate and make effective the Merger, the Offer and the other transactions contemplated by this Agreement as promptly as practicable; (iii) take all such actions (if any) as may be required 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) (I) obtain as promptly as practicable (A) from any Governmental Entity any and all necessary actionsconsents, notices, licenses, permits, waivers, registrations, permitsapprovals, authorizations, orders, consents registrations, rulings and approvals from Governmental Authoritiesclearances required to be obtained by Parent, Merger Sub or the expiry or early termination of any applicable waiting periods, and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary to obtain an approval or waiver fromCompany, or any of their respective Subsidiaries, to avoid an action or proceeding by, any Governmental Authorities, in order to consummate effect the Transactions Closing as promptly as practicable practicable, and in any event prior to the Outside Date and (ii) deliver required notices or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event not later than three Business Days prior to the Outside Date, and to avoid any action or proceeding by any Governmental Entity or any other Person, in connection with the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, including the Merger and the Offer, and (B) from any Third Party any and all consents, notices, licenses, permits, waivers, approvals, authorizations and registrations that are required to be obtained or made by Parent, Merger Sub or the Company, or any of their respective Subsidiaries, in connection with the transactions contemplated by this Agreement, and 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; and (II) prepare and file as promptly as practicable all documentation to effect all necessary applications, notices, petitions, filings, ruling requests, and other documents necessary to obtain the consents, approvals and other deliverables set forth in clauses (A) and (B) above, and take all reasonable steps as may be necessary to obtain all such consents, approvals and other deliverables; (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; and (v) 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, provided that all filing fees related to the filings by the parties hereto under any Competition Laws, if any, shall borne by Parent. 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) In furtherance Notwithstanding anything in the Agreement to the contrary, it is expressly understood and not in limitation agreed that none of Parent, Merger Sub nor any of their respective Affiliates, including Guarantor, shall be under any obligation to do any of the undertakings pursuant following: (A) sell or otherwise dispose of, or hold separate or agree to this Section 6.9sell or otherwise dispose of, each specific assets or categories of assets or areas of business of the Company or any Company Subsidiary or any other assets or areas of business that are (1) currently owned by Parent, Merger Sub or any of their respective Affiliates, including Guarantor, or (2) presently or hereafter sought to be acquired by Parent, Merger Sub or any of their respective Affiliates, including Guarantor; (B) terminate any existing relationships and contractual rights and obligations; (C) amend or terminate such existing licenses or other Intellectual Property agreements or enter into such new licenses or other Intellectual Property agreements (or enter into agreements with the relevant Governmental Entity giving effect thereto); (D) take any actions or make any behavioral commitments, whether or not they limit or modify Parent’s, Merger Sub’s, their respective Affiliates’ (including Guarantor’s), or the Company’s or any Company Subsidiary’s assets or ability to conduct the business of one or more of its or their operations, divisions, businesses, or product lines or with any of its or their customers, including, after the Closing, the business of the Company and the Company Subsidiaries; (E) enter into agreements, including with the relevant Governmental Entity, giving effect to the foregoing clauses (A) through (D); or (F) litigate or contest any action, lawsuit or other legal, regulatory or other Proceeding or any decree, judgment, injunction or other order, whether temporary, preliminary or permanent.
(c) Each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any)agrees that, and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from 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 material delay in obtaining, or the filing 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 material 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 materially prevent or materially delay the Merger or the Offer.
(d) Without limiting the generality of anything contained in this Section 6.4, each party hereto shall (i) give the other parties hereto 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, the Offer or any of the other transactions contemplated by this Agreement, (ii) keep the other parties hereto notified as to the status of any such request, inquiry, investigation, action or other Proceeding, (iii) promptly notify the other parties hereto 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 hereto 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 (excluding notification and report forms and related material required filed under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and ); provided that Parent and their respective counsel shall (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) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems reasonably and in good ▇▇▇▇▇ ▇▇▇▇▇ advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything Such materials and the information contained therein shall be given only to the contrary 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 this Section 6.9advance from the source of the materials (Parent or the Company, materials provided to as the case may be) or its legal counsel. Each party hereto will consult and cooperate with the other party or its counsel parties hereto with respect to and provide any necessary information and assistance as the other parties hereto may be redacted reasonably request with respect to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b)all notices, but subject to the proviso to this sentence, Parent shall takesubmissions, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted filings made by such party with any Governmental Authority Entity or any other Person so as to enable 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 hereto to consummate review and discuss in advance and consider in good faith the Transactions as promptly as practicableviews of the other parties hereto in connection with any filing, and analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in any event prior to connection with the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwiseMerger, the sale, divestiture, license Offer or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or any of the assets, properties or businesses to be acquired other transactions contemplated by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall provided, however, the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long final determination as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent appropriate course of action shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of made by Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court except as may be prohibited by any Governmental Authority Entity or by any applicable Law, in connection with any such request, inquiry, investigation, action or other person under Antitrust Laws Proceeding other than the matters contemplated by Section 6.11, in order connection with or related to avoid entry ofthe Merger, the Offer or the other transactions contemplated hereby, each party hereto will consult with the other parties hereto in advance and give the other parties hereto 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 vacated access to and be consulted in connection with any document, opinion or terminatedproposal made or submitted to any Governmental Entity in connection with such request, any Order (whether temporaryinquiry, preliminary investigation, action or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination Proceeding. Each of the waiting period under Company and Parent shall approve the HSR Actcontent of any presentations, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order white papers or other Order that would prevent or materially delay the consummation written materials to be submitted to any Governmental Entity in advance of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this Agreementany such submission.
Appears in 1 contract
Sources: Merger Agreement (PHX Minerals Inc.)
Efforts. (a) Subject to the terms and conditions of this Agreement, including Section 4.04(c), each of Parent, Seller and the proviso Company and Purchaser and its affiliates shall use its reasonable best efforts to cause the first sentence Closing to occur, including using its reasonable best efforts to obtain all material consents, Permits, authorizations and approvals of, and to make all necessary filings, notifications or registrations with, all Governmental Entities which are necessary for the consummation of Section 6.9(d)the transactions contemplated by this Agreement. None of Parent, Seller, the Company and Parent Purchaser shall, and none shall (and shall cause permit any of their respective Subsidiaries affiliates to) each use their reasonable best efforts to take, take any actions that would, or cause that could reasonably be expected to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing all things necessary, proper or advisable under Applicable Law to (i) obtain all necessary actions, waivers, registrations, permits, authorizations, orders, consents and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periods, and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the Transactions as promptly as practicable and result in any event prior to of the Outside Date and (ii) deliver required notices or conditions set forth in Article V not being satisfied, including affecting any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Dateacquisitions.
(b) In furtherance Each of Parent, Seller and not in limitation of the undertakings pursuant to this Section 6.9, each of Parent and the Company Purchaser shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (practicable, but in no event later than ten (10) Business Days from five business days following the date execution and delivery of this Agreement for Agreement, file or cause to be filed with the filing United States Federal Trade Commission (the "FTC") and the United States Department of Justice (the "DOJ") the notification and report forms form required for the transactions contemplated hereby and related material any supplemental information requested in connection therewith pursuant to the HSR Act. Any such notification and report form and supplemental information shall be in substantial compliance with the requirements of the HSR Act. Each of Parent, Seller and Purchaser shall furnish to the other such necessary information in its possession and reasonable assistance as the other may request in connection with its preparation of any filing or submission that is necessary under the HSR Act. Parent, Seller and Purchaser shall keep each other appraised of the status of any communications with, and any inquiries or requests for additional information from, the FTC and the DOJ and shall comply promptly with any such inquiry or request and shall promptly provide any supplemental information requested in connection with the filings made hereunder pursuant to the HSR Act. Each party shall promptly substantially comply with any request for any additional information or materials. Each party shall use its best efforts to obtain any clearance required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by Act for the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions transactions contemplated by this Agreement. Parent, Seller and Purchaser shall also cooperate to make any required filings outside the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (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) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) United States as promptly as practicable furnish each other with copies after the execution and delivery of all correspondencethis Agreement but in no event later than 15 days after the Closing. For purposes of this Section 4.04, filings the "efforts" of Purchaser shall include promptly (i) opposing any motion or action for a temporary, preliminary or permanent injunction against the Acquisition and written communications between them (ii) if Purchaser loses such motion or their Subsidiaries action for a preliminary or Affiliatespermanent injunction, on entering into a consent decree containing Purchaser's agreement to hold separate and divest the one hand, products and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with assets of the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver its subsidiaries or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party Purchaser and its respective Subsidiariesaffiliates, as the case may be, as required by the FTC, the DOJ or any other Governmental Entity.
(c) Purchaser acknowledges that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding certain consents and waivers with respect to the Transactionstransactions contemplated by this Agreement may be required from parties to the Contracts listed on the Schedules hereto and that such consents and waivers have not been obtained. Purchaser agrees that Parent, Seller and their respective affiliates shall not have any liability whatsoever to Purchaser arising out of or relating 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. Purchaser further agrees that no representation, warranty or covenant of Parent, Seller or the Company or its subsidiaries contained herein shall be breached or deemed breached, and no condition shall be deemed not satisfied, as a result of (i) the failure to obtain any such consent or waiver, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) any lawsuit, action, pro ceeding or investigation commenced or threatened by or on behalf of any person arising out of or relating to the failure to obtain all other authorizationsany such consent or any such termination. Prior to the Closing, consentsParent, Orders Seller and approvals of Governmental Authorities necessary for the consummation Company shall, and shall cause the subsidiaries of the Transactions Company to, cooperate with Purchaser, upon the request of Purchaser, in accordance any reasonable manner in connection with Purchaser obtaining any such consents and waivers; PROVIDED, HOWEVER, that such cooperation shall not include any requirement of Purchaser, Parent, Seller or any of their respective affiliates (including the terms Company and conditions the subsidiaries of this Agreementthe Company) to expend money, commence, defend or participate in any litigation or offer or grant any accommodation (financial or otherwise) to any third party.
Appears in 1 contract
Efforts. (a) Subject to From and after the terms date hereof, Purchaser and conditions of this Agreement, including the proviso to the first sentence of Section 6.9(d), the Company and Parent Seller shall (and shall cause their respective Subsidiaries Affiliate to) each use their reasonable best efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing all things necessary, proper or advisable under Applicable any applicable Law to consummate and make effective in the most expeditious manner possible the Transaction and the other transactions contemplated by this Agreement, including (i) obtain the preparation and filing of all necessary actionsforms, waiversregistrations and notices required to be filed to consummate the Transaction and the other transactions contemplated by this Agreement as soon as practicable, registrations, permits, authorizations, orders, consents (ii) the execution and approvals from Governmental Authorities, the expiry or early termination delivery of any applicable waiting periodsadditional instruments necessary to consummate the Transaction and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement, and make all necessary registrations (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Transaction and filings (including filings with Governmental Authoritiesthe other transactions contemplated by this Agreement. Without limiting the foregoing, if any) but subject to Section 5.1(c), Purchaser and Seller shall take all steps as may be actions reasonably necessary to obtain an approval (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 waiver frommade by Purchaser, Seller, the other Seller Entities or the Purchased Entities in connection with the Transaction or the other transactions contemplated by this Agreement. Additionally, subject to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver required notices or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date.
(b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.95.1(c), each of Parent Purchaser and the Company Seller shall use their respective reasonable best efforts to fulfill all conditions precedent to this Agreement (iincluding those set forth in Section 7.1) prepare and file shall not take any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any), and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from action after the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (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) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent impair or materially delay the consummation obtaining of, or result in not obtaining, any Regulatory Approval necessary to be obtained prior to the Closing. To the extent that transfers of any Permits are required as a result of the Transactions, execution of this Agreement or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with Transaction or the terms and conditions of 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 Each of the terms Company, Parent and conditions of this Agreement, including the proviso to the first sentence of Section 6.9(d), the Company and Parent Merger Sub shall (and shall cause their use its respective Subsidiaries to) each use their reasonable best efforts to (i) take, or cause to be taken, all actions appropriate action and to do, or cause to be done, and to assist and cooperate with the other parties in doing doing, all things necessary, proper or advisable under Applicable applicable Law or otherwise to consummate and make effective the Merger, the Offer and the other transactions contemplated by this Agreement as promptly as practicable; (iii) take all such actions (if any) as may be required 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) (I) obtain as promptly as practicable (A) from any Governmental Entity any and all necessary actionsconsents, notices, licenses, permits, waivers, registrations, permitsapprovals, authorizations, orders, consents registrations, rulings and approvals from Governmental Authoritiesclearances required to be obtained by Parent, Merger Sub or the expiry or early termination of any applicable waiting periods, and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary to obtain an approval or waiver fromCompany, or any of their respective Subsidiaries, to avoid an action or proceeding by, any Governmental Authorities, in order to consummate effect the Transactions Closing as promptly as practicable practicable, and in any event prior to the Outside Date and (ii) deliver required notices or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event not later than three Business Days prior to the Outside Date, and to avoid any action or proceeding by any Governmental Entity or any other Person, in connection with the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, including the Merger and the Offer, and (B) from any Third Party any and all consents, notices, licenses, permits, waivers, approvals, authorizations and registrations that are required to be obtained or made by Parent, Merger Sub or the Company, or any of their respective Subsidiaries, in connection with the transactions contemplated by this Agreement, and in the case of this clause (B), such consents and notices set forth in Annex C and such other consents and notices 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; and (II) prepare and file as promptly as practicable all documentation to effect all necessary applications, notices, petitions, filings, ruling requests, and other documents necessary to obtain the consents, approvals and other deliverables set forth in clauses (A) and (B) above, and take all reasonable steps as may be necessary to obtain all such consents, approvals and other deliverables; (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; and (vii) 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, provided that all filing fees related to the filings by the Parties under any Competition Laws shall borne by Parent. 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. Each Party shall file no later than 20 Business Days after the date of this Agreement the notification and report forms required under the HSR Act, unless the Parties mutually agree in writing that a filing is not necessary.
(b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.9, each Each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any)agrees that, and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from 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 filing of failure to obtain, any regulatory approvals required in connection with the notification transactions contemplated hereby (including the Merger and report forms and related material required under the HSR ActOffer), or (ii) provide take or cause 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 provided as promptly as expected to result in any delay in obtaining, or which would reasonably practicable be expected to result in the failure to obtain, any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination approvals of any applicable waiting period Governmental Entity required in connection with the transactions contemplated hereby (including the Merger and the Offer), or other approval of consummation of which would otherwise reasonably be expected to prevent or delay the Transactions by Merger or the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside DateOffer.
(c) Subject to Applicable LawWithout limiting the generality of anything contained in this Section 6.4, the Company and Parent and their respective counsel each party hereto shall (i) cooperate in all respects with each give the other in connection with parties prompt notice of the making or commencement of any filing request, inquiry, investigation, action or submission with a Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiry Proceeding by or before a any Governmental Authority relating Entity with respect to the TransactionsMerger, including the Offer or any proceeding initiated of the other transactions contemplated by a private personthis Agreement, (ii) have keep the right to review in advance, and other parties notified as to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions and status of any material communication received such request, inquiry, investigation, action or given in connection with any proceeding by a private Person, in each case regarding any of the Transactionsother Proceeding, (iii) as promptly as practicable, inform each notify the other parties of any material oral or written communication (to or from any Governmental Entity regarding the Merger, the Offer or any of the other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority transactions contemplated by this Agreement and (iv) as promptly as practicable furnish each provide to the other with parties copies of all correspondence, filings and any written communications between them received or their Subsidiaries provided by such party, or Affiliatesany of its Subsidiaries, on the one hand, and from or to any Governmental Authority or its respective staff, on the other hand, Entity with respect to the Transactions. Notwithstanding Merger, the foregoing, Offer or any other transactions contemplated by this Agreement; provided that Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems reasonably and in good ▇▇▇▇▇ ▇▇▇▇▇ advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 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 and consider in good faith the views of the other parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with the Merger, the Offer or any of 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. Each of the Company and Parent shall approve the content of any presentations, white papers or other written materials to be submitted to any Governmental Entity in advance of any such submission.
(d) Notwithstanding anything to the contrary in this Agreement, none of the Company, Parent or Merger Sub or any of their respective Subsidiaries shall be required to, and each of them may not and may not permit any of their respective Subsidiaries to, without the prior written consent of the other Party, 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 regarding (i) the sale, divestiture, transfer, license or other disposition of any assets or businesses of the Parties or any of their respective affiliates or Subsidiaries (or interests held by the Parties or any of their affiliates or Subsidiaries); (ii) conduct, ownership and operational limitations on, including actions and agreements that would limit the freedom of action with respect to, or the ability to own or operate, any assets or businesses of the Parties or any of their respective affiliates or Subsidiaries (or interests held by the Parties or any of their affiliates or Subsidiaries); (iii) the creation, termination, modification, transfer or other action with respect to any relationships, agreements and contractual rights and obligations of the Parties or any of their Subsidiaries; or (iv) any other action that limits or affects the Parties’ or their affiliates’ or Subsidiaries’ freedom of action. For the avoidance of doubt, notwithstanding anything in this Section 6.9, materials provided 6.4 to the other party contrary, nothing in this Section 6.4 shall require any Party or its counsel may be redacted any of their respective Subsidiaries to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent their respective assets, businesses or any Affiliate of Subsidiaries that is not conditioned upon the Merger. Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than Merger Sub, and the Company shall comply promptly with any request for additional information and its Subsidiaries), including proposing, negotiating, committing to and effecting, documentary material issued by consent decree, hold separate orders, the United States Federal Trade Commission or otherwise, the sale, divestiture, license or other disposition, Antitrust Division of the assets, properties or businesses United States Department of Parent or any Affiliate of Parent Justice relating to the transactions contemplated by the Transaction Documents (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanentso-called “Second Request”) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Trecora Resources)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, including each of the proviso parties to the first sentence of Section 6.9(d), the Company and Parent this Agreement shall (and shall cause each of their respective Subsidiaries Affiliates to) each use their its reasonable best efforts to taketake promptly, or cause to be taken, all actions actions, and to dodo promptly, or cause to be done, and to assist and cooperate with the other parties in doing doing, all things necessary, proper or advisable under Applicable Law applicable Laws to consummate and make effective the Mergers and the other transactions contemplated by this Agreement, including (i) obtain the obtaining of all necessary actionsactions or nonactions, waivers, registrationsconsents, permitsclearances, authorizationsapprovals, orders, consents and approvals from Governmental Authorities, the expiry expirations or early termination terminations of any applicable waiting periods, including the Specified Approvals and make the Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Authorities, if any) and take the taking of all steps as may be reasonably necessary to obtain an approval approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and Entity; (ii) deliver required notices or any necessary additional instruments to, and obtain required the obtaining of all consents, approvals or waivers or from third parties required to be obtained in connection with the Mergers, including the obtaining by the Company of all necessary consents of the lenders party to the Credit Agreement to the consummation of the Mergers and the other transactions contemplated by this Agreement; and (iii) the execution and delivery of any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and transactions contemplated by this Agreement; provided, however, that in no event shall Parent, Company, or any event of their respective Subsidiaries be required to pay prior to the Outside DateEffective 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 (with the exception of any filing fee, or similar, payable to any Governmental Entities with respect to the Specified Approvals or Parent Approvals).
(b) In furtherance Subject to the terms and not in limitation of conditions herein provided and without limiting the undertakings pursuant to this Section 6.9foregoing, each of Parent the parties shall (and the Company shall cause their Affiliates to) (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any)promptly, and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from after the date of this Agreement for the filing of the hereof, file any and all required notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided and file as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC other required filings and/or notifications under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if anyor Foreign Investment Laws listed in Section 4.3(b) of the Company Disclosure Letter and (iiiSection 5.3(b) as promptly as practicableof the Parent Disclosure Letter, take such actions as are necessary or advisable with respect to obtain prompt the Mergers and the other transactions contemplated by this Agreement, and use their reasonable best efforts to cause the expiration or termination of any applicable waiting period periods under the HSR Act or any other approval of consummation of the Transactions by the DOJ Antitrust Law or FTC or other applicable Governmental Authorities, including Foreign Investment Laws; (ii) use their reasonable best efforts to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (i) cooperate in all respects with each other in connection with (x) determining whether any filing filings are required to be made with, or submission with a 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 Authority Entities in connection with the Transactions execution and in connection with any investigation or other inquiry by or before a Governmental Authority relating to delivery of this Agreement and the Transactions, including any proceeding initiated by a private person, (ii) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any consummation of the Transactionstransactions contemplated by this Agreement and (y) 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, inform each other of practicable any material communication (additional information or documents that may be requested pursuant to any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority Law; and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or use their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ best efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, 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 by this Agreement. 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 Antitrust Law or Foreign Investment Law, without the prior written consent of the other party.
(c) If any objections are asserted with respect to the transactions contemplated hereby under any Antitrust Law or Foreign Investment Law or if any Action is instituted by any Governmental Entity or any private party challenging any of the transactions contemplated hereby as violative of any Antitrust Law or Foreign Investment Law, each of Parent and Company shall (and shall cause each of their Affiliates to) (i) oppose or defend against any action to prevent or enjoin consummation of this Agreement (and the transactions contemplated herein), and/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), including by defending any Action brought by any Governmental Entity in order to avoid entry of, or to have vacated, overturned or terminated, including by appeal up to a final non-appealable order if necessary, in order to resolve any such objections or challenge as such Governmental Entity or private party may have to such transactions under such Antitrust Law or Foreign Investment Law so as to permit consummation of the transactions contemplated by this Agreement.
(d) Without limiting the foregoing, ▇▇▇▇▇▇ agrees to (and shall cause its Affiliates to) use its reasonable best efforts, and agrees to take (and shall cause its Affiliates to take), any and all steps necessary actions to avoid or eliminate and, if necessary, eliminate, each and every impediment under any Antitrust Law Laws or Foreign Investment Laws that may be asserted by any Governmental Authority or any other Person person, so as to enable the parties hereto Closing to consummate occur no later than the Transactions as promptly as practicable, and in any event prior to the Outside End Date, including but not limited to proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, : (i) the sale, divestituredivestiture or disposition of, license any assets, products, businesses or interests of the parties (or their respective Affiliates); (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, products, businesses or interests; (iii) any modification or waiver of the terms and conditions of this Agreement; or (iv) take any other disposition action that limits the freedom of such action with respect to, or the ability to retain, any assets, products, businesses or interests of Parent or any of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable Affiliates in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, of any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority Action (whether temporary, preliminary or any other Person under Antitrust Laws permanent), or that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding Mergers and the foregoing provisions of this Section 6.9(d) or any other provision of transactions contemplated by this Agreement; provided, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shallhowever, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere that nothing in this Agreement shall require Parent or Parent’s Subsidiaries to propose, execute, carry out, or agree or submit to any action or remedy that individually or in the aggregate would reasonably be expected to have a material adverse effect on the business, operations, financial condition or results of operations of (x) Parent and Parent’s Subsidiaries (taken as a whole prior to the contrary, Parent shall not be required to take Closing) or (nor shall the Company or any Company Subsidiaries be permitted to takey) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiariesthe Company’s Subsidiaries (taken as a whole), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Without limiting the foregoing, Parent nor Merger Sub and Company shall not, and shall cause their Affiliates not to, directly or indirectly (nor whether by merger, consolidation or otherwise), acquire, purchase, lease or license (or agree to acquire, purchase, lease or license) any business, corporation, partnership, association or other Subsidiary of Parent) shall enter into any agreementbusiness organization or division or part thereof, transaction or any agreement securities or collection of assets, or take or cause to effect take any transaction (including any merger or acquisition) that action, if doing so would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain impose any material delay in the timely expiration or termination of the waiting period under the HSR Actobtaining of, or increase the authorizationsrisk of not obtaining, consents, Orders approvals, authorizations or waivers of Governmental Entities necessary, proper or advisable to consummate the transactions contemplated by this Agreement and approvals required under any other applicable Antitrust Law, applicable to secure the Transactions, Specified Approvals or Parent Approvals; (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or transactions contemplated by this Agreement; (iii) obtain all other authorizations, consents, Orders and approvals materially increase the risk of any Governmental Authorities necessary for Entities entering a judgment prohibiting the consummation of the Transactions in accordance with transactions contemplated by this Agreement; (iv) materially increase the terms and conditions risk of not being able to remove any such judgment on appeal or otherwise; or (v) otherwise materially impair or delay the ability of any Parent Party to perform its material obligations under this Agreement.
(f) The parties shall (and shall cause their Affiliates 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 6.10; and, subject to applicable legal limitations and the instructions of any Governmental Entity, Company, on the one hand, and Parent, on the other hand, shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement, including promptly furnishing the other with copies (or, in the case of oral communications, summaries) of notices or other material communications received by Company or Parent, as the case may be, or any of their respective Subsidiaries or Affiliates, from any third party and/or any Governmental Entity with respect to such transactions. Subject to applicable Law relating to the exchange of information, Company, on the one hand, and 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 substantive 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; 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. Each of the parties agrees not to (and to cause each of their Affiliates not to) participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the transactions contemplated by this Agreement unless it consults with the other 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 party’s outside counsel the opportunity to attend and participate.
Appears in 1 contract
Sources: Merger Agreement (Dril-Quip Inc)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, including each of the proviso to the first sentence of Section 6.9(d)parties hereto shall, and the Company and Parent shall (and shall cause their respective each of its Subsidiaries to) each , use their all reasonable best efforts to taketake promptly, or cause to be taken, all actions actions, and to dodo promptly, or cause to be done, and to assist and cooperate with the other parties in doing doing, all things necessary, proper or advisable under Applicable Law applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement, including (i) obtain the obtaining of all necessary actionsactions or nonactions, waivers, registrationsconsents, permitsclearances, authorizationsapprovals, orders, consents and approvals from Governmental Authorities, the expiry expirations or early termination terminations of any applicable waiting periods, including the Specified Approvals and make the Parent Approvals, from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Authorities, if any) and take the taking of all steps as may be reasonably necessary to obtain an approval approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental AuthoritiesEntity, in order (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 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 as promptly as practicable and transactions contemplated by this Agreement; provided, however, that in no event shall the Company or any event of its Subsidiaries be required to pay prior to the Outside Date 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 (other than de minimis amounts or if Parent and (ii) deliver required notices Merger Sub have provided adequate assurance of repayment). Neither party shall take any action that is intended or any necessary additional instruments would reasonably be expected to, and obtain required consentsindividually or in the aggregate, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and result in any event prior of the conditions to the Outside DateMerger set forth in Article VI not being satisfied or the satisfaction of those conditions being materially delayed.
(b) In furtherance Subject to the terms and not in limitation of conditions herein provided and without limiting the undertakings pursuant to this Section 6.9foregoing, each of Parent and the Company and Parent shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any)promptly, and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten fifteen (1015) Business Days from days after the date of this Agreement for the filing of the notification hereof, file any and report forms all required Notification and related material required Report Forms under the HSR Act), (ii) provide or cause Act with respect to be provided the Merger and the other transactions contemplated by this Agreement and thereafter make any other required submission under the HSR Act as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable and use reasonable best efforts to obtain prompt cause the expiration or termination of any applicable waiting period or other approval of consummation of periods under the Transactions by the DOJ or FTC or other applicable Governmental AuthoritiesHSR Act, including (ii) use reasonable best efforts to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (i) cooperate in all respects with each other in connection with (x) determining whether any filing filings are required to be made with, or submission with a consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or Governmental Authority Entities in connection with the Transactions execution and in connection with any investigation delivery of this Agreement and the consummation of, the Merger and the transactions contemplated hereby and (y) timely making all such filings and timely seeking all such consents, permits, authorizations or other inquiry by or before a Governmental Authority relating to the Transactions, including any proceeding initiated by a private person, (ii) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactionsapprovals, (iii) supply to any Governmental Entity as promptly as practicablepracticable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, 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 Merger and the other transactions contemplated hereby, including taking all such further action as may be necessary 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 all steps necessary the other transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person Entity with respect to the Merger so as to enable the parties hereto Closing to consummate the Transactions occur as promptly soon as practicable, reasonably possible (and in any event prior to no later than the Outside End Date), including including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, order or otherwise, the sale, divestiture, license divestiture or other disposition of such any material assets or businesses of Parent or its Subsidiaries or controlled affiliates or of 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 Parent or its Subsidiaries’ (including the Surviving Corporation’s) or controlled affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries (including the Surviving Corporation’s) businesses, product lines or assets, properties or businesses or of the assets, properties or businesses to in each case as may be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable required in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order order in any Proceeding by a Governmental Authority suit or any other Person under Antitrust Laws that proceeding which would otherwise have the effect of preventing or the Closing, materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither 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 Entity to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Company or any of its affiliates, unless such requirement, condition, understanding, agreement or order is binding on the Company only in the event that the Closing occurs.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, the Company and Parent shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated hereby, including to the extent permitted by Law promptly furnishing the other with copies of notices or other communications sent or received by the Company or Parent, 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. The Company and Parent shall permit the other party to review in advance any proposed communication to any supervisory or Governmental Entity. Each of the Company and 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, each of the Company and 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 Transactions; provided that, notwithstanding Merger and the other transactions contemplated by this Agreement. Notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, nothing in no event this Section 5.6 shall Parent limit a party’s right to terminate this Agreement pursuant to Section 7.1(b) or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, 7.1(c) so long as such agreements are conditioned upon the Closing)) any actionparty has, concession or undertakingprior to such termination, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in complied with its obligations under this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date5.6.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) It is agreed that this Section 5.6 shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain not govern the timely expiration or termination obligations of the waiting period under parties with respect to obtaining the HSR ActFinancing, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions which obligations are set forth in accordance with the terms and conditions of this AgreementSection 5.11.
Appears in 1 contract
Sources: Merger Agreement (Elkcorp)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, including each of the proviso to the first sentence of Section 6.9(d), the Company and Parent Parties hereto shall (and shall cause their respective Subsidiaries to) each use their commercially reasonable best efforts to taketake promptly, or cause to be taken, all actions actions, and to dodo promptly, or cause to be done, and to assist and cooperate with the other parties Parties in doing doing, all things necessary, proper or advisable under Applicable Law applicable Laws and otherwise to complete and make effective the Merger and the other transactions contemplated by this Agreement, including: (i) obtain obtaining all necessary actionsactions or nonactions, waivers, registrationsconsents, permitsclearances, authorizationsapprovals, orders, consents and approvals from Governmental Authorities, the expiry expirations or early termination terminations of any applicable waiting periods, including the Specified Approvals and make the Purchaser Approvals, from Governmental Entities and the making of all necessary registrations and filings (including filings with Governmental Authorities, if any) and take the taking of all steps as may be reasonably necessary to obtain an approval approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental AuthoritiesEntity, in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver required notices obtaining all necessary consents, approvals or waivers from third parties, (iii) defending any necessary additional instruments tolawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the completion of the Merger and the other transactions contemplated by this Agreement, and obtain required consents, waivers or (iv) executing and delivering any additional instruments necessary from, Third Parties in order to consummate complete the Transactions as promptly as practicable and in any event prior to the Outside Datetransactions contemplated by this Agreement.
(b) In furtherance Subject to the terms and not in limitation of conditions herein provided and without limiting the undertakings pursuant to this Section 6.9foregoing, each of Parent the Company, Purchaser and the Company shall Merger Sub shall: (i) prepare and promptly file any notification and report forms all required Notification and related material required Report Forms under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions Merger and the other transactions contemplated by this Agreement (or, if anysuch Party has an “ultimate parent entity”, then such Party shall cause that entity to make that filing), and any additional filings or notifications and related material that are necessary, proper or advisable use all reasonable efforts to permit consummation of cause the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period periods under the HSR Act, (ii) use (and cause each of its Affiliates to use) commercially reasonable efforts to cooperate in (A) 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 approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (i) cooperate in all respects with each other in connection with any filing or submission with a Governmental Authority Entities in connection with the Transactions execution and in connection with any investigation or other inquiry by or before a Governmental Authority relating to delivery of this Agreement and the Transactions, including any proceeding initiated by a private person, (ii) have completion of the right to review in advancetransactions contemplated hereby, and to the extent practicable each shall consult the other on(B) timely making all such filings and timely obtaining all such consents, any material filing made withpermits, or written materials to be submitted to, any Governmental Authority in connection with the Transactions authorizations and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any of the Transactionsapprovals, (iii) supply to any Governmental Entity as promptly as practicablepracticable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting use commercially reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any all other actions and do, or cause to be done, all steps other things reasonably necessary, proper or advisable to complete and make effective the transactions contemplated hereby, including taking (and causing each of its Affiliates to take) all such further actions as may be reasonably necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority Entity or any other Person with respect to the Merger so as to enable the parties hereto Merger to consummate occur as soon as reasonably possible (and in any event, no later than the Transactions End Date).
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, the Company and Purchaser shall keep each other apprised of the status of matters relating to the completion of the Merger, including promptly delivering the other with copies of notices or other communications received by the Company or Purchaser, as the case may be, or any of their respective Subsidiaries or other Affiliates, from any Governmental Entity or other Person with respect to such transactions. The Company and Purchaser shall AGREEMENT AND PLAN OF MERGER 44 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 the Company and Purchaser agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the Merger 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) Purchaser agrees to, and will cause its Affiliates to, use commercially reasonable efforts to take any and all actions reasonably necessary to avoid, eliminate and resolve any and all impediments under the HSR Act or any other Law that may be asserted by any Governmental Entity or any other Person with respect to the Merger and to obtain all consents, approvals and waivers under the HSR Act or any other Law that may be required by any Governmental Entity to enable the Parties to close the Merger as promptly as practicable, .
(e) In furtherance and not in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or limitation of the assetscovenants of the Parties contained in this Section 7.6, properties if any action or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, proceeding is instituted (or threatened) challenging the Merger as are necessary or advisable in order to avoid violating the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority HSR Act or any other Person under Antitrust Laws Law or if any decree, order, judgment or injunction (whether temporary, preliminary or permanent) is entered, enforced or attempted to be entered or enforced by any Governmental Entity that would make the Merger illegal or otherwise have the effect of preventing delay or materially delaying prohibit the consummation of the Transactions; provided thatMerger, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries)Purchaser and their respective Affiliates shall take any and all commercially reasonable actions to contest and defend any such Claim, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated vacated, lifted, reversed, repealed, rescinded or terminated, any Order decree, order, judgment or injunction (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreementprohibits, transaction prevents or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the restricts consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this AgreementMerger.
Appears in 1 contract
Sources: Merger Agreement (Avista Corp)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, including each of the proviso to the first sentence of Section 6.9(d), the Company and Parent parties hereto shall (and shall cause their respective Subsidiaries to) each use their its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be doneto, and to shall assist and cooperate with the other parties in doing all things necessaryparties, proper or advisable under Applicable Law to (i) consummate and make effective the Merger and the other transactions contemplated hereby, (ii) obtain as promptly as practicable all necessary actionsactions or nonactions, waivers, registrationsconsents, permitsclearances, authorizationsapprovals, orders, consents and approvals from Governmental Authorities, the expiry expirations or early termination terminations of any applicable waiting periods, including the Company Approvals and the Parent Approvals, from Governmental Entities and make all necessary such registrations and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary to obtain an approval approval, clearance, or waiver from, or to avoid an action or proceeding by, any Governmental AuthoritiesEntity, in order to consummate the Transactions (iii) obtain as promptly as practicable of all necessary consents, approvals or waivers from third parties, (iv) defend any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger and in any event prior to the Outside Date other transactions contemplated hereby and (iiv) execute and deliver required notices or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments reasonably necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Datetransactions contemplated hereby.
(b) In furtherance Subject to the terms and not in limitation of conditions herein provided and without limiting the undertakings pursuant to this Section 6.9foregoing, each of Parent and the Company and Parent shall (i) prepare and promptly after the date hereof, file any notification and report forms all Notification and related material Report Forms required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any)Merger and the other transactions contemplated hereby, and any additional filings or notifications and related material that are necessary, proper or advisable use reasonable best efforts to permit consummation of cause the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of periods under the Transactions by the DOJ or FTC or other applicable Governmental AuthoritiesHSR Act, including (ii) use reasonable best efforts to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (i) cooperate in all respects with each other in connection with (x) determining whether any filing filings are required to be made with, or submission with a 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 Authority Entities in connection with the Transactions execution and in connection with any investigation or other inquiry by or before a Governmental Authority relating to delivery of this Agreement and the Transactions, including any proceeding initiated by a private person, (ii) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions and of any material communication received or given in connection with any proceeding by a private Person, in each case regarding any consummation of the Transactionstransactions contemplated hereby and (y) as promptly as practicable 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 Regulatory Law or by such Governmental Entity, and (iv) use reasonable best efforts to take as promptly as practicable, inform each or cause to be taken as promptly as practicable, such other actions as may be necessary, proper or advisable to consummate and make effective the Merger and the other transactions contemplated hereby, 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 material communication (other nation or other jurisdiction or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, person may assert under Regulatory Law with respect to the Transactions. Notwithstanding Merger and the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faithother transactions contemplated hereby, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every any impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person Entity with respect to the Merger so as to enable the parties hereto Closing to consummate the Transactions occur as promptly soon as practicable, reasonably possible (and in any event prior no later than the End Date); provided that no party shall become subject to, or consent or agree to any requirement, condition, understanding, agreement or order of a Governmental Entity, unless such requirement, condition, understanding, agreement or order is binding on such party only in the Outside Dateevent that the Closing occurs; and, including proposingprovided, negotiatingfurther, committing that nothing in this Agreement, or any “reasonable best efforts” standard generally, shall be deemed to and effectingrequire Parent to proffer to, by consent decreeor agree to, or to permit the Company to proffer to or agree to, with respect to assets or businesses of Parent, the Company or any of their respective Subsidiaries, sell, divest, lease, license, transfer, dispose of or otherwise encumber or hold separate ordersor agree to sell, divest, lease, license, transfer, dispose of or otherwiseotherwise encumber before or after 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, license lease, license, transfer, disposition or other disposition encumbrance by the Company of such any of its assets, licenses, operations, rights, product lines, businesses or interest therein or to any agreement by the Company to take any of the foregoing actions) or to agree to any changes (including through a licensing arrangement) or restriction on, or other impairment of Parent’s ability to own or operate, any such assets, licenses, 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 Surviving Corporation, if and to the extent that any such conduct, action or agreement would be reasonably likely to result in any adverse term, condition, limitation or effect that would be material (measured on a scale relative to the Company and its Subsidiaries’ assetsSubsidiaries taken as a whole) to Parent, properties the Company or businesses the Surviving Corporation (such adverse term, condition, limitation or effect a “Materially Burdensome Regulatory Condition”).
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, the Company and Parent shall keep each other apprised of the assetsstatus of matters relating to the completion of the Merger and the other transactions contemplated thereby, properties including promptly furnishing the other with copies of notices or businesses other communications received by the Company or Parent, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to be acquired by such transactions. The Company and Parent pursuant heretoshall permit counsel for the other party reasonable opportunity to review in advance, and entering into such consider in good faith the views of the other arrangements, as are necessary or advisable party in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution ofconnection with, any injunction, temporary restraining order or other Order proposed written communication to any Governmental Entity. Each of the Company and Parent agrees not to participate in any Proceeding substantive meeting or discussion, either in person or by a telephone, with any Governmental Authority or any Entity in connection with the proposed transactions unless it consults with the other Person under Antitrust Laws that would otherwise have party in advance and, to the effect of preventing or materially delaying extent not prohibited by such Governmental Entity, gives the consummation of other party the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(dopportunity to attend and participate.
(d) or any other provision 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 no event shall Parent connection with the Merger and the transactions contemplated thereby, 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, control or operation of any of its Subsidiaries be required to agree to (nor shall the Company operations or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate assets of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing those relating to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, money transmitting or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance any Law with the terms and conditions purpose of this Agreementprotecting the national security or the national economy of any nation.
Appears in 1 contract
Sources: Merger Agreement (Fiserv Inc)
Efforts. (a) Subject to Upon the terms and subject to the conditions of set forth in this Agreement, including the proviso each party hereto agrees to the first sentence of Section 6.9(d), the Company and Parent shall (and shall cause their respective Subsidiaries to) each use their commercially reasonable best efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, and to assist and cooperate with the other parties party in doing doing, all things necessary, proper or advisable under Applicable Law to consummate and make effective, as soon as possible following the date hereof, the Merger and the other transactions contemplated by this Agreement, including using commercially reasonable efforts in (ia) obtain causing each of the conditions to the Merger set forth in Article VIII to be satisfied as promptly as practicable after the date of this Agreement, (b) the obtaining of all necessary actions, non-actions, waivers, registrations, permits, authorizations, orders, consents and approvals from Governmental AuthoritiesEntities, including the expiry or early termination of any applicable waiting periodsHSR approval contemplated by Section 7.4 (the “Required Consents”) prior to the Effective Time, and make the making of all necessary registrations and filings (including filings with Governmental Authorities, if any) and take the taking of all steps as may be reasonably necessary to obtain an approval or waiver a Required Consent from, or to avoid an action or proceeding by, any Governmental AuthoritiesEntity, in order to consummate (c) the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver required notices or any necessary additional instruments to, and obtain obtaining of all required consents, approvals or waivers from third parties, (d) the contesting and defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger 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, (e) the execution and delivery of any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable transactions contemplated by, and in any event to fully carry out the purposes of, this Agreement, (f) no later than two (2) Business Days prior to the Outside Date.
(b) In furtherance and not in limitation Closing, providing reasonably detailed documentation calculating Enzon’s Cash on Hand as of the undertakings pursuant to this Section 6.9, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act and any other applicable Antitrust Laws with respect to the Transactions (if any)Closing, and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10g) Business Days refraining from the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (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) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made with, or written materials to be submitted to, any Governmental Authority in connection with the Transactions 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) as promptly as practicable, inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. Notwithstanding the foregoing, Parent shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, and subject to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility for all aspects of the parties’ efforts with respect to the HSR Act and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.9 as “Antitrust Counsel Only Material.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) taking any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Actimpede, or the authorizationsinterfere with, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this AgreementMerger.
Appears in 1 contract
Efforts. Buyer shall use commercially reasonable efforts (awithout the obligation to incur any undue expense) Subject to the terms assume and conditions of this Agreement, including the proviso to the first sentence of Section 6.9(d), the Company and Parent shall (and shall cause their respective Subsidiaries to) each use their reasonable best efforts to take, or cause to be taken, perform all actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing all things necessary, proper or advisable under Applicable Law to (i) obtain all necessary actions, waivers, registrations, permits, authorizations, orders, consents and approvals from Governmental Authorities, the expiry or early termination of any applicable waiting periods, and make all necessary registrations and filings (including filings with Governmental Authorities, if any) and take all steps as may be reasonably necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date and (ii) deliver required notices or any necessary additional instruments to, and obtain required consents, waivers or any additional instruments necessary from, Third Parties in order to consummate the Transactions as promptly as practicable and in any event prior to the Outside Date.
(b) In furtherance and not in limitation of the undertakings pursuant to this Section 6.9, each of Parent and the Company shall (i) prepare and file any notification and report forms and related material required obligations under the HSR Act Transferred Rights, Obligations and any other applicable Antitrust Laws with respect to Agreements. To the Transactions (if any), and any additional filings extent that the assignment or notifications and related material that are necessary, proper or advisable to permit consummation novation of the Transactions, as promptly as reasonably practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of the notification and report forms and related material required under the HSR Act), (ii) provide or cause to be provided as promptly as reasonably practicable any information and documentary material that may be requested by the DOJ or FTC under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (iii) as promptly as practicable, take such actions as are necessary or advisable to obtain prompt expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC or other applicable Governmental Authorities, including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the TransactionsTransferred Rights, so as to enable the parties hereto to consummate the Transactions prior to the Outside Date.
(c) Subject to Applicable Law, the Company Obligations and Parent and their respective counsel shall (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) have the right to review in advance, and to the extent practicable each shall consult the other on, any material filing made withAgreements, or written materials to be submitted tothe assignment under (S)2.1 above, any Governmental Authority in connection with shall require the Transactions and consent of any material communication received other party (or given in connection with any proceeding by a private Person, in each case regarding the event that any of the Transactionssame shall be non-assignable), (iii) as promptly as practicable, inform each other neither the agreements contemplated by this Agreement nor any actions taken hereunder pursuant to the provisions of any material communication such agreements shall constitute an assignment or novation or an agreement to assign or novate if such assignment or novation or attempted assignment or novation would constitute a breach thereof or result in the loss or diminution thereof; provided, however, that in each such case, ▇▇▇▇ and Buyer shall use commercially reasonable efforts (without the obligation to incur any undue expense) to obtain the consent of such other party to an assignment or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iv) as promptly as practicable furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiaries or Affiliates, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect novation to the TransactionsBuyer. Notwithstanding the foregoing, Parent it shall be a condition to closing that any consents required for the assignment of the Transferred Rights, Obligations and Agreements designated by Buyer shall have been obtained on terms and conditions 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 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 account and benefit of Buyer, any and all rights of ▇▇▇▇ against any other person arising out of the breach or cancellation of such Transferred Rights, Obligations and Agreements by such other person or otherwise (any and all of which arrangements shall constitute, as between the parties hereto, a deemed assignment or transfer); provided that, to the 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 subject of a separate agreement that the parties shall, following consultation with the Company and after giving due consideration to the Company’s views and acting reasonable and in good faith, negotiate as promptly as possible and subject which shall be mutually acceptable to Parent’s and Merger Sub’s obligations under this Section 6.9, direct and have principal responsibility the parties. Each party shall be responsible for all aspects of the parties’ efforts with respect to the HSR Act its costs and other applicable Antitrust Laws with respect to the Transactions, and the Company shall cooperate in good faith with Parent and Merger Sub in the parties’ efforts to obtain any clearance, approval, waiver or expiry or early termination of any applicable waiting periods with respect to any Antitrust Laws; provided, that each of the parties shall (i) have the right to review in advance, and to the extent practicable each will consult the other on, all the information relating to the other party and its respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials (including correspondence) submitted to, any Third Party and/or any Governmental Authority in connection with any governmental inquiry, investigation or proceeding with respect to the Transactions, (ii) promptly inform each other of any material communication (or any other material correspondence or memoranda) received from, or given to, the DOJ or the FTC or any other applicable Governmental Authority and (iii) promptly furnish each other with copies of all correspondence, filings and written communications between them or their Subsidiary, on the one hand, and any Governmental Authority or its respective staff, on the other hand, with respect to the Transactions. The parties shall (with respect to any in-person discussion or meeting), and shall to the extent practicable (with respect to any telephonic discussion or meeting), provide the other party and its counsel with advance notice of and the opportunity to participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry expenses incurred by it in connection with the Transactions. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other actions required of it under this Section 6.9 as “Antitrust Counsel Only Material(S)2.15.” Notwithstanding anything to the contrary in this Section 6.9, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Acquired Companies and as necessary to address reasonable attorney-client or other privilege or confidentiality concerns.
(d) In furtherance of the undertakings of Parent pursuant to Section 6.9(a) and Section 6.9(b), but subject to the proviso to this sentence, Parent shall take, or cause to be taken, any and all steps necessary to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority or any other Person so as to enable the parties hereto to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date, including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition of such of its and its Subsidiaries’ assets, properties or businesses or of the assets, properties or businesses to be acquired by Parent pursuant hereto, and entering into such other arrangements, as are necessary or advisable in order to avoid the entry of, and the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Proceeding by a Governmental Authority or any other Person under Antitrust Laws that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions; provided that, notwithstanding the foregoing provisions of this Section 6.9(d) or any other provision of this Agreement, in no event shall Parent or any of its Subsidiaries be required to agree to (nor shall the Company or any Company Subsidiaries be permitted to agree unless Parent so directs them (and they shall, if Parent so directs, agree to, so long as such agreements are conditioned upon the Closing)) any action, concession or undertaking, unless such action, concession or undertaking is conditioned on the Closing. Notwithstanding anything in this Section 6.9 or elsewhere in this Agreement to the contrary, Parent shall not be required to take (nor shall the Company or any Company Subsidiaries be permitted to take) any action with respect to Parent or any Affiliate of Parent, including any affiliated investment funds or any portfolio company (as such term is commonly understood in the private equity industry) of Parent or any of its Affiliates (other than the Company and its Subsidiaries), including proposing, negotiating, committing to and effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, license or other disposition, of the assets, properties or businesses of Parent or any Affiliate of Parent (in each case, other than the Company and its Subsidiaries). In addition, Parent shall defend through litigation on the merits any claim asserted in court by any Governmental Authority or any other person under Antitrust Laws in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing occurring prior to the Outside Date.
(e) Neither Parent nor Merger Sub (nor any other Subsidiary of Parent) shall enter into any agreement, transaction or any agreement to effect any transaction (including any merger or acquisition) that would reasonably be expected to prevent or materially delay Parent’s or Merger Sub’s ability to: (i) obtain the timely expiration or termination of the waiting period under the HSR Act, or the authorizations, consents, Orders and approvals required under any other applicable Antitrust Law, applicable to the Transactions, (ii) avoid the entry of, the commencement of litigation seeking the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order that would prevent or materially delay the consummation of the Transactions, or (iii) obtain all other authorizations, consents, Orders and approvals of Governmental Authorities necessary for the consummation of the Transactions in accordance with the terms and conditions of this Agreement.
Appears in 1 contract