Efforts. (a) Subject to the terms and conditions of this Agreement, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate the Transactions, including the Merger, as soon as practicable after the date hereof (and in any event by the Outside Date), including (i) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably 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 reasonably practicable (and in any event by the Outside Date) 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 Transactions, including the Merger, and (ii) taking all steps as may be necessary, subject to the limitations in this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation of the foregoing, each Party, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger. (b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company. (c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing).
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (Tapestry, Inc.), Agreement and Plan of Merger (Capri Holdings LTD)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, Parent (and including Section 6.10(b) hereof, each of the Parent Subsidiaries) and the Company (and the Company Subsidiaries) parties to this Agreement shall use 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 Laws to consummate and make effective the Mergers and the other transactions contemplated by this Agreement, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the 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 Mergers, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary to consummate the Transactionstransactions contemplated by this Agreement; provided, however, that in no event shall Parent, the Company, 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 or approval required for the consummation of the transactions contemplated by this Agreement under any Contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties shall (i) make appropriate filings under the HSR Act within 10 Business Days of the date hereof and file within 20 Business Days of the date hereof any other required filings and/or notifications under other applicable Antitrust Laws identified in Section 4.3(b) of the Company Disclosure Letter and Section 5.3(b) of the Parent Disclosure Letter, with respect to 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 periods under any Antitrust Law, (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) make an appropriate response as promptly as practicable to any request for additional information or documents by a Governmental Entity pursuant to any Antitrust Law and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated by this Agreement, including taking all such further action as may be necessary to resolve such objections, if any, as any Antitrust Authority may assert under any Antitrust Law (other than with respect to any Action by any stockholder related to this Agreement, the MergerMergers or the other transactions contemplated by this Agreement) with respect to the transactions contemplated by this Agreement, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as practicable after the date hereof reasonably possible (and in any event by no later than the Outside End Date), including (i) preparing taking all such further action as may be reasonably necessary to resolve such objections, if any, as any Antitrust Authority may assert under any Antitrust Law with respect to the transactions contemplated by this Agreement, and filing to avoid or otherwise providing, in consultation eliminate any impediment under any Law that may be asserted by any Governmental Entity with respect to the other Party and Mergers so as promptly to enable the Closing to occur as soon as reasonably 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 reasonably practicable possible (and in any event no later than the End Date). In furtherance of the foregoing, Parent shall take any and all actions necessary, including but not limited to (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 or transferring any 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 accepting any restriction on Parent’s freedom of action following the Closing; or (v) effectuating any other change or restructuring of the Company or Parent or their respective Subsidiaries (and, in each case, Parent shall enter into agreements or stipulate to the entry of an order or decree or file appropriate applications with any Governmental Entity in connection with any of the foregoing) (each, a “Remedy Action”); provided that notwithstanding the foregoing, including Section 6.10(a) or anything else to the contrary in this Agreement, (1) Parent shall not be required to take any Remedy Actions (or any other action) that would have or be expected to have, individually or in the aggregate, a material adverse effect on Parent (provided that, for purposes of this clause, Parent shall be deemed a consolidated group of entities of the size and scale of a hypothetical company that is one hundred percent (100%) of the size of the Company and its Subsidiaries, taken as a whole, as of the date of this Agreement), taking into account the terms and net proceeds of any divestiture or other disposition of assets and the effects of any other Remedy Action and provided that the parties hereby acknowledge and agree that any Remedy Action that would, or would reasonably be expected to, result in the sale, disposition or other disposing of any drillship shall be deemed for these purposes to have a material adverse effect on Parent and (2) neither the Company nor any of its Subsidiaries shall take or agree to take, or propose to take or agree to take, any Remedy Action without the prior written consent of Parent; provided, further, that the Company and its Subsidiaries shall agree to take any such Remedy Action if directed to do so by Parent, so long as the effectiveness of such Remedy Action is conditioned upon the consummation of the Merger. Parent shall be responsible for all filing fees under any Antitrust Laws and/or any such other laws or regulations applicable to any of the Parent or its Affiliates. Each party shall not (and shall cause its 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 any Antitrust Law, without the prior written consent of the other party (which consent shall not be unreasonably withheld, delayed or conditioned); provided that, notwithstanding the foregoing, Parent may, after consulting in good faith with the Company, withdraw and refile its HSR Act notification (i.e., “pull and refile”) one time in the manner described in 16 CFR § 803.12(c).
(c) If any objections are asserted with respect to the transactions contemplated hereby under any Antitrust 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, each of Parent and the Company shall use their respective reasonable best efforts 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 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 so as to permit consummation of the transactions contemplated by this Agreement, including by taking a Remedy Action, subject, in each case, to clauses (1) and (2) of Section 6.10(b).
(d) The parties shall cooperate and consult with each other in connection with the making of all registrations, filings, notifications, communications, submissions and any other material actions pursuant to this Section 6.10, and, subject to applicable legal limitations and the instructions of any Governmental Entity, the 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 of notices or other material communications received by the Outside Date) all waiting period expirations Company or terminationsParent, consentsas the case may be, clearancesor any of their respective Subsidiaries or Affiliates, 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 with respect to consummate the Transactionssuch transactions; provided, including the Merger, and (ii) taking all steps as may be necessary, subject that notwithstanding anything to the limitations contrary contained in this Section 6.2Agreement, if the Company and Parent do not agree on the strategy to obtain all such waiting period expirations or terminations, implement in connection with obtaining the consents, clearances, waiversapprovals and expirations or terminations of waiting periods under applicable Antitrust Laws, licenses, registrations, permits, authorizations, orders then such matters shall be referred to a transaction committee (the “Transaction Committee”) and approvals. In furtherance thereafter the Transaction Committee shall meet and not in limitation of mutually agree on the foregoing, each Party, as applicable, agrees to (x) make, or cause strategy to be made, an appropriate filing of a Notification implemented in connection therewith and Report Form pursuant the Transaction Committee shall exercise final decision making authority over such matters. Subject to applicable Law relating to the HSR Act with respect to the Transactions as promptly as reasonably practicableexchange of information, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, on the Surviving Companyone hand, and Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Companyother hand, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations permit counsel for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a party reasonable opportunity to review in advance advance, and comment on drafts of filings and submissions and reasonably considering consider in good faith comments the views of the other Partyparty in connection with, any proposed notifications, filings, written communications or submissions (iiand with respect to any such notification, filing, written communication or submission, any documents submitted therewith) promptly inform the other Party of to 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”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (Ax) to remove references concerning the valuation of Parent, the businesses of the Company or any of their respective and its Subsidiaries, or proposals from third parties with respect thereto, and (By) as necessary to comply with contractual arrangements and (C) as necessary or appropriate to address reasonable privilege concerns or reasonable confidentiality concerns; providedconcerns relating to proprietary or commercially sensitive information, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material in which case unredacted copies shall be provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such material and the information contained therein shall be given only to the outside antitrust counsel only. Each of the recipient and will parties agrees not be disclosed to participate in any substantive meeting or discussion, either in person or by such outside counsel to employeestelephone, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate in connection with the Transactionstransactions contemplated by this Agreement unless it consults with the other parties in advance and, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date extent not prohibited or required otherwise by such Governmental Entity, gives the other parties the opportunity to attend and (y) in doing so it must act reasonably and must consider in good faith the views of the Companyparticipate.
(ce) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary hereinin this Agreement, each of the parties hereto agrees that, between the date of this Agreement and the earlier of the Effective Time and the Termination Date, it shall not, and shall ensure that none of Parentits Subsidiaries shall, the Company or consummate, enter into any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty)agreement providing for, or amend announce, any Acquisition Opportunity that would reasonably be expected to materially impede, delay or modify any Contract, to obtain such third party consents (except, in prevent the case consummation of the Company, if requested transactions contemplated by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing)this Agreement.
Appears in 3 contracts
Sources: Merger Agreement (Diamond Offshore Drilling, Inc.), Merger Agreement (Diamond Offshore Drilling, Inc.), Merger Agreement (Noble Corp PLC)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, Parent each of the parties hereto shall use its reasonable best efforts to take, or to cause to be taken, all 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, all things necessary, proper or advisable to consummate and make effective, as promptly as practicable, the Offer and Merger and the other transactions contemplated hereby, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Company Approvals and the Parent Subsidiaries) Approvals, from Governmental Entities and the Company (making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance, or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the 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 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 contemplated hereby; provided, however, that in no event shall the Company Subsidiariesor any of its Subsidiaries be required to pay prior to the Board Appointment Date any fee, penalties or other consideration to any third party to obtain any consent or approval required for the consummation of the Offer or the Merger. No party hereto shall take any action that would reasonably be expected to prevent or materially delay or impede the receipt of any necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Company Approvals and the Parent Approvals, from Governmental Entities.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the Company and Parent shall (i) promptly, but in no event later than 5:30 p.m. Eastern Daylight Savings time on July 28, 2009, file any and all Notification and Report Forms required under the HSR Act with respect to the Offer, 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) use reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals, (iii) supply to any Governmental Entity as promptly as practicable any additional information or documentary material that may be requested pursuant to any Regulatory Law or by such Governmental Entity, and (iv) use reasonable best efforts to take, or cause to be taken, all other actions and to do, or cause to be done, all other things necessary, proper or advisable under applicable Law to consummate and make effective the TransactionsOffer, including the MergerMerger and the other transactions contemplated hereby.
(c) Each of Parent and the Company shall, as soon as practicable after the date hereof (and in any event upon request by the Outside Date)other, including (i) preparing and filing or otherwise providing, in consultation with furnish the other Party with all information concerning itself, its Subsidiaries, directors, officers and stockholders and such other matters as promptly as may be reasonably 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 reasonably practicable (and in any event by the Outside Date) all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations necessary or advisable in connection with any statement, filing, notice or application made by or on behalf of Parent, the Company or any of their respective Subsidiaries to be obtained any third party and/or any Governmental Entity in connection with the Merger and the transactions contemplated by this Agreement. 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 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 Entity with respect to such Merger or transactions. The Company and Parent shall permit counsel for the other party reasonable opportunity to review in order to consummate the Transactions, including the Mergeradvance, and (ii) taking all steps as may be necessaryconsider in good faith the views of the other party in connection with, subject 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 limitations in this Section 6.2extent not prohibited by such Governmental Entity, gives the other party the opportunity to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders attend and approvals. participate.
(d) In furtherance and not in limitation of the foregoing, each Party, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination covenants of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth parties contained in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. FurtherSection 6.4, if any Actionadministrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatenedthreatened to be instituted) challenging the Offer, the Merger or seeking to restrainany other transaction contemplated by this Agreement as violative of any Regulatory Law, prohibit or place conditions on the consummation each of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of and Parent shall cooperate in all or any portion of their respective businesses as presently conducted respects with each other and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their its respective reasonable best efforts to defend contest and resist any such action or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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 TransactionsOffer, including the MergerMerger or any other transaction contemplated hereby.
(be) Each For purposes of Parent 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 Company shallconsent, clearance or approval of, any Governmental Entity, or that otherwise may cause any restriction, in connection with the Offer, the Merger and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminationstransactions contemplated thereby, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts ▇▇▇▇▇▇▇ Act of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to1890, the ▇▇▇▇▇▇▇ Antitrust Division Act of 1914, the Department of Justice (the “DOJ”)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 “FTC”) purpose or any other Governmental Entityeffect of monopolization or restraint of trade or lessening competition through merger or acquisition, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and Law governing the contents of, direct or indirect ownership or control of any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each operations or assets of the Company and its Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (iiiii) subject to any Law with the occurrence purpose of protecting the Closing)national security or the national economy of any nation.
Appears in 3 contracts
Sources: Merger Agreement (Bankrate, Inc.), Merger Agreement (Bankrate Inc), Merger Agreement (Bankrate Inc)
Efforts. (a) Subject to Upon the terms and subject to the conditions of this AgreementAgreement (including Section 5.4(c)), Parent (and each of the Parent Subsidiaries) and the Company (and the Company Subsidiaries) Parties shall use 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 in doing, all things necessary, proper or advisable under applicable Law to consummate and make effective the Transactionstransactions contemplated by this Agreement as promptly as practicable, including the Merger, as soon as practicable after the date hereof (and in any event by the Outside Date), including including: (i) preparing the preparation and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably practicable and advisable after the date hereof, all documentation to effect of all necessary applications, notices, petitions, filings registrations, filings, ruling requests, and other documents documents, and the taking of all steps as may be necessary, to obtain as promptly as reasonably practicable (and in any event by the Outside Date) all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits permits, rulings, authorizations and authorizations clearances necessary or advisable to be obtained from any third party and/or any Governmental Entity Authority in order to consummate the Transactionstransactions contemplated by this Agreement, including (ii) the Mergerobtaining of all other necessary Consents or waivers from third parties, provided that none of the Buyer, the Seller or the Company shall be obligated to make any payment in connection with seeking such Consents or waivers or shall have any liability for failure to obtain any such Consents or waivers, and (iiiii) taking all steps as may be necessary, subject the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement.
(b) Subject to the limitations in this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders other terms and approvals. In furtherance conditions herein provided and not in limitation of without limiting the foregoing, each Partythe Parties shall (and shall cause their respective Subsidiaries to):
(i) 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 ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicableamended, and in any event within fifteen the rules and regulations thereunder (15“HSR Act”) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties)and other applicable Antitrust Laws, and (B) to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period make their respective filings under the HSR Act as soon as reasonably practicable 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 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 antitrust merits, any potential remedies, commitments or undertakings, the timing of any waivers, consents, approvals, permits, orders or authorizations, and any agreement regarding the timing of consummation of the transactions contemplated by this Agreement) with any Governmental Authority relating to any filings or investigation concerning this Agreement or the transactions contemplated hereunder unless it consults with the other Party and its Representatives in advance and invites the other Party’s Representatives to attend unless the Governmental Authority prohibits such attendance;
(iv) promptly furnish the other Party, subject in appropriate cases to appropriate confidentiality agreements to limit disclosure to outside lawyers and consultants, with draft copies prior to submission to a Governmental Authority, with reasonable time and opportunity to comment, of all correspondence, filings and communications (and memoranda setting forth the substance thereof) that they, their Subsidiaries or their respective Representatives intend to submit to any Governmental Authority, it being understood that correspondence, filings and communications received from any Governmental Authority shall be immediately provided to the other Party upon receipt;
(v) promptly furnish the other Party, subject in any event by the Outside Date) appropriate cases to appropriate confidentiality agreements to limit disclosure to outside lawyers and (y) make all other consultants, with such necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that reasonable assistance as such other Party and its Subsidiaries may be requested 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 Regulatory Laws. Governmental Authority as part of any filing.
(c) Notwithstanding anything in this Agreement to the contrary set forth contrary, in this Agreement, none of Parent, Merger Sub no event will Buyer or any of their respective Subsidiaries shall its Affiliates be required toto or will Buyer’s “reasonable best efforts,” “commercially reasonable efforts” or “cooperation” be deemed to include, and the neither Seller nor Company may not, and not permit any Company Subsidiary to, without the prior written consent of ParentBuyer, take (or cause any Affiliate to take) any of the following actions: (i) give any guarantee or other consideration in respect of any approval or other consent in connection with the transactions contemplated hereby; (ii) litigate, pursue, defend or otherwise contest any Proceeding relating to the transactions contemplated hereby; or (iii) become subject to, consent to, or offer or agree to, take or commit to otherwise take any action with respect to, any requirement, condition, limitation, understanding, agreement undertaking, Contract or order to (A) to sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion assets of business Buyer or its Affiliates (including, after the Closing, any assets of the Company, Acquired Entities or the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or Acquired Business); (B) impose any restriction, requirement or limitation on that limits the operation freedom of the business or portion action of the business of the Company, the Surviving Company, Parent, Merger Sub Buyer or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action Affiliates with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parentof, or their ability to retain, any business or assets (including after the Closing, the Company assets of the Acquired Entities or the Acquired Business); (C) that alters, changes or restricts in any way the business or commercial practices of Buyer (including after the Closing, with respect to the Acquired Business) or any of their respective Subsidiaries of all its Affiliates; or (D) that adversely affects in any portion of their respective businesses as presently conducted and as currently proposed way the benefits expected to be conducted, Parent (derived by Buyer and its Affiliates from the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Mergertransactions contemplated hereby.
(bd) Each of Parent Whether or not the Acquisition is consummated, the Buyer and the Company shall, in connection with Seller shall each be responsible for 50% of all filing fees and without limiting the efforts referenced in Section 6.2(a) payments to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) Authority in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts order to obtain any third party consents consents, approvals or waivers pursuant to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing)this Section 5.4.
Appears in 3 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Flotek Industries Inc/Cn/), Share Purchase Agreement (Flotek Industries Inc/Cn/)
Efforts. (a) Subject to the terms and conditions of this Agreement, Parent (and the Parent Subsidiaries) and each of the Company (and the Company Subsidiaries) Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate and make effective the TransactionsOffer, including the Merger, Merger and the other transactions contemplated by this Agreement as soon promptly as reasonably practicable after the date hereof (and in any event by the Outside Date)of this Agreement, including (i) preparing and filing or otherwise providingfiling, in consultation with the other Party and Parties, as promptly as reasonably practicable and advisable after the date hereof, with any Governmental Authority or other Third Party all documentation to effect all necessary applicationsnecessary, proper or advisable filings, notices, petitions, filings statements, registrations, submissions of information, applications and other documents and to obtain as promptly as reasonably practicable (ii) obtaining and in any event by the Outside Date) maintaining all waiting period expirations or terminationsapprovals, consents, clearances, waivers, licenses, orders, registrations, approvalspermits, permits authorizations and authorizations necessary or advisable other confirmations required to be obtained from any third party and/or any Governmental Entity Authority or other Third Party, in order each case, that are necessary, proper or advisable to consummate and make effective the TransactionsOffer, including the Merger, Merger and the other transactions contemplated by this Agreement (ii) taking all steps as may be necessary, subject to the limitations in this Section 6.2, to obtain all whether or not such waiting period expirations or terminationsapprovals, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders authorizations and approvals. other confirmations are conditions to the consummation of the Offer pursuant to Annex A or the Merger pursuant to Article IX).
(b) In furtherance and not in limitation of the foregoing, each Partyof Parent and the Company shall make, as applicablepromptly as reasonably practicable, agrees and in any event within ten (10) Business Days of the date of this Agreement, unless a later date is agreed to (x) make, or cause to be madeby Parent and the Company, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, transactions contemplated by this Agreement. Each of the Company and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to Parent shall supply as promptly as reasonably practicable and advisable any additional information and documentary materials material that may be reasonably requested pursuant to the HSR Act foregoing, and to take all other actions necessary to cause the expiration or termination of the applicable waiting periods regarding the foregoing as soon as practicable, subject to the terms and conditions of this Agreement. The Company and Parent shall each request early termination of the waiting period with respect to the Merger under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the MergerAct.
(bc) Each Except as prohibited by applicable Law or Order and subject to an appropriate agreement limiting the disclosure of competitively sensitive information to, as appropriate, in-house counsel, outside counsel and consultants retained by such counsel, each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, shall (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission with a Governmental Authority in connection with the transactions contemplated by this Agreement and in connection with any investigation or other inquiryinquiry by or before a Governmental Authority relating to the transactions contemplated by this Agreement, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Partysubmissions, (ii) promptly inform the other Party of (and if in writing, supply to the other Party) any substantive communication received by such Party from, or given by such Party to, the Federal Trade Commission, the Antitrust Division of the Department of Justice (the “DOJ”)Justice, the Federal Trade Commission (the “FTC”) or any other similar Governmental Entity, by promptly providing copies to the other Party of any such written communications, Authority and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions transactions contemplated by this Agreement (including Item “4(c)” and “4(d)” documents” as those terms are used in the rules and regulations under the HSR Act, except that such documents need not be disclosed even to outside counsel or consultants retained by such counsel to the extent such documents discuss deal negotiations, alternative offers, valuation, or similar subjects), (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of prior to taking any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection material position with any proceeding by a private party, with any other Person, and respect to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions filings under the HSR Act or any other Regulatory Competition Law in discussions with or filings to be submitted to any Governmental Authority, (iv) 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 filings under the HSR Act or any other Competition Law and (v) coordinate with the other in preparing and exchanging such information and promptly provide the other (and its counsel) with copies of all filings, presentations or submissions (and a summary of any oral presentations) made by such Party with any Governmental Authority relating to this Agreement or the transactions contemplated hereby under the HSR Act or any other Competition Law.
(d) Unless prohibited by applicable Law or Order or by the applicable Governmental Authority, including but not limited to directing each of the Company and unilaterally determining Parent shall (i) to the extent reasonably practicable, not participate in or attend any decision to pull and refile meeting, or engage in any substantive conversation, with any Governmental Filing Authority in respect of the Offer or voluntarily extend the Merger (including with respect to any of the actions referred to in Section 8.1(a) but other than as contemplated by Section 2.4 and Section 2.5) 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 from participating or attending any such meeting or engaging in any such conversation, keep the non-participating Party reasonably apprised with respect thereto.
(e) Notwithstanding anything to the contrary in this Section 8.1, but subject to this Section 8.1(e), Parent shall take 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, including (i) the prompt use of its best efforts to avoid the entry of, or to effect the dissolution of, any permanent, preliminary or temporary Order that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the transactions contemplated by this Agreement, including (A) 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, (B) 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 (including, after the Closing, the Company and its Subsidiaries) (and the entry into agreements with, and submission to orders of, the relevant Governmental Authority giving effect thereto) and (C) 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), in 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 (ii) the prompt use of its 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 that Parent shall not be required to divest, license, hold separate, or take any other action (“Remedy”) with respect to any publication, brand, business, or line of business of the Company, Parent or their respective Subsidiaries that would reasonably be expected to have a Company Material Adverse Effect. Nothing in this Section 8.1(e) shall obligate Parent to agree to any Remedy or other remedy not conditioned on the consummation of the Offering and the Closing.
(f) Neither Parent nor any of its Subsidiaries shall, directly or indirectly, acquire or agree to acquire any other Person or assets (whether by merger, consolidation, stock or asset purchase, tender or exchange offer, recapitalization, reorganization or any other form of transaction) to the extent such acquisition would reasonably be expected to materially impair or delay the ability of Parent to obtain the expiration or termination of the waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the CompanyAntitrust Law.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing).
Appears in 3 contracts
Sources: Merger Agreement, Merger Agreement (Meredith Corp), Merger Agreement (Time Inc.)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, Parent (and each of the Parent Subsidiaries) and the Company (and the Company Subsidiaries) parties hereto shall use 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, all things necessary, proper or advisable under applicable Law Laws to consummate and make effective the Transactions, including Mergers and the Merger, as soon as practicable after the date hereof (and in any event other transactions contemplated by the Outside Date)this Agreement, including (i) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably practicable and advisable after the date hereof, all documentation to effect obtaining all necessary applicationsactions or nonactions, notices, petitions, filings and other documents and to obtain as promptly as reasonably practicable (and in any event by the Outside Date) all waiting period expirations or terminationswaivers, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations necessary expirations or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate the Transactionsterminations of waiting periods, including the MergerGalaxy Specified Approvals and the Mars Specified Approvals, from Governmental Entities and (ii) the making of all necessary registrations and filings and the taking of all steps as may be necessarynecessary to obtain an approval, subject clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) obtaining all necessary consents, approvals or waivers from third parties, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers and the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Galaxy or any of its Subsidiaries, or Mars or any of its Subsidiaries or Holdco be required to pay prior to the limitations in 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 Section 6.2, Agreement under any contract or agreement.
(b) Subject to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders the terms and approvals. In furtherance conditions herein provided and not in limitation of without limiting the foregoing, each Partythe parties hereto shall (i) promptly, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, and but in any no event within later than fifteen (15) Business Days after the execution of this Agreement date hereof (unless a or such later date is as may be mutually agreed between in writing by the Partiesparties hereto), file any and to supply as promptly as reasonably practicable all required Notification and advisable any additional information and documentary materials that may be requested pursuant to Report Forms under the HSR Act with respect to the Mergers and to take all the other actions necessary transactions contemplated by this Agreement, and use reasonable best efforts to cause the expiration or termination of the any applicable waiting period periods under the HSR Act Act; (ii) use (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to use) reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking (and, in the case of Mars, Holdco or the Merger Subs, cause each of their respective affiliates to take) all such further action as may be necessary promptly to resolve such objections, if any, as the United States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or competition authorities of any other nation or other jurisdiction or any other person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Mergers so as to enable the Closing to occur as soon as reasonably practicable possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the Outside Date) sale, divestiture or disposition of any assets or businesses of Mars, Holdco or their respective Subsidiaries or affiliates, or of Galaxy or its Subsidiaries and (y) make all other necessary filings under otherwise taking or committing to take any applicable Regulatory Law actions that after the Closing Date would limit the freedom of Holdco or its Subsidiaries’ (including the Surviving Corporations’) or affiliates’ freedom of action with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporations’) businesses, product lines or assets, in each case as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under required in order to avoid commencement of litigation seeking the entry of, or to effect the dissolution of, any Regulatory Laws. Notwithstanding anything to injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the contrary set forth in this Agreementeffect of preventing the Closing, none of Parent, Merger Sub materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither Galaxy nor any of their respective its Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, or consent to, or offer or agree to, take to or commit to otherwise take any action with respect to, any requirement, condition, limitation, understanding, agreement or order of a Governmental Authority to (A) sell, license, assign, transfer, divest, to hold separate or otherwise dispose of any assetsof, business or portion of to conduct, restrict, operate, invest or otherwise change the assets or business of the Company, the Surviving Company, Parent, Merger Sub Galaxy or any Subsidiary of any of the foregoing or (B) impose any restrictionits Subsidiaries, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any unless such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries Galaxy only in the event that the Closing occurs; provided that none of Mars, Holdco or the Merger Subs shall be required to take any of the actions described in clauses (iv)(x) or (y) above with respect to any of their or Galaxy’s assets or businesses if such action would be material in relation to the assets or business of Holdco, Mars, Galaxy and their respective Subsidiaries, taken as a whole, at or after the Effective Time.
(c) Subject to applicable legal limitations and the instructions of any Governmental Entity, Galaxy and Mars shall keep each other apprised of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with copies of notices or other communications received by Galaxy or Mars, as the case may be, or any of their respective Subsidiaries, from any third party and/or any Governmental Entity with respect to such transactions. FurtherGalaxy and Mars shall permit counsel for the other party reasonable opportunity to review in advance, and consider in good faith the views of the other party in connection with, any proposed written communication to any Governmental Entity. Each of Galaxy and Mars agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it consults with the other party in advance and, to the extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 5.6, if any Actionadministrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatenedthreatened to be instituted) challenging or seeking to restrainany transaction contemplated by this Agreement as violative of any Law, prohibit or place conditions on the consummation each of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of Galaxy and Mars shall cooperate in all or any portion of their respective businesses as presently conducted respects with each other and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their respective reasonable best efforts to defend contest and resist any such action or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(b) Each of Parent Mergers and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including transactions contemplated by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the CompanyAgreement.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing).
Appears in 2 contracts
Sources: Merger Agreement (Macrovision Corp), Merger Agreement (Gemstar Tv Guide International Inc)
Efforts. (a) Subject to Upon the terms and subject to the conditions of this Agreement, Parent (each Party shall, and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall cause their respective Affiliates to, use their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and cooperate with each other in order to do, all things necessary, proper or advisable under applicable Law (including under any Antitrust Law) to consummate the TransactionsMerger and the other transactions contemplated by this Agreement as promptly as practicable, including the Merger, as soon as practicable after the date hereof (and but in any event by before the Outside End Date), including including: (i) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably 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 reasonably practicable (and in any event by the Outside Date) all waiting period expirations or terminations, consents, clearances, waivers, licenses, ordersforms, registrations, approvalsnotifications, permits and authorizations necessary notices required to be filed to consummate the Merger and the other transactions contemplated hereby (including as set forth in Section 5.05(d) below); and (ii) obtaining and maintaining any requisite consent, approval, authorization, waiver or advisable Order required to be obtained from any third party and/or other Person, including any Governmental Entity in order to consummate the Transactions, including the Merger, and Authority (ii) taking all steps as may be necessary, subject to the limitations in this Section 6.2, to obtain all whether or not such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permitsapprovals, authorizations, orders and approvals. waivers or Orders are conditions to the consummation of the Merger pursuant to Article 6).
(b) In furtherance and not in limitation of the 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 Partyand 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, as applicableand in any event before the End Date. In particular, agrees ▇▇▇▇▇▇ and ▇▇▇▇▇▇ Sub agree that their obligations pursuant to this Section 5.05 shall include (xi) make, or cause if reasonably determined by Parent to be madenecessary after consultation with the Company, an appropriate “pulling and refiling” their filing of a Notification and Report Form 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 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 agree to make, and to cause their respective Affiliates to make, any necessary filings under the HSR Act and any other Antitrust Laws as promptly as reasonably practicablepracticable after execution of this Agreement; provided, and however, that any necessary filings under the HSR Act shall, in any event event, be made within fifteen (15) 10 Business Days after the execution of this Agreement (unless a later date is mutually agreed between provided, that if the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to Federal Trade Commission or the HSR Act and to take all other actions necessary to cause the expiration or termination Antitrust Division of the applicable waiting period United States Department of Justice is closed or not accepting filings under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (Ba “Closure”), such restriction10 Business Day period shall be extended day-for-day, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any for each Business Day such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that Closure is in effect and that prohibits, prevents or restricts consummation of the Transactions, including the Merger.
(b) Each of effect). Parent and the Company shall, in connection and shall cause their respective Affiliates to, (i) comply at the earliest practicable date with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions any request under the HSR Act or any other Regulatory LawAntitrust Laws to provide information, documents or other materials requested by any Governmental Authority (iincluding 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) coordinate and cooperate in connection with their respective efforts to obtain termination or expiration of the applicable waiting period and all respects, including by furnishing to requisite clearances and approvals under the HSR Act and any other Antitrust Laws as promptly as practicable information and assistance as practicable, but in any event before the other may reasonably requestEnd Date, and consult with each other in connection with any filing unless prohibited by applicable Law or submission and in connection with any investigation or other inquirya Governmental Authority, including any proceeding initiated by a private party, including by allowing (A) keep outside antitrust counsel for the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party informed 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”) or any other of its Affiliates from any Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case Authority regarding any of the Transactions transactions contemplated hereby, and (iiiB) permit provide outside antitrust counsel for the other Party with a reasonable opportunity to review in advance any proposed communication that it gives toby such Party or its Affiliates with any Governmental Authority, and consult with each outside antitrust counsel for the other in advance of Party prior to any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other PersonGovernmental Authority, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required in such meetings or conferences. Without the prior written consent of the Company (such consent not to be provided pursuant unreasonably withheld, conditioned or delayed), Parent will not, and will not permit its Affiliates to consent or agree to extend the waiting period under the HSR Act or enter into any agreement with any Governmental Authority with respect to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each transactions contemplated by this Agreement. Each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) 5.05 as “Outside Counsel Only Materialoutside antitrust counsel only.” which such 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 on the one hand or the Company on Company, as the other) case may be), or its legal outside antitrust counsel. Notwithstanding anything to the contrary in this Agreement Section 5.05, materials provided to the contraryother party hereto or its outside antitrust counsel may be redacted to remove references concerning the valuation of the Company and its Subsidiaries or other 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 to any Governmental Authority; provided, however, that Parent shall be entitled make the final determination as to lead the strategy and appropriate course of action for seeking action.
(e) Parent shall not, and obtaining all 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 applicable waiting period expirations and all requisite clearances and approvals under the HSR Act and any other Antitrust Laws with respect to the Merger as promptly as practicable, but in any event before the End Date; or terminations(ii) materially delay or materially and adversely affect Parent’s ability to avoid the entry of, consentsthe commencement of any Action seeking the entry of, clearancesor effect the dissolution of, waiversany Order (whether temporary, licensespreliminary or permanent) that restricts, orders, registrations, approvals, permits prevents or prohibits consummation of the Merger and authorizations for the Transactions other transactions contemplated by this Agreement under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the CompanyAntitrust Laws.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing).
Appears in 2 contracts
Sources: Merger Agreement (Gentex Corp), Merger Agreement (Gentex Corp)
Efforts. (a) Subject to the terms and conditions of 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 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 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 (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 Parent Subsidiaries) and request of Parent, the Company (and the Company Subsidiariesits Subsidiaries shall) shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to resolve such objections any Governmental Entity may assert under applicable any Antitrust Law or Foreign Investment Law with respect to consummate the TransactionsOffer, including the MergerMerger and 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 Entity with respect to the Offer, the Merger and the other transactions contemplated by this Agreement so as soon to enable the Closing to occur as promptly as practicable after the date hereof (and in any event by no later than the Outside End Date), including (ix) preparing proposing, negotiating, committing to, effecting, agreeing to and filing executing, by consent decree, settlement, undertaking, stipulations or otherwise, the sale, divestiture, transfer, license, hold separate or disposition of any and all of the share capital or other equity voting interests, assets (whether tangible or intangible), businesses, divisions, operations, products or product lines of Parent (including its Subsidiaries 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 providing, in consultation with the other Party taking or committing to take any actions or agreeing to any undertakings that would limit Parent’s (including its Subsidiaries’ and as promptly as reasonably 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 reasonably practicable (and in any event by the Outside Date) 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 TransactionsAffiliates’, including the Merger, and (iiSurviving Corporation’s) taking all steps as may be necessary, subject to the limitations in this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation freedom of the foregoing, each Party, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act action with respect to or their ability to retain, or impose obligations on Parent’s (including its Subsidiaries’ and Affiliates’, including the Transactions 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), in each case so as promptly as reasonably practicableto satisfy the conditions to Closing or to avoid the entry of, and or to effect the dissolution of, any injunction, temporary restraining order or other order in any event within fifteen Legal Proceeding that would otherwise have the effect of preventing the Closing, delaying the Closing or delaying the Closing beyond the End Date (15) Business Days after each such action in the execution of this Agreement foregoing clauses (unless a later date is mutually agreed between the Partiesx), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Datey) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicablez), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Lawsa “Remedy Action”). Notwithstanding anything Anything in this Agreement to the contrary set forth in this Agreementnotwithstanding, (i) none of 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, individually or in the 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 5.6(c) that, individually or 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 Parent, Merger Sub, or the Company, nor any of their respective Subsidiaries or Affiliates shall be required toto agree to or effectuate any Remedy Action unless the effectiveness thereof is conditioned on the Closing; and (iii) without Parent’s prior written consent, and the Company may not, shall not (and shall not permit any Subsidiary of the Company Subsidiary to) take, without commit or agree to any Remedy Action.
(d) Subject to the prior other terms and conditions of this Agreement, each of 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 consent communications, furnish the other parties with a copy of Parentsuch communication), become subject to(iii) permit the other parties to review and discuss in advance, consent toand 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 regarding the Offer, the Merger and the other transactions contemplated by this Agreement, 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, in each case, regarding the Offer, the Merger and the other 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 offer as necessary to address reasonable attorney-client, attorney work product or agree to, take or commit other privilege concerns and (y) reasonably designate any competitively sensitive material provided to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order 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 (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business the outside legal counsel of the Companyrecipient and will not be disclosed by such outside counsel to employees, the Surviving Companyofficers, Parent, Merger Sub or any Subsidiary of any directors of the foregoing or recipient, unless written permission is obtained in advance from the party providing the materials).
(Be) impose any restriction, requirement or limitation on Subject to the operation other terms and conditions of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Furtherthis Agreement, if any ActionLegal Proceeding (administrative or judicial), decree, judgment, injunction or other order, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed threatened to be conductedinstituted) challenging, Parent (and the Parent Subsidiaries) and 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 the Company its Subsidiaries) and Parent (and its Subsidiaries and Affiliates) shall cooperate in all respects with each other and shall use their respective reasonable best efforts to defend or contest, including through litigation or other means, contest and resist any objection to, or Actions challenging, the consummation of the Transactions, such Legal 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 TransactionsOffer, including the MergerMerger and the other transactions contemplated by this Agreement.
(bf) Each of The Company (and its Subsidiaries) and Parent (and its Subsidiaries and Affiliates) shall jointly develop the Company shall(i) strategy for obtaining all necessary actions or nonactions, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminationswaivers, consents, clearances, waivers, licenses, orders, registrations, approvals, permits approvals and authorizations for the Transactions under the HSR Act expirations or any other Regulatory Law, (i) cooperate in all respects, including by furnishing terminations of waiting periods so as to the other enable Closing to occur as promptly soon as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Partypracticably possible, (ii) promptly inform 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 and the other Party of any communication received transactions contemplated 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”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions this Agreement and (iii) permit strategy for the other Party to review in advance any communication that it gives to, defense and consult with each other in advance settlement of any in-person meeting, telephone call Legal Proceeding brought by or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or before any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and that has authority to enforce the extent not prohibited by the DOJ, the FTC applicable Antitrust Laws or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such material and the information contained therein Foreign Investment Laws. No party 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 on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act (including by withdrawing and refiling its filing under the HSR Act) or any other applicable Regulatory Antitrust Law and (ii) or Foreign Investment Law or enter into any decision commitment to enter into, and the contents of, any or agreement (including a timing agreement) with any Governmental Entity to delay and delay, or otherwise not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreementas promptly as practicable, the term thereof 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 relating to, or the consummation of such acquisition, merger or consolidation would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and to: (yi) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In connection with and without limiting the foregoing, impose any material delay in the event that Parent requests obtaining of, or materially increase the Company to do sorisk of not obtaining, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each consents of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are Governmental Entity necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of ParentOffer, the Company Merger or the other transactions contemplated by this Agreement or the expiration or termination of any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or applicable waiting period; (ii) subject to materially increase the occurrence risk of any Governmental Entity seeking or entering an Order prohibiting the consummation of the Closing)Offer, the Merger or the other transactions contemplated by this Agreement; (iii) materially increase the risk of not being able to remove any such Order on appeal or otherwise; or (iv) materially delay or prevent the consummation of the Offer, the 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, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) Parent shall, and shall cause their respective 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, all things necessary, proper or advisable under applicable Applicable Law to consummate the TransactionsMerger and the other transactions contemplated by this Agreement as promptly as practicable, including the Merger(i) obtaining all necessary consents, approvals or waivers from Third Parties, (ii) preparing and filing as soon promptly as practicable after the date hereof (and in with any event by the Outside Date), including (i) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably practicable and advisable after the date hereof, Governmental Authority all documentation to effect all necessary applicationsfilings, notices, petitions, filings statements, registrations, submissions of information, financial statements, records, applications and other documents documents, in each case, to the extent applicable, (iii) obtaining and to obtain as promptly as reasonably practicable (and in any event by the Outside Date) maintaining all waiting period expirations or terminationsapprovals, consents, clearancesregistrations, waiversPermits, authorizations, licenses, orders, registrations, approvals, permits waivers and authorizations necessary or advisable other confirmations required to be obtained from any third party and/or any Governmental Entity in order Authority that are necessary to consummate the Transactionstransactions contemplated by this Agreement, including (iv) defending or contesting any action, suit or proceeding challenging this Agreement or the Merger, transactions contemplated hereby and (iiv) taking all steps as may be necessary, subject executing and delivering any additional instruments necessary to consummate the limitations in this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. transactions contemplated hereby.
(b) In furtherance and not in limitation of the foregoing, each Partyof Parent and the Company shall, as applicableand shall cause their respective Affiliates to, agrees to make (xi) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by within 5 Business Days after the Outside Datedate hereof), (ii) and each other appropriate filing required pursuant to any Foreign Antitrust Law (ycollectively with the HSR Act, the “Antitrust Laws”) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicablepracticable (and in any event within 15 Business Days after the date hereof), and to supply as promptly as reasonably (iii) comply at the earliest practicable and advisable date with any additional information and documentary materials that may be requested request under any Regulatory Laws. Notwithstanding anything to of the contrary set forth in this AgreementAntitrust Laws for additional information, none documents, or other materials received by each of Parent, Merger Sub them or any of their respective Subsidiaries shall be required to, or Affiliates from any Governmental Authority in respect of such filings or such transactions and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (iiv) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult 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 changes suggested in connection therewith), and in connection with resolving any investigation or other inquiry, including inquiry of any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments Governmental Authority under any of the 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 Party, (ii) all information required for any application or 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 Party parties hereto of any oral communication received by with, and provide copies of written communications with, any Governmental Authority regarding any 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”) filings or any other such transaction. No party hereto shall independently participate in any formal meeting with any Governmental Entity, by promptly providing copies to the other Party Authority in respect of any such written communicationsfilings, 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 of any communication received or given cooperate with one another in connection with any proceeding analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by a private party, in each case regarding or on behalf of any party hereto relating to proceedings under any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company Antitrust Laws. Any party may, as each it deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other parties under this Section 6.2(b) 8.01 as “Outside Counsel Only Material” which such material outside counsel only”. Such materials and the information contained therein shall be given only to the outside antitrust legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers officers, or directors of the recipient recipient, unless express written permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counselmaterials. Notwithstanding anything in this Agreement The parties shall take reasonable efforts to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions share information protected from disclosure under the HSR Act attorney-client privilege, work product doctrine, joint defense privilege or any other Regulatory Law, including but not limited privilege pursuant to directing and unilaterally determining (i) this section so as to preserve any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Companyprivilege.
(c) In The Company and Parent shall, and shall cause their respective Affiliates to, cooperate with each other and use their reasonable best efforts to 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 and without limiting any of the foregoing, in ) (each a “Divestiture Action”). In the event that Parent requests the Company agrees to do soeffect a Divestiture Action, the Company shall give any notices and its Subsidiaries shall, upon request by Parent, consent and/or agree as needed in order to third parties required under Contracts, effectuate a Divestiture Action to the extent such action relates to the Company or its Subsidiaries or its or their businesses or assets. Further Parent and the Company shall usenot take, and cause each 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 to the consummation of the Company Subsidiaries 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 usebe entered in any proceeding that would make consummation of the transactions contemplated hereby in accordance with the terms of this Agreement unlawful or that would restrain, enjoin or otherwise prevent or materially delay the consummation of the transactions contemplated by this Agreement, Parent shall use its reasonable best efforts to obtain vacate, modify or suspend such injunction or order so as to permit such consummation prior to the End Date. The Company shall cooperate with Parent and shall use its reasonable best efforts to assist Parent in resisting and reducing any Divestiture Action. Parent shall, in a manner consistent with the terms and the objective of this Agreement, control and lead all actions, strategy and communications, and make all determinations as to the appropriate course of action and the timing of all actions and communications, with respect to Antitrust Laws, Governmental Authorities and all other related matters, including dealings with Governmental Authorities and any Divestiture Actions or litigation under Antitrust Laws; provided, however, that Parent shall, and shall cause its Affiliates to, to the 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 consents to regarding any Contracts that are necessary to consummate the Transactions, including the MergerDivestiture Action. Notwithstanding anything to the contrary hereinin this Agreement, none 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 respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing)Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Veeco Instruments Inc), Merger Agreement (Ultratech Inc)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, the Company, Parent and Offeror shall use all reasonable best efforts to take promptly, or cause to be taken, all actions, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Offer, including (i) the obtaining of the Specified Approvals and the Parent Subsidiaries) Offeror Approvals, from Governmental Entities and the Company (making of all necessary registrations and filings and the Company Subsidiariestaking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity; (ii) the obtaining of all necessary consents, approvals or waivers from third parties; (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the 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 to consummate the transactions contemplated by this Agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the Company, Parent and Offeror shall (i) use all reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) promptly making all such filings and timely obtaining all such consents, permits, authorizations or approvals; and (ii) use reasonable best efforts to take, or cause to be taken, all other actions and to do, or cause to be done, all other things necessary, proper or advisable under applicable Law to consummate and make effective the Transactionstransactions 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 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 Mergerother with copies of notices or other communications received by the Company, Parent or Offeror, as soon as practicable after the date hereof (and in case may be, or any event by the Outside Date)of their respective Subsidiaries or Affiliates, including (i) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably 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 reasonably practicable (and in any event by the Outside Date) 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 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 order 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 consummate 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 Transactions, including opportunity of the Merger, other party’s counsel to review and comment on materials in any language other than the original language of such materials and (ii) taking all steps as materials may be necessary, redacted (x) by the Company to remove proposals from third parties with respect thereto (subject to the limitations in this Company’s obligations under Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation of the foregoing, each Party, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties4.02), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other by the Company or Offeror as necessary filings under any applicable Regulatory Law as promptly as reasonably practicableto comply with contractual agreements, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and (z) by the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer Offeror as necessary to address privilege or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business confidentiality concerns. Each of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Companyone hand, the Surviving Companyand Parent and Offeror, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Companyother hand, agrees not to participate in any substantive meeting or discussion, either in Person or by telephone, with any Governmental Entity in connection with the Surviving Companyproposed transactions unless it consults with the other party in advance and, Parentto the extent not prohibited by such Governmental Entity, Merger Sub gives the other party the opportunity to attend and participate.
(d) If any administrative or any Subsidiary of any of the foregoing judicial action or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Actionproceeding, including any proceeding by a private party, is instituted (or threatenedthreatened to be instituted) challenging or seeking to restrainany transaction contemplated by this Agreement as violative of any Law, prohibit or place conditions each of the Company, on the consummation of one hand, and Parent and Offeror, on the Transactionsother hand, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of shall cooperate in all or any portion of their respective businesses as presently conducted respects with each other and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their respective reasonable best efforts to defend contest and resist any such action or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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 TransactionsOffer and the other transactions contemplated by this Agreement. Notwithstanding the foregoing or any other provision of this Agreement, including the Mergernothing in this Section 4.03 shall limit a party’s right to terminate this Agreement pursuant to Article V so long as such party has, prior to such termination, complied with its obligations under this Section 4.03.
(be) Each Without limiting any other obligation under this Agreement, during the period from the date of this Agreement until the Offer Closing Date, each of the Company, Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) Offeror shall not take or agree to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or take any other Regulatory Law, (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication action that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow prevent or delay the parties sufficient time from obtaining any Governmental Approval in connection with the Offer, or to consummate prevent or materially delay or impede the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views consummation of the CompanyOffer.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing).
Appears in 2 contracts
Sources: Investment and Tender Offer Agreement (Global Aviation Leasing Co., Ltd.), Investment and Tender Offer Agreement (Avolon Holdings LTD)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, Parent the Parties shall use (and the Parent Subsidiariesshall cause their respective Affiliates to use) and the Company (and the Company Subsidiaries) shall 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 in doing, all things reasonably necessary, proper or advisable under applicable Law Laws to cause the conditions to Closing set forth in Article 6 to be satisfied and to consummate and make effective the Transactions, including Transactions and the Merger, other transactions contemplated by this Agreement as soon promptly as practicable after the date hereof (of this Agreement and in any event by prior to the Outside End Date), including (i) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably practicable and advisable after the date hereof, all documentation to effect obtaining of all necessary applicationsactions or nonactions, noticesauthorizations, petitionspermits, filings and other documents and to obtain as promptly as reasonably practicable (and in any event by the Outside Date) all waiting period expirations or terminationswaivers, consents, clearances, waiversapprovals and expirations or terminations of waiting periods (collectively, 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 Transactions“Consents”), including the MergerCompany Approvals and the Parent Approvals, from Governmental Entities and (ii) the making of all other necessary registrations, notices, notifications, petitions, applications, reports and other filings and the taking of all steps as may be necessary, subject proper or advisable to obtain an approval, clearance or waiver from, or to avoid any Action by any Governmental Entity, (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 no event shall either the Company or Parent or any of their respective Subsidiaries be required to pay, prior to the limitations First Parent Merger Effective Time any fee, penalty or other consideration to any third party (other than filing or administrative fees paid to a Governmental Entity) for any Consent required for or triggered by the consummation of the Transactions and the other transactions contemplated by this Agreement or otherwise.
(b) Subject to the terms and conditions set forth in this Agreement and without limiting the provisions of Section 6.25.7(a), to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders the Parties shall (i) prepare and approvals. In furtherance and not in limitation of the foregoing, each Party, as applicable, agrees to file (xA) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act 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 Transactions Consents from Governmental Entities, including 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, in each case as promptly as reasonably practicablepracticable (and, and in the case of the Consents from any event Governmental Entity under the Antitrust Laws of the jurisdictions set forth on Section 6.3(f) of the Company Disclosure Schedules, within fifteen (15) Business Days after the execution of this Agreement 35 days (unless a later date is mutually agreed between 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 to supply file such filings as promptly as reasonably practicable after taking into account the delays caused by (i) and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or (ii), and, in each case, request early termination of the applicable statutory waiting period under the HSR Act as soon as reasonably practicable Act, and to the extent applicable, under the applicable Laws with respect to all other Consents from Governmental Entities, (and in any event by the Outside Dateii) promptly obtain all necessary Consents from third parties (that are not Governmental Entities) and (yiii) make take, or cause to be taken, all other necessary filings 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 the Transactions. No Party shall withdraw or pull and refile its Notification and Report Form under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without HSR Act except with the prior written consent of Parentthe other Parties (such consent not to be unreasonably withheld, become subject toconditioned 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, consent tothe 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 offer 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, (ii) propose, effect or agree toto the disposition of the businesses, assets and equity or other business interests of the Company, Parent or their respective Subsidiaries, (iii) create, 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 or commit to take any action that would restrict Parent’s, the Company’s or any of their respective Subsidiaries’ freedom of action, including with respect to, or that would effect changes to the conduct of business of, any requirementbusinesses, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, and equity or other business interests, relationships, ventures or portion of business contractual rights and obligations of the Company, the Surviving CompanyParent or their respective Subsidiaries; provided, Parenthowever, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or will take, and will cause its Subsidiaries will become subject toto take, consent to or offer or agree to, or otherwise take any action with respect to, described in this Section 5.7(c) (any such requirementaction requested by Parent, conditiona “Remedy Action”), limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order action is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on conditioned upon the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(bd) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) The Parties shall cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with the making of all registrations, filings, notifications, communications, submissions and any filing or submission other actions pursuant to this Section 5.7(d), and, subject to applicable legal limitations and in connection the instructions of any Governmental Entity, the Company Parties, on the one hand, and Parent and each Parent Merger Sub, on the other hand, shall keep each other apprised of the status of matters relating to the completion of the Transactions and the other transactions contemplated thereby, including promptly informing and furnishing the other with any investigation copies of notices or other inquirycommunications received or given by the Company or Parent, including as the case may be, or any proceeding initiated of their respective Subsidiaries, from or to any third party and/or any Governmental Entity with respect to such transactions. In addition to the obligations contemplated by a private partySection 5.3 and Section 5.5, including by allowing and subject to applicable Law relating to the exchange of information, the Company Parties, on the one hand, and Parent and each Parent Merger Sub, on the other hand, shall permit counsel for the other Party to have a reasonable opportunity to review in advance advance, and comment on drafts of filings and submissions and reasonably considering consider in good faith comments the views of the other PartyParties 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 (ii) promptly inform except that is requested by any Governmental Entity to remain confidential from the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”Parties), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (Ai) to remove references concerning the valuation of Parent, the businesses of the Company or any of their respective and its Subsidiaries, or proposals from third parties with respect thereto, (Bii) as necessary to comply with contractual arrangements agreements and (Ciii) as necessary to address reasonable privilege or confidentiality concerns; provided. The Parties shall take their respective reasonable efforts to share information protected from disclosure under the attorney-client privilege, furtherwork product doctrine, that each joint defense privilege or any other privilege pursuant to this Section 5.7(d) in a manner so as to preserve the applicable privilege. Each of the Parties 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 Parties in advance and, to the extent not prohibited by such Governmental Entity, gives the other Parties the opportunity to attend and participate.
(e) Subject to the obligations in this Section 5.7(e), Parent and the Company may, as each deems advisable shall reasonably cooperate with respect to devising and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead implementing the strategy and course of action timing for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for any Consents required under any applicable Law in connection with the Transactions under and the HSR Act or any other Regulatory Lawtransactions contemplated by this Agreement. In addition, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter intoParties shall jointly develop, and each of the contents ofParties shall consult and reasonably cooperate with one another, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of one another, the Company.
(c) In strategy in connection with all meetings and communications with any Governmental Entity in connection with obtaining such Consents. Neither Parent nor the Company nor any of their respective Subsidiaries shall initiate any such discussions or proceedings with any Governmental Entity, or take or agree to take any actions, restrictions or conditions with respect to obtaining any Consents in connection with the Transactions and the other transactions contemplated by this Agreement without limiting the prior written consent of the other Party hereto. Notwithstanding the foregoing, in the event that Parent requests of any dispute between the Company Parties relating to do sothe strategy or appropriate course of action or content of any submission or communication in connection with obtaining any Consents required under any applicable Law with respect to the Transactions and the other transactions contemplated by this Agreement, the Company Parties shall give any notices escalate such dispute to third parties required under Contracts, and the Company shall use, and cause each general counsels (or most senior legal personnel) of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Mergerand Parent for resolution. Notwithstanding anything If such dispute is not resolved pursuant to the contrary hereinpreceding sentence, none of ParentParent shall have the right, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contractin its sole discretion, to obtain make the final determination with respect to such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing)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, Parent (and each of the Parent Subsidiaries) and the Company (and the Company Subsidiaries) parties hereto shall use 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, all things necessary, proper or advisable under applicable Law to consummate the Transactions, including the Mergerand make effective, as soon promptly as practicable after practicable, the date hereof (Offer and in any event by Merger and the Outside Date)other transactions contemplated hereby, including (i) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably practicable and advisable after the date hereof, all documentation to effect obtaining of all necessary applicationsactions or nonactions, notices, petitions, filings and other documents and to obtain as promptly as reasonably practicable (and in any event by the Outside Date) all waiting period expirations or terminationswaivers, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations necessary expirations or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate the Transactionsterminations of waiting periods, including the MergerCompany Approvals and the Parent Approvals, from Governmental Authorities and (ii) the making of all necessary registrations and filings and the taking of all steps as may be necessarynecessary to obtain an approval, subject 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 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 contemplated hereby. In furtherance of the foregoing, the Company may, but in no event shall the Company or any of its Subsidiaries be required to, pay prior to the limitations in this Section 6.2Effective Time any fee, penalties or other consideration to any third party to obtain all such waiting period expirations any consent or terminationsapproval required for the consummation of the Offer, the Top-Up Option or the Merger. No party hereto shall take any action that would reasonably be expected to prevent or materially delay or impede the receipt of any necessary actions or nonactions, waivers, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation of the foregoing, each Party, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution expirations or terminations of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactionsperiods, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (Approvals and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contestApprovals, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Mergerfrom Governmental Authorities.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing).
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, Parent (and each of the Parent Subsidiaries) parties hereto shall, and the Company shall cause each of the Company Subsidiaries to, use its reasonable best efforts (subject to, and in accordance with, applicable Law) to take promptly, or to cause to be taken, all actions, and to do promptly, or to cause to be done, and to assist and to cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective the Merger and the other transactions contemplated hereby, including (i) the obtaining of all necessary actions or nonactions, waivers, consents and 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 or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby and (iv) the execution and delivery of any additional instruments reasonably necessary to consummate the transactions contemplated hereby.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the Company Subsidiariesand Parent shall (i) shall promptly, but in no event later than ten (10) Business Days after the date hereof, make their respective filings and thereafter make any other required submissions under the HSR Act as promptly as reasonably practicable, (ii) use reasonable best efforts to cooperate with each other in (A) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers or approvals are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (B) timely making all such filings and timely seeking all such consents, permits, authorizations or approvals, (iii) use reasonable best efforts to take, or to cause to be taken, all other actions and to do, or to cause to be done, all other things necessary, proper or advisable under applicable Law to consummate and make effective the TransactionsMerger and the other transactions contemplated hereby, including and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Merger, Merger so as to enable the Closing to occur as soon as practicable after the date hereof reasonably possible (and in any event by no later than the Outside 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 completion of the transactions contemplated by this Agreement, including (i) preparing and filing or otherwise providing, in consultation with to the extent permitted by Law promptly furnishing the other Party with true and as promptly as reasonably practicable and advisable after the date hereof, all documentation to effect all necessary applications, notices, petitions, filings and complete copies of notices or other documents and to obtain as promptly as reasonably practicable (and in any event communications sent or received by the Outside Date) all waiting period expirations Company or terminationsParent, consentsas the case may be, clearancesor any of their Subsidiaries, waivers, licenses, orders, registrations, approvals, permits and authorizations necessary to or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate the Transactions, including the Mergerwith respect thereto, and permit the other to review in advance any proposed communication by such party to any supervisory or Governmental Entity and (iiv) taking all steps as may be necessarygive the other reasonable notice of, subject and, to the limitations extent permitted by such Governmental Entity, allow the other to attend and participate at any meeting with any Governmental Entity in this respect of any filings, investigation or other inquiry or proceeding relating thereto.
(c) Subject to the rights of Parent in Section 6.27.7, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In in furtherance and not in limitation of the foregoing, each Party, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination covenants of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth parties contained in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. FurtherSection 7.6, if any Actionadministrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatenedthreatened to be instituted) challenging the Merger or seeking to restrainany other transaction contemplated by this Agreement, prohibit or place conditions on the consummation each of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of and Parent shall cooperate in all or any portion of their respective businesses as presently conducted respects with each other and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their respective reasonable best efforts to defend contest and resist any such action or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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 TransactionsMerger or any other transactions contemplated hereby. Notwithstanding the foregoing or any other provision of this Agreement, including nothing in this Section 7.6 shall limit a party’s right to terminate this Agreement pursuant to Section 9.2(a) or (b) so long as such party has, prior to such termination, complied with its obligations under this Section 7.6.
(d) The parties will cooperate and use their respective reasonable efforts to identify and comply with any so-called “transaction-triggered” or “responsible property transfer” requirements under Environmental Laws that result from the Merger.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing).
Appears in 2 contracts
Sources: Merger Agreement (Baker Hughes Inc), Merger Agreement (Bj Services Co)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, Parent (and each of the Parent Subsidiaries) and the Company (and the Company Subsidiaries) parties hereto shall 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 in doing, all things necessary, proper or advisable under applicable Law Laws to consummate the Transactions, including Offer and to consummate and make effective the Merger, Merger and the other transactions contemplated by this Agreement as soon as practicable after the date hereof (and in any event by the Outside Date)practicable, including (i) the preparing and filing obtaining of all necessary actions or otherwise providingnonactions, waivers, consents, clearances, approvals and expirations or terminations of waiting periods, including the Specified Approvals and the Parent Approvals, from Governmental Entities and the preparing and making of all necessary registrations, filings and notices and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) satisfying the Tender Offer Conditions and the conditions to the consummation of the Merger set forth in consultation with 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 Party transactions contemplated by this Agreement and as promptly as reasonably practicable (v) the execution and advisable delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, 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 consents or approvals required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the Company, Parent and Merger Sub shall (i) promptly, but in no event later than ten (10) Business Days, after the date hereof, file any and all documentation to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as reasonably practicable (and in any event by the Outside Date) 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 Transactions, including the Merger, and (ii) taking all steps as may be necessary, subject to the limitations in this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation of the foregoing, each Party, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a required Notification and Report Form pursuant to Forms under the HSR Act with respect to the Transactions as promptly as reasonably practicableOffer, Merger and the other transactions contemplated by this Agreement, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary use their reasonable best efforts to cause the expiration or termination of the any applicable waiting period periods under the HSR Act Act, (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 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 any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including 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 to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Offer and the Merger so as to enable the Expiration Date and the Closing to occur as soon as reasonably practicable possible (and in any event no later than the End Date), including, without limitation (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the Outside Date) sale, divestiture or disposition of any assets or businesses of Parent or its Subsidiaries or affiliates or of the Company or its Subsidiaries and (y) make all other necessary filings under otherwise taking or committing to take any applicable Regulatory Law 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, in each case as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under required in order to avoid the entry of, or to effect the dissolution of, any Regulatory Laws. Notwithstanding anything to injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the contrary set forth in this Agreementeffect of preventing consummation of the Offer on the Expiration Date or the Closing, none of Parent, Merger Sub materially delaying the 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 their respective its Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, to become subject to, or consent to, or offer or agree to, take to or commit to otherwise take any action with respect to, any requirement, condition, limitation, understanding, agreement or order of a Governmental Entity to (A) sell, license, assign, transfer, divest, to hold separate or otherwise dispose of any assetsof, business or portion of to conduct, restrict, operate, invest or otherwise change the assets or business of the Company, the Surviving Company, Parent, Merger Sub Company or any Subsidiary of any of the foregoing or (B) impose any restrictionits affiliates, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any unless such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries only in the event that the Closing occurs.
(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 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. FurtherThe 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 furtherance and not in limitation of the covenants of the parties contained in this Section 6.6, if any Actionadministrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatenedthreatened to be instituted) challenging or seeking to restrainany transaction contemplated by this Agreement as violative of any Law, prohibit or place conditions on the consummation each of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of and Parent shall cooperate in all or any portion of their respective businesses as presently conducted respects with each other and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their respective reasonable best efforts to defend contest and resist any such action or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(b) Each of Parent Merger and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including transactions contemplated by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the CompanyAgreement.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing).
Appears in 2 contracts
Sources: Merger Agreement (Stealth Acquisition Corp.), Merger Agreement (Safenet Inc)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, Parent (each of the parties hereto shall, and the Parent Subsidiaries▇▇▇▇▇▇ Parties shall cause the other ▇▇▇▇▇▇ Group Entities to, use their commercially reasonable efforts (subject to, and in accordance with, applicable Law) and the Company (and the Company Subsidiaries) shall use 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, all things necessary, proper or advisable under applicable Law to consummate and make effective the Merger and the other transactions contemplated hereby, including (i) the obtaining of all necessary actions or nonactions, waivers, consents and 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 or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby and (iv) the execution and delivery of any additional instruments reasonably necessary to consummate the Transactionstransactions contemplated hereby. In addition, including Parent shall use its reasonable best efforts to obtain the MergerFunding in accordance with the Funding Commitments.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the ▇▇▇▇▇▇ Parties and the Parent Parties shall (i) if required, as soon promptly as practicable after the date hereof hereof, make their respective filings and thereafter make any other required submissions under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, 15 U.S.C. §18a, as amended (the “HSR Act”), (ii) use commercially reasonable efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers or approvals are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely seeking all such consents, permits, authorizations or approvals, (iii) use commercially reasonable efforts to take, or to cause to be taken, all other actions and to do, or to cause to be done, all other things necessary, proper or advisable to consummate and make effective the Merger and the other transactions contemplated hereby, including taking all such further action as reasonably 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 or foreign antitrust enforcement authorities or competition authorities, other Governmental Entities in connection with the HSR Act, or other state or federal regulatory authorities of any other nation or other jurisdiction or any other person may assert under Regulatory Law (as defined herein) with respect to the Merger and the other transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Merger so as to enable the Closing to occur as soon as reasonably possible (and in any event by no later than the Outside End Date), and (iv) subject to applicable legal limitations and the instructions of any Governmental Entity, use commercially reasonable efforts to keep each other apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement, including (i) preparing and filing or otherwise providing, in consultation with to the extent permitted by Law promptly furnishing the other Party and as promptly as reasonably practicable and advisable after the date hereof, all documentation to effect all necessary applications, notices, petitions, filings and with copies of notices or other documents and to obtain as promptly as reasonably practicable (and in any event communications received by the Outside Date) all waiting period expirations ▇▇▇▇▇▇ Parties or terminationsany of their Subsidiaries or the Parent Parties, consentsas the case may be, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity with respect thereto.
(c) Subject to the rights of the Parent Parties in order to consummate the Transactions, including the MergerSection 5.11, and (ii) taking all steps as may be necessary, subject to the limitations in this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation of the foregoing, each Party, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination covenants of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth parties contained in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. FurtherSection 5.6, if any Actionadministrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatenedthreatened to be instituted) challenging the Merger or seeking to restrainany other transaction contemplated by this Agreement, prohibit or place conditions on the consummation each of the Transactions, including the Merger, ▇▇▇▇▇▇ Parties or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of Parent Parties shall cooperate in all or any portion of their respective businesses as presently conducted respects with each other and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their respective commercially reasonable best efforts to defend contest and resist any such action or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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 TransactionsMerger or any other transactions contemplated hereby. Notwithstanding the foregoing or any other provision of this Agreement, including the Mergernothing in this Section 5.6 shall limit a party’s right to terminate this Agreement pursuant to Section 7.1(b)(i) or (ii) so long as such party has, prior to such termination, complied with its obligations under this Section 5.6.
(bd) Each of The Parent Parties and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company ▇▇▇▇▇▇ Parties may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) 5.6 as “Outside Regulatory Counsel Only Material.” which such material Such materials and the information contained therein shall be given only to the outside antitrust regulatory 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 Parent on the one hand Parties or the Company on ▇▇▇▇▇▇ Parties as the othercase may be) or its legal counsel. Notwithstanding anything to the contrary in this Agreement Section 5.6, materials provided to the contraryother party or its outside counsel may be redacted to remove references concerning the valuation of the Common Units or the business of the ▇▇▇▇▇▇ Group Entities. For purposes of this Agreement, Parent shall be entitled to lead the strategy “Regulatory Law” means any and course of action for seeking all state, federal and obtaining all waiting period expirations or terminationsforeign statutes, consentsrules, clearances, waivers, licensesregulations, orders, registrationsdecrees, approvalsadministrative and judicial doctrines and other Laws requiring notice to, permits filings with, or the consent or approval of, any Governmental Entity, or that otherwise may cause any restriction, in connection with the Merger and authorizations for the Transactions under the HSR Act or any other Regulatory Lawtransactions contemplated thereby, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under 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 any other applicable Regulatory Law and 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 decision to enter into, and the contents of, Law governing any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each material operations or assets of the Company Partnership and its Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (iiiii) subject to any Law with the occurrence purpose of protecting the Closing)national security or the national economy of any nation.
Appears in 2 contracts
Sources: Merger Agreement (Hiland Holdings GP, LP), Merger Agreement (Hiland Partners, LP)
Efforts. (ai) Subject to the terms and conditions Each of this AgreementCapital One, Synovus, Parent and Seller shall (and the Capital One, Synovus, Parent Subsidiariesand Seller shall cause each of their respective Affiliates to) and the Company (and the Company Subsidiaries) shall use its reasonable best efforts to takeconsummate the transactions contemplated hereby and, or 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 takensatisfied and, all actions in the case of Parent, Seller and to dotheir respective Affiliates, or cause the conditions set forth in the Merger Agreement to be done, all things necessary, proper satisfied (it being understood that the foregoing shall not prohibit Parent or advisable under applicable Law to consummate the Transactions, including the Merger, as soon as practicable after the date hereof (and in Seller from exercising any event by the Outside Date), including (i) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably 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 reasonably practicable (and in any event by the Outside Date) 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 Transactions, including the Merger, and (ii) taking all steps as may be necessary, subject right pursuant to the limitations Merger Agreement to terminate the Merger Agreement in this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvalsaccordance with its terms). In furtherance and not in limitation Without limiting the generality of the foregoing, Synovus shall (and shall cause its Affiliates to) and each Partyof Capital One, as applicable, agrees Parent and the Seller shall (and shall cause each of their respective Affiliates to) use their respective reasonable best efforts to (xA) makeas promptly as practicable obtain all Synovus Required Approvals, Capital One Required Approvals and Seller Required Approvals, (B) on or cause before April 19, 2017, make and not withdraw (without the Seller’s and Capital One’s consent, in the case of Synovus, and without Capital One’s and Synovus’s consent, in the case of Seller or Parent, and without the Seller’s and Synovus’s consent, in the case of Capital One), all registrations and filings with any Governmental Authority or other persons necessary or advisable in connection with the consummation of the transactions contemplated hereby, including the filings required of the parties hereto or their “ultimate parent entities” or “ultimate controlling persons” under any applicable Laws, and promptly make any further filings pursuant thereto that may be necessary or advisable (such registrations and filings, in the case of the Synovus Required Approvals, the “Synovus Required Filings”), (C) defend all lawsuits or other legal, regulatory, administrative or other proceedings to be madewhich it or any of its Affiliates is a party challenging or affecting this Agreement or the consummation of the transactions contemplated by this Agreement, an appropriate filing including those described on Schedule 5.1(a)(i), in each case until the issuance of a Notification and Report Form pursuant to the HSR Act 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 Transactions as promptly as reasonably practicableability 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 in (E) seek to resolve any event within fifteen (15) Business Days after the execution of objection or assertion by any Governmental Authority challenging this Agreement (unless or the transactions contemplated hereby other than, in the case of Synovus, in respect of a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory LawsSynovus Required Approval. Notwithstanding anything to the contrary set forth in this Agreement, none Synovus may withdraw any registration or filing made pursuant to this Section 5.1(a)(i) if, 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 ParentSynovus setting forth the content of the applicable communication with the relevant Governmental Authority, Merger Sub if such communication was oral, or any a copy of their respective Subsidiaries shall be required tosuch communication if it was written, and (y) Synovus consults with Capital One and Parent before such withdrawal.
(ii) In furtherance of the Company may notobligations set forth in Section 5.1(a)(i), and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (Bsubject to Section 5.1(a)(v), such restriction, requirement Synovus shall promptly take (and shall cause each of its Affiliates to take) any and all actions necessary or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub advisable to obtain all Synovus Required Approvals and to avoid or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent eliminate each and every impediment to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactionstransactions contemplated hereby in connection with obtaining the Synovus Required Approvals, in each case so as to enable the parties to consummate the transactions contemplated by this Agreement, and (B) the Seller shall make, subject to the condition that the transactions contemplated hereby or thereby actually occur, any undertakings (including the Merger, undertakings to accept operational restrictions or the ownership limitations or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation make sales or other meansdispositions, any objection toprovided that such restrictions, limitations, sales or Actions challenging, other dispositions are conditioned upon the consummation of the Transactionstransactions contemplated hereby) as are requested by Synovus and are required to obtain such Synovus Required Approvals or to avoid the entry of, and or to effect the dissolution of or vacate or lift, any decrees, judgments, injunctions or orders that would otherwise have vacated, lifted, reversed the effect of preventing or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts materially delaying the consummation of the Transactionstransactions contemplated by this Agreement. None of the parties hereto shall, including directly or indirectly, through one or more of their respective Affiliates, take any action (in the Merger.
(b) Each case of Parent and the Company shallSeller, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions other than exercising any right under the HSR Act or any other Regulatory Law, (i) cooperate Merger Agreement to terminate the Merger Agreement in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult accordance with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”its terms), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow prevent or cause a material delay in the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views satisfaction of the Company.
(c) In connection with and without limiting conditions contained in Article VI or the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each consummation of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (excepttransactions contemplated hereby or, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for Seller, by Parent or (ii) subject to the occurrence of the Closing)Merger Agreement.
Appears in 2 contracts
Sources: Framework Agreement (Cabela's Credit Card Master Note Trust), Framework Agreement (Synovus Financial Corp)
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, Parent (and the Parent Subsidiariesi) and the Company (and the Company Subsidiaries) shall use 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, all things necessary, proper or advisable under applicable Law or otherwise to consummate the Transactions, including and make effective the Merger, the Offer and the other transactions contemplated by this Agreement as soon promptly as practicable; (ii) 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 date hereof execution of this Agreement; (iii) (I) obtain as promptly as practicable (A) from any Governmental Entity any and all consents, notices, licenses, permits, waivers, approvals, authorizations, orders, registrations, rulings and clearances 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 by 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), including 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 (iII) preparing prepare and filing or otherwise providing, in consultation with the other Party and file as promptly as reasonably practicable and advisable after the date hereof, all documentation to effect all necessary applications, notices, petitions, filings filings, ruling requests, and other documents and 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 (and in any event by after the Outside Date) date hereof, make 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 Transactions, including the Mergerfilings, and (ii) taking all steps as may be necessarythereafter make any other required submissions, subject to the limitations and pay any fees due in this Section 6.2connection therewith, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation of the foregoing, each Party, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to this Agreement, the Transactions as promptly as reasonably practicableMerger and the Offer required under any other applicable Law, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials provided that may be requested pursuant all filing fees related to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event filings by the Outside Date) and (y) make all other necessary filings parties hereto under any applicable Regulatory Law as promptly as reasonably practicableCompetition Laws, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Lawsif any, shall borne by Parent. Notwithstanding anything to the contrary set forth 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) Notwithstanding anything in this Agreementthe Agreement to the contrary, it is expressly understood and 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 following: (A) sell or otherwise dispose of, or hold separate or agree to sell or otherwise dispose of, 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 Subsidiaries shall be required toAffiliates, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent toincluding Guarantor, or offer (2) presently or agree to, take or commit hereafter sought to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, be acquired by Parent, Merger Sub or any Subsidiary of any of the foregoing or their respective Affiliates, including Guarantor; (B) impose terminate any restrictionexisting 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, requirement whether or limitation on not they limit or modify Parent’s, Merger Sub’s, their respective Affiliates’ (including Guarantor’s), or the operation of Company’s or any Company Subsidiary’s assets or ability to conduct the business of one or portion 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, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries; (E) shall use their reasonable best efforts to defend or contestenter into agreements, including with the relevant Governmental Entity, giving effect to the foregoing clauses (A) through litigation (D); or (F) litigate or contest any action, lawsuit or other meanslegal, any objection to, regulatory or Actions challenging, the consummation of the Transactions, and to have vacated, lifted, reversed other Proceeding 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, including the Merger.
(bc) Each of Parent and the Company shallagrees that, between the date of this Agreement and the Effective Time, each of Parent the Company shall not (and the Company shall cause the Company Subsidiaries not to) (i) enter into or consummate any agreements or arrangements for an acquisition (via stock purchase, merger, consolidation, purchase of assets or otherwise) of any ownership interest in, or assets of, any Person, if such ownership interest or assets would reasonably be expected to result in any material delay in obtaining, or the failure to obtain, any regulatory approvals required in connection with the transactions contemplated hereby (including the Merger and without 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 efforts referenced generality of anything contained in this Section 6.2(a) to obtain all waiting period expirations or terminations6.4, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, each party hereto shall (i) cooperate in all respectsgive the other parties hereto prompt notice of the making or commencement of any request, including inquiry, investigation, action or Proceeding by furnishing or before any Governmental Entity with respect to the other as promptly as practicable information and assistance as Merger, the other may reasonably request, and consult with each other in connection with Offer or any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Partytransactions contemplated by this Agreement, (ii) promptly inform keep the other Party 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 fromparty, or given by such Party toany of its Subsidiaries, from or to any Governmental Entity with respect to the Merger, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) Offer or any other Governmental Entitytransactions contemplated by this Agreement (excluding notification and report forms filed under the HSR Act, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication if any); provided that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems reasonably and in good ▇▇▇▇▇ ▇▇▇▇▇ advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Antitrust Counsel Only Material.” which such 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 on the one hand or the Company on Company, as the othercase may be) or its legal counsel. Notwithstanding anything in this Agreement Each party hereto will consult and cooperate with the other parties hereto with respect to and provide any necessary information and assistance as the contraryother parties hereto may reasonably request with respect to all notices, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations submissions, or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) 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 hereto to delay review and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date discuss in advance and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In other parties hereto in connection with and without limiting any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with the foregoingMerger, the Offer or any of the other transactions contemplated by this Agreement, provided, however, the final determination as to the appropriate course of action shall be made by Parent. 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 event that Parent requests matters contemplated by Section 6.11, in connection with or related to the Company to do soMerger, the Company shall 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 access to and be consulted in connection with any notices document, opinion or proposal made or submitted to third parties required under Contractsany Governmental Entity in connection with such request, and the Company shall useinquiry, and cause each investigation, action or other Proceeding. Each of the Company Subsidiaries and Parent shall approve the content of any presentations, white papers or other written materials to use, its reasonable best efforts to obtain any third party consents be submitted to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none Governmental Entity in advance of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing)submission.
Appears in 2 contracts
Sources: Merger Agreement (WhiteHawk Income Corp), Merger Agreement (PHX Minerals Inc.)
Efforts. (a) Subject to Upon the terms and subject to the conditions set forth in this Agreement (including Section 5.5(b)), each of this Agreement, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall parties agrees to use 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 party in doing, all things that are necessary, proper or advisable under this Agreement and applicable Law Laws to consummate and make effective the TransactionsMerger and the other transactions contemplated by this Agreement as promptly as practicable, including using commercially reasonable efforts to accomplish the Merger, as soon as practicable after the date hereof (and in any event by the Outside Date), including following: (i) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably practicable and advisable after the date hereof, obtain all documentation to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as reasonably practicable (and in any event by the Outside Date) all waiting period expirations or terminations, required consents, clearancesapprovals or waivers from third parties, waivers, licenses, orders, registrations, approvals, permits and authorizations including under any Material Contract as may be necessary or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate the TransactionsMerger and the other transactions contemplated hereby (and Company and Parent shall cooperate in seeking any other consents, including approvals or waivers from third parties under any other Contract if the Mergerparties determine that doing so is necessary or desirable in connection with the consummation of the Merger and the other transactions contemplated by this Agreement), and (ii) taking obtain all required actions or nonactions, waivers, consents, approvals, orders and authorizations from Governmental Entities, make all necessary registrations, declarations and filings and take all steps as may be necessarynecessary to obtain an approval or waiver from, subject or to avoid any Action by, any Governmental Entity, including filings under the HSR Act with the United States Federal Trade Commission and 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 limitations in this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation making of the foregoing, each Party, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to Act, the Transactions as promptly as reasonably practicable, and in any event parties shall make such filing within fifteen (15) 10 Business Days after of the execution of this Agreement (date hereof, unless a later date is mutually otherwise agreed between to by the Partiesparties), and to supply as promptly as reasonably practicable and advisable (iii) resist, contest or defend any additional information and documentary materials that may be requested pursuant to Action (including administrative or judicial Actions) challenging the HSR Act and to take all other actions necessary to cause Merger or the expiration or termination completion of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Actiontransactions contemplated hereby, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, order (whether temporary, preliminary or permanent, ) that is in effect and that prohibitscould restrict, prevents prevent or restricts prohibit consummation of the Transactionstransactions contemplated hereby, including by pursuing avenues of administrative and judicial appeal, and (iv) execute and deliver any additional instruments necessary to consummate the Merger.
(b) transactions contemplated hereby and fully to carry out the purposes of this Agreement without the prior written consent of the other party. Each of Parent the parties hereto shall furnish to each other party such necessary information and the Company shall, reasonable assistance as such other party may reasonably request in connection with and without limiting the efforts referenced in Section 6.2(a) foregoing. Subject to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing applicable Law relating to the other as promptly as practicable information exchange of information, Parent and assistance as Company shall have the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity right to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Personadvance, and to the extent not prohibited practicable, each shall consult with the other in connection with, all of the information relating to Parent or Company, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any third party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement. In exercising the DOJforegoing rights, each of Parent and Company shall act reasonably and as promptly as practicable. Subject to applicable Law and the FTC instructions of any Governmental Entity, Company and Parent shall keep each other reasonably apprised of the status of matters relating to the completion of the transactions contemplated hereby, including promptly furnishing the other with copies of notices or other applicable Governmental Entity written communications received by Company or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company as the case may be, or any of their respective Subsidiaries, (B) as necessary from any Governmental Entity and/or third party with respect to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; providedsuch transactions, furtherand, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the extent practicable under the circumstances, shall consult with the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained party in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter intoof, and provide the contents ofother party and its counsel with the opportunity to attend and participate in, any agreement (including a timing agreement) meeting with any Governmental Entity in respect of any filing, investigation or other inquiry in connection with the transactions contemplated hereby at which substantive matters are to delay be discussed. Notwithstanding the foregoing, Parent will determine strategy, lead all proceedings and not coordinate all activities with respect to consummate the Transactionsseeking any actions, providedconsents, approvals or waivers of any Governmental Entity or third party as contemplated hereby, and Company and its Subsidiaries will use its commercially reasonable efforts to take such actions as reasonably requested by Parent in connection with obtaining any such actions, consents, approvals or waivers; provided that Parent will in good faith consider any views or input provided by Company with respect to such matters.
(xb) at the time of entry into any timing Parent shall, and shall cause its Subsidiaries to, propose, negotiate, offer to commit and effect (and if such offer is accepted, commit to and effect), by consent decree, hold separate order, or similar other agreement, the term thereof would not reasonably be expected to extend beyond sale, divestiture or disposition of such time assets or businesses of Parent or any of its Subsidiaries, or effective as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do soEffective Time, the Company shall give Surviving Corporation or its Subsidiaries, or otherwise offer to take or offer to commit to take any notices action (including any action that limits its freedom of action, ownership or control with respect to, or its ability to third parties required under Contractsretain or hold, and the Company shall use, and cause each any of the Company Subsidiaries to usebusinesses, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactionsassets, including the Merger. Notwithstanding anything to the contrary hereinproduct lines, none properties or services of Parent, the Company Surviving Corporation, or any of their respective Subsidiaries) which it is lawfully capable of taking and if the offer is accepted, take or commit to take such action, in each case as may be required so as to enable the Closing to occur as promptly as practicable (any of the foregoing, a “Divestiture Action”). Notwithstanding the foregoing or anything contained in this Agreement that may be to the contrary, (1) neither Parent nor Company shall be required to take any Divestiture Action that is not conditioned upon consummation of the Merger, (2) Company shall not agree to take any Divestiture Action without the consent of Parent, (3) none of Parent or any of its Subsidiaries shall be required to pay take or accept (or commit to take or accept) any consent action, condition, restriction, obligation or requirement (each of the foregoing, for the purposes of this Section, an “action”) in order to obtain any approval, exemption or other similar fee, payment authorization of a Governmental Entity involving any business or consideration, make any other concession asset of Parent or provide any additional security its Subsidiaries that would otherwise be required by this Section 5.5 unless there is no action (including a guarantyDivestiture Action) that would permit such approval, exemption or other authorization of a Governmental Entity to be obtained that involves solely businesses or assets of Company and its Subsidiaries and to which Parent is required by this Section 5.5, or is otherwise willing in Parent’s sole discretion, to agree and (4) Parent shall not be required to take (pursuant to this Section 5.5 or any other provision of this Agreement) any action (including a Divestiture Action) to the extent such action (including a Divestiture Action), individually or amend or modify any Contract, to obtain such third party consents (except, in the case aggregate with all other actions (including Divestiture Actions), would reasonably be expected to result in a Substantial Detriment. “Substantial Detriment” means (i) any material limitation, restriction or prohibition on the ability of Parent or any of its Subsidiaries effectively to acquire, hold or exercise full rights of ownership (including with respect to voting) of the CompanyShares or shares of the Surviving Corporation to be acquired or owned pursuant to the Merger or the assets of Company and its Subsidiaries, if requested (ii) a loss by Parent and either its Subsidiaries of a material benefit or material benefits (iincluding synergies), after taking into account the adverse effect of the proposed actions on Parent and its Subsidiaries (including, for these purposes, the Surviving Corporation and its Subsidiaries), arising from or relating to the Merger and the other transactions contemplated by this Agreement, (iii) reimbursed an impact that is adverse in a material manner to the assets, business, results of operation or indemnified financial condition of Parent and its Subsidiaries, assuming for by purposes of this determination that Parent and its Subsidiaries are of equivalent size to the Surviving Corporation and its Subsidiaries, taken as a whole or (iiiv) subject an impact that is adverse in a material manner to the occurrence assets, business, results of operation or financial condition of the ClosingSurviving Corporation and its Subsidiaries, taken as a whole).
Appears in 2 contracts
Sources: Merger Agreement (PSS World Medical Inc), Merger Agreement (McKesson Corp)
Efforts. (a) Subject to the terms and conditions of this Agreement, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate the Transactions, including the Merger, as soon as practicable after the date hereof (and in any event by the Outside Date), including (i) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably 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 reasonably practicable (and in any event by the Outside Date) 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 each party and/or any Governmental Entity in order to consummate the Transactions, including the Merger, and (ii) taking all steps as may be necessary, subject to the limitations in this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation of the foregoing, each Party, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) hereto shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challengingensure that the conditions set forth in Article VII and Annex I are satisfied and to consummate and make effective the transactions contemplated by the Offer, the consummation of the Transactions, Merger and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is this Agreement as promptly as practicable in effect and that prohibits, prevents or restricts consummation of the Transactions, including the Mergeraccordance with this Agreement.
(b) Each of Parent The Company agrees to provide, and the Company shallwill cause its subsidiaries and its and their respective officers, employees and advisers to provide, all reasonable cooperation in connection with the arrangement of any financing contemplated by the Commitment Letters to be consummated contemporaneous with the Closing in respect of the 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 without limiting similar documents. The Company will also provide commercially reasonable assistance to the efforts referenced Purchaser in Section 6.2(a) to obtain all waiting period expirations connection with the execution and delivery of any underwriting or terminationsplacement agreements, consentspledge and security documents, clearancesother definitive financing documents, waiversor other requested certificates or documents, licensesas may be requested by Parent or Purchaser, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, except (i) cooperate as specifically provided in all respects, including by furnishing to Section 6.16 and (ii) the other Company will not be responsible for any indemnities or expense reimbursements in connection therewith until the Offer closes.
(c) The Company and the Purchaser will as promptly as practicable information file with the Federal Trade Commission and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), notification and report forms required for the Federal Trade Commission (the “FTC”) or transactions contemplated hereby and any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given supplemental information that may be reasonably requested in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided therewith pursuant to the foregoing clauses HSR Act, which notification and report forms and supplemental information will comply in all material respects with the requirements of the HSR Act. Purchaser shall pay all filing fees required with respect to the notification, report and other requirements of the HSR Act.
(id) - (iii) may be redacted (A) If at any time prior to remove references concerning the valuation of Parent, Effective Time any event or circumstance relating to either the Company or Parent or the Purchaser or any of their respective Subsidiariessubsidiaries, should be discovered by the Company or Parent, as the case may be, and which should be set forth in an amendment to the Offer Documents or Schedule 14D-9, the discovering parties will promptly inform the other party of such event or circumstance. If at any time after the Effective Time any further action is necessary or desirable to carry out the purposes of this Agreement, including the execution of additional instruments, the proper officers and directors of each party to this Agreement shall take all such necessary action.
(Be) as Each of the parties agrees to cooperate with each other in taking, or causing to be taken, all actions necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concernsdelist the Shares from the NASDAQ National Market; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such material and the information contained therein delisting 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 effective until after the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counselEffective Time. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the The parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing).also
Appears in 2 contracts
Sources: Merger Agreement (Rsa Acquisition Corp), Merger Agreement (American Safety Razor Co)
Efforts. (a) Subject to the terms and conditions of this Agreement, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall each party will use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law laws and regulations to consummate the Transactions, including Merger and the Merger, other transactions contemplated by this Agreement as soon as practicable after the date hereof (and in any event by the Outside Date)of this Agreement, including including, without limitation, (i) preparing and filing or otherwise providingfiling, in consultation with the other Party party and as promptly as reasonably practicable and advisable after the date hereofof this Agreement, all documentation to effect all necessary applications, notices, petitions, filings filings, and other documents and to obtain as promptly as reasonably practicable (and in any event by the Outside Date) all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits permits, and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity Entity, including but not limited to, FINRA, the NFA, the Financial Conduct Authority in the UK, the European Commission, Central Bank of Ireland, and the Japanese Financial Services Agency in order to consummate the Transactions, including Merger or any of the Merger, other transactions contemplated by this Agreement and (ii) taking all steps as may be necessary, subject to the limitations in this Section 6.2, necessary to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation of the foregoing, each Party, as applicable, party hereto agrees to (xw) make, or cause to be made, make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions transactions contemplated hereby as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution of this Agreement Agreement, (unless a later date is mutually agreed between the Parties)x) make any filings in connection with any Regulatory Approvals as promptly as practicable, and to (y) supply as promptly as reasonably practicable and advisable any additional information and documentary materials material that may be requested pursuant to the HSR Act or by any Governmental Entity under any Regulatory Law, and to (z) take all other actions necessary to cause the expiration or termination of the applicable waiting period periods under the HSR Act or obtain all Regulatory Approvals as soon as reasonably practicable (and in any event by practicable. For the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicableavoidance of doubt, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries Parent shall be required to, and responsible for the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries payment of all or filing fees payable to any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the MergerGovernmental Entity.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a7.5(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits permits, and authorizations for the Transactions transactions contemplated by this Agreement under the HSR Act or any other Regulatory LawLaw (as defined below), (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, respects and consult with each other in connection with any communication, filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party 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 reasonably considering in good faith comments of the other Party, documents submitted therewith); (ii) promptly inform the other Party party of any communication received by such Party party from, or given by such Party party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or ), any other Governmental EntityEntity or, in connection with any proceeding by a private party, with any other person, including by promptly providing copies to the other Party party of any such written communications, and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions transactions contemplated by this Agreement; and (iii) permit the other Party party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, substantive telephone call or other meeting call, or conference (whether by video or otherwise) with, with the DOJ, the FTC FTC, or any such other Governmental Entity or, in connection with any proceeding by a private party, with any or other Personperson, and to the extent not prohibited permitted by the DOJ, the FTC FTC, or any other applicable Governmental Entity or other Person, give the other Party party and/or its counsel the reasonable opportunity to attend and participate thereat; in such meetings, substantive telephone calls and conferences, provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (Ax) to remove references concerning the valuation of Parent, the Company or any of their respective Subsidiaries, (By) as necessary to comply with contractual arrangements arrangements, and (Cz) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of . Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material to be provided to the other under this Section 6.2(b7.5(b) as “Outside Antitrust Counsel Only Material.” which such 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 on the one hand or the Company on Company, as the othercase may be) or its legal counsel. Notwithstanding anything in For purposes of this Agreement to Agreement, “Regulatory Law” means the contrary▇▇▇▇▇▇▇ Act, Parent shall be entitled to lead as amended, the strategy ▇▇▇▇▇▇▇ Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, the EU Merger Regulation and course of action for seeking and obtaining all waiting period expirations other national, federal or terminationsstate, consentsdomestic or foreign, clearancesif any, waiversstatutes, licensesrules, regulations, orders, registrationsdecrees, approvalsadministrative and judicial doctrines and other laws that are designed or intended to prohibit, permits restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or affecting competition or market conditions through merger, acquisition or other transaction and authorizations for the Transactions under the HSR Act laws relating to change of control or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with approvals required from any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views for completion of the Companytransactions contemplated by this Agreement.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing).
Appears in 2 contracts
Sources: Merger Agreement (Franklin Resources Inc), Merger Agreement (Legg Mason, Inc.)
Efforts. (a) Subject to the terms and conditions of this AgreementParent, Parent (and the Parent Subsidiaries) Guarantor, Merger Sub and the Company (shall, and the Company Subsidiaries) shall cause their respective Affiliates to, use their respective reasonable best efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Law Laws to consummate and make effective the Transactions, including the Merger, Transactions as soon promptly as practicable after the date hereof (and in any event by the Outside Date)practicable, including (i) preparing and filing all forms, registrations and notifications to or otherwise providing, in consultation with the other Party and as promptly as reasonably 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 reasonably practicable (and in any event by the Outside Date) all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations necessary or advisable Governmental Authority required to be obtained from any third party and/or any Governmental Entity in order filed to consummate the Transactions, (ii) using reasonable best efforts to satisfy the conditions to consummating the Transactions, (iii) using reasonable best efforts to obtain (and to cooperate with each other in obtaining) any consent, authorization, expiration or termination of a waiting period, permit, Order or approval of, waiver or any exemption by, any Governmental Authority (including furnishing all information and documentary material required under the MergerHSR Act) required to be obtained or made by (x) Parent, Guarantor, Merger Sub, or their respective Affiliates or (y) the Company or any of its Subsidiaries in connection with the Transactions or the taking of any action contemplated by this Agreement, and (iiiv) taking 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 steps required consents, authorizations, Orders or approvals of, or any 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 be reasonably request with respect to (and, in the case of correspondence, provide the other parties (or their counsel) with copies of) all notices, submissions or filings made by or on behalf of such party or any of its Affiliates with any Governmental Authority 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, and 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 communication or 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 unless it consults with the other parties in advance and, to the extent not prohibited by such Governmental Authority, gives the other parties the opportunity to attend and participate thereat. Notwithstanding the foregoing, Parent and the Company may, as each deems advisable and necessary, subject reasonably designate any competitively sensitive material provided to the limitations other under this Section 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 6.26.6, materials provided pursuant to obtain this Section 6.6 may be redacted (i) to remove references concerning the valuation of the Company and the Transactions, (ii) as necessary to comply with contractual arrangements and (iii) as necessary to address reasonable 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 expirations or terminationsreview period, consents(ii) enter into any timing agreement with any Governmental Authorities, clearancesor (iii) pull and refile any filing under the HSR Act without the other parties’ prior written consent. Notwithstanding anything in this Agreement to the contrary, waiversParent will control the ultimate strategy and timing for securing approvals and expiration of relevant waiting periods under the Competition Laws, licensestaking into account in good faith any comments of the Company or its Representatives relating to such strategy.
(d) In connection with the efforts referenced in Section 6.6(a) and (c) so as to permit the Closing to occur as promptly as practicable and in any event before the Termination Date, registrationsParent, permitsGuarantor, authorizationsMerger Sub and the Company shall, orders and approvalsshall cause their respective Affiliates to (subject to it being conditioned on the consummation of the Transactions), propose, negotiate, commit to, effect and agree to, by consent decree, hold separate order, or otherwise, the sale, divestiture, 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 agreement or action is conditioned on the consummation of the Transactions. Without limiting the foregoing, in no event will the Company (and the Company will not permit any of its Affiliates to) propose, negotiate, effect or agree to any such actions without the prior written consent of Parent (not to be unreasonably withheld, conditioned or delayed).
(e) In furtherance and not in limitation of the foregoing, each Party, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination covenants of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth parties contained in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. FurtherSection 6.6, if any Actionadministrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatenedthreatened to be instituted) challenging the Transactions or seeking to restrainany other transaction contemplated by this Agreement as in violation of any Competition Law, prohibit or place conditions on the consummation at Parent’s sole option, each of the TransactionsCompany, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted Guarantor and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend contest and resist any such action or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(bf) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement herein to the contrary, Parent shall be entitled bear the cost of any filing fee payable to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any a Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) Authority in connection with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Companyfilings made under this Section 6.6.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing).
Appears in 2 contracts
Sources: Merger Agreement (SpartanNash Co), Merger Agreement (SpartanNash Co)
Efforts. (a) Subject to the terms and conditions of this Agreement, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) Parent shall 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 reasonably necessary under applicable Applicable Law to consummate the Transactions, including the Merger, as soon as practicable after the date hereof (and in any event by the Outside Date), including (i) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably practicable and advisable after the date hereof, all documentation to effect obtaining of all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as reasonably practicable (and in any event by the Outside Date) all waiting period expirations or terminations, consents, clearancesactions, waivers, licensesconsents and approvals from Governmental Authorities, orders, registrations, approvals, permits and authorizations necessary the expiry or advisable to be obtained from early termination of any third party and/or any Governmental Entity in order to consummate the Transactions, including the Mergerapplicable waiting periods, and the making of all necessary registrations and filings (iiincluding filings with Governmental Authorities, if any) and the taking all of such reasonable steps as may be necessary, subject to the limitations in this Section 6.2, reasonably necessary to obtain all such waiting period expirations an approval or terminationswaiver from, consentsor to avoid an action or Proceeding by, clearancesany Governmental Authorities, waivers(ii) the delivery of required notices to, licensesand the obtaining of required consents or waivers from, registrations, permits, authorizations, orders Third Parties and approvals. (iii) the execution and delivery of any additional instruments reasonably necessary to consummate the Merger and to fully carry out the purposes of this Agreement.
(b) In furtherance and not in limitation of the foregoingundertakings pursuant to this Section 6.09, each Partyof Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act, and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Merger, as applicable, agrees to promptly as practicable (xbut in no event later than ten (10) make, Business Days from the date of this Agreement for the filing of any notification and report forms and related material required under the HSR Act except by mutual consent confirmed in writing) and (ii) provide or cause to be made, an appropriate filing of a Notification provided as promptly as practicable any information and Report Form pursuant documentary material that may be requested by the DOJ or FTC under the HSR Act.
(c) Subject to Applicable Law relating to the HSR Act exchange of information, the Company and Parent and their respective counsel shall (i) 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 contemplated hereby, (ii) promptly inform each other of any material communication (or other material correspondence or memoranda) received from, or given to, any Governmental Authority in connection with the transactions contemplated hereby and (iii) promptly 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 Transactions as promptly as reasonably transactions contemplated hereby. The Company and Parent shall, to the extent practicable, provide the other party and its counsel with advance notice of and the opportunity to participate in any event within fifteen (15) Business Days after material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Lawstransactions contemplated hereby. Notwithstanding anything to the contrary set forth in this AgreementSection 6.09, none materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, the Company and the Company may Subsidiaries.
(d) 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, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or (i) offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate separate, license, cause a Third Party to acquire, or otherwise dispose of, any Company Subsidiary, operations, divisions, businesses, product lines, customers or assets of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restrictionits Affiliates, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event contemporaneously or after the Closing occurs. Furtherand regardless as to whether a Third Party purchaser must be identified or approved prior to the Closing (a “Divestiture”), if any Action(ii) agree or otherwise commit to undertake a Divestiture, including any proceeding by a private party(iii) take or commit to take such other actions that may limit Parent’s, is instituted (its Affiliates’ the Company’s or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection ’ freedom of action with respect to, or Actions challengingits ability to retain, the consummation 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 Transactionsforegoing. Notwithstanding anything to the contrary in this Agreement, and Parent shall not be required to have vacatedoffer, liftednegotiate, reversed agree to, effect, commit to, or overturned undertake any decreeDivestiture or Restraint, judgmentor enter into any Order, injunction consent decree or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation agreement to effectuate any of the Transactions, including foregoing provisions of this Section 6.09 if doing so will cause a material and adverse effect on Parent or the MergerCompany.
(be) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, use its reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all things reasonably necessary, proper or advisable to obtain the amendments and consents listed on Section 6.09(e) of the Company Disclosure Schedules (it being understood and agreed that the failure to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed foregoing shall not in itself be a condition to or indemnified for by Parent otherwise affect Parent’s or (ii) subject to the occurrence of the ClosingMerger Sub’s obligations 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 Agreement, Parent (and the Parent Subsidiaries) and including Section 7.1(i), each of the Company (and the Company Subsidiaries) Parent shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate and make effective the Transactions, including Merger and the Merger, other transactions contemplated by this Agreement as soon promptly as practicable after the date hereof (and in any event by the Outside Date)of this Agreement, including (i) preparing and filing or otherwise providingfiling, in consultation with the other Party and Parties, as promptly as reasonably practicable and advisable after the date hereof, with any Governmental Authority or other Third Party all documentation to effect all necessary applicationsnecessary, proper or advisable filings, notices, petitions, filings statements, registrations, submissions of information, applications and other documents and (ii) obtaining and maintaining (and cooperating with each other to obtain as promptly as reasonably practicable (and in any event by the Outside Dateor maintain) all waiting period expirations or terminationsapprovals, consents, clearances, waivers, licenses, orders, registrations, approvalspermits, permits authorizations and authorizations necessary or advisable other confirmations required to be obtained from any third party and/or any Governmental Entity Authority or other Third Party, in order each case, that are necessary, proper or advisable to consummate and make effective the Transactions, Merger and the other transactions contemplated by this Agreement (including the Merger, and Station Divestitures) (ii) taking all steps as may be necessary, subject to the limitations in this Section 6.2, to obtain all whether or not such waiting period expirations or terminationsapprovals, consents, clearances, waivers, licenses, registrations, permits, authorizationsauthorizations and other confirmations are conditions to the consummation of the Merger pursuant to Article VIII); provided, orders 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 the Company or its Subsidiaries shall pay or agree to pay) any fee, penalty or other consideration to any 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 approvalsacknowledge that, except as provided in Section 8.1(b), receipt of any such any approval, consent, registration, permit, authorization or other confirmation is not a condition to Closing.
(b) To the extent mutually agreed by the Parties, the Company shall and shall cause its Subsidiaries to, assign the options under option agreements with the Company Sharing Companies and their equityholders to one or more of Parent’s Affiliates or other designees of Parent, and take such other actions reasonably agreed by the Parties to cause one or more of the Company Stations licensed to a Company Sharing Company and subject to a Sharing Agreement with the Company or its Subsidiaries to be acquired by one or more of Parent’s Affiliates or other designees, as applicable (each such assignment and/or acquisition, a “Sharing Station Acquisition”). Without limiting the generality of the foregoing, the Parties shall, and shall cause their respective Representatives to, cooperate in good faith with each other and their respective Representatives and supply each other and their respective Representatives with information, and enter into such agreements and documents, necessary or appropriate to facilitate each Sharing Station Acquisition. Notwithstanding anything to the contrary contained in this Section 7.1(b), none of the Company nor any of its Subsidiaries shall be obligated to consummate a Sharing Station Acquisition, unless such Sharing Station Acquisition is contingent upon the Closing.
(c) In furtherance and not in limitation of the foregoing, each Partyof Parent and the Company shall make, as applicable, agrees promptly as reasonably practicable (i) appropriate filings of Notification and Report Forms pursuant to (x) make, or cause the HSR Act with respect to be made, an appropriate the transactions contemplated by this Agreement; provided that the filing by each of Parent and the Company of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event Merger shall be made within fifteen ten (1510) Business Days after of the execution date of this Agreement (Agreement, unless a later date is mutually agreed between to in writing by both Parent and the Parties)Company, and (iii) the FCC Applications with respect to the transactions contemplated by this Agreement; provided that the FCC Applications with respect to the Merger shall be made within ten (10) Business Days of the date of this Agreement, unless a later date is agreed to in writing by both Parent and the Company. Each of the Company and Parent shall supply as promptly as reasonably practicable and advisable any additional information and documentary materials material that may be requested pursuant to the HSR Act foregoing, and to take all other actions necessary to cause the expiration or termination of the applicable waiting periods regarding the foregoing as soon as practicable. The Company and Parent shall each request early termination of the waiting period with respect to the Merger, the Station Divestitures and any Sharing Station Acquisitions, if applicable, under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory LawsAct. Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries Parent shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business pay 100% of the Companyfiling fees payable under the HSR Act, irrespective of whether the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested transactions contemplated by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Mergerthis Agreement are consummated.
(bd) Each Except as prohibited by applicable Law or Order, each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, shall (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission with a Governmental Authority in connection with the transactions contemplated by this Agreement and in connection with any investigation or other inquiryinquiry by or before a Governmental Authority relating to the transactions contemplated by this Agreement, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Partysubmissions, (ii) promptly inform the other Party of (and if in writing, supply to the other Party) any substantive communication received by such Party from, or given by such Party to, the Federal Trade Commission, the Antitrust Division of the Department of Justice (the “DOJ”)Justice, the Federal Trade Commission (the “FTC”) FCC or any other similar Governmental Entity, by promptly providing copies to the other Party of any such written communications, Authority and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and transactions contemplated by this Agreement, (iii) consult with each other prior to taking any material position with respect to the filings under the HSR Act, the Communications Act and the FCC Rules in discussions with or filings to be submitted to any Governmental Authority, (iv) permit the other Party to review and discuss in advance any communication that it gives toadvance, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must 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 filings under the HSR Act, the Communications Act and the FCC Rules and (v) coordinate with the other in preparing and exchanging such information and promptly provide the other (and its counsel) with copies of all filings, presentations or submissions (and a summary of any oral presentations) made by such Party with any Governmental Authority relating to this Agreement or the transactions contemplated hereby under the HSR Act, the Communications Act and the FCC Rules; provided that Parent shall be entitled to direct, in consultation with the Company, and approve (such approval not to be unreasonably withheld) the content of, any filings with or presentations or submissions to any Governmental Authority relating to this Agreement or the transactions contemplated hereby and to take the lead in the strategic planning for any meetings with, and the conducting of negotiations with, Governmental Authorities relating to this Agreement or the transactions contemplated hereby.
(ce) In The Company and Parent acknowledge that, to the extent reasonably necessary to expedite the grant by the FCC of any application for renewal of any FCC License with respect to any Company Station and thereby to facilitate the grant of the FCC Consent with respect to such Company Station, each of the Company, Parent and their applicable Subsidiaries shall be permitted to enter into tolling agreements with the FCC to extend the statute of limitations for the FCC to determine or impose a forfeiture penalty against such Company Station in connection with (i) any pending complaints that such Company Station aired programming that contained obscene, indecent or profane material or (ii) any other enforcement matters against such Company Station with respect to which the FCC may permit the Company or Parent (or any of their respective Subsidiaries) to enter into a tolling agreement.
(f) If the Closing shall not have occurred for any reason within the original effective periods of the FCC Consent, and neither party shall have terminated this Agreement pursuant to the terms hereof, the Company and Parent shall use their reasonable best efforts to obtain one or more extensions of the effective period of the FCC Consent to permit consummation of the transactions hereunder. Upon receipt of the FCC Consent, the Company and Parent shall use their respective reasonable best efforts to maintain in effect the FCC Consent to permit consummation of the transactions hereunder. No extension of the FCC Consent shall limit the right of the Company and Parent to terminate this Agreement pursuant to the terms hereof.
(g) Unless prohibited by applicable Law or Order or by the applicable Governmental Authority, each of the Company and Parent shall (i) not participate in or attend any meeting, or engage in any substantive conversation, with any Governmental Authority in respect of the Merger (including with respect to any of the actions referred to in Section 7.1(a)) without limiting the foregoingother, (ii) give the other reasonable prior notice of any such meeting or conversation and (iii) in the event one such Party is prohibited by applicable Law or Order or by the applicable Governmental Authority from participating or attending any such meeting or engaging in any such conversation, keep the non-participating Party reasonably apprised with respect thereto.
(h) Subject to Section 7.1(i), Parent shall use reasonable best efforts to take actions 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 practicable, including (i) the use of reasonable best efforts to avoid the entry of, or the commencement of any Proceeding in any forum that could result in, any permanent, preliminary or temporary Order that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the transactions contemplated by this Agreement, 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 (including, after the Closing, the Company and its Subsidiaries) (the actions referred to in this clause (A), collectively, the “Station Divestitures”) 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) (each an “Approval Action”), including, in the case of clauses (A) and (B), the Station Divestitures and Approval Actions listed on Section 7.1(h) of the Parent Disclosure Letter, and (ii) the use of reasonable best efforts to take, in the event that Parent requests any permanent or preliminary 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 Company to do sotransactions contemplated by this Agreement (including the Station Divestitures) in accordance with its terms unlawful or that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the Company shall give transactions contemplated by this Agreement (including the Station Divestitures), any notices to third parties required under Contracts, and all steps (including the appeal thereof and the Company shall useposting of a bond) necessary to resist, and cause each 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. In furtherance of the Company Subsidiaries to useforegoing, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate Parent shall take the Transactions, including actions described in Section 7.1(h) of the Merger. Parent Disclosure Letter in accordance with the terms thereof.
(i) Notwithstanding anything herein to the contrary hereincontrary, none of Parentnothing set forth in this Section 7.1 or otherwise in this Agreement shall:
(i) require, or be construed to require the Company Company, Parent or any of their respective Subsidiaries to take, or agree to take, any Station Divestiture or Approval Action, unless such Station Divestiture or Approval Action shall be required conditioned upon the consummation of the Merger; or
(ii) require, or be construed to pay require Parent or any of its Subsidiaries to agree or propose to take or consent to the taking of any Station Divestitures, Approval Actions or other similar fee, payment or consideration, make any other concession actions contemplated by this Section 7.1 other than (x) the Station Divestitures and Approval Actions listed on Section 7.1(h) of the Parent Disclosure Letter or provide any additional security (including a guaranty)resulting from the failure, or amend or modify any Contractif any, to obtain a Permitted Waiver and (y) such third party consents (exceptother Station Divestitures, Approval Actions or any other actions contemplated by this Section 7.1 that would not, individually or in the case aggregate, result in a material adverse effect on Parent and its Subsidiaries (including, after the Closing, the Company and its Subsidiaries), taken as a whole, as they would exist after giving effect to the Merger and to the Station Divestitures and Approval Actions described on Section 7.1(h) of the CompanyParent Disclosure Letter or resulting from the failure, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject any, to the occurrence of the Closing)obtain a Permitted Waiver.
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Nexstar Media Group, Inc.), Agreement and Plan of Merger (Tribune Media Co)
Efforts. (a) Subject to the terms and conditions herein provided and without limiting the obligations of any Party to the extent a higher standard of efforts is expressly provided for in this AgreementAgreement with respect to any specific action or matter, Parent (and each of the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall Parties agrees to use 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, all things necessary, proper or and advisable under applicable Law Laws to consummate the Transactions, including the Merger, as soon as practicable after the date hereof (and in any event by the Outside Date), including (i) preparing and filing or otherwise providing, in consultation with the other Party and make effective as promptly as reasonably practicable the transactions contemplated by this Agreement and advisable after the date hereofAncillary Agreements, including cooperating with one another and using all commercially reasonable efforts to prepare all necessary documentation to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as reasonably practicable all consents, waivers and approvals necessary to consummate the transactions contemplated by this Agreement and the Ancillary Agreements (including the Merger and in any event the Restructuring contemplated by the Outside DateMerger 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) all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations necessary or advisable no Party shall be obligated to be obtained from pay any consideration to any third party and/or from whom any Governmental Entity in order to consummate the Transactionssuch consent, including the Merger, waiver or approval is requested and (iib) taking all steps as may be necessary, subject to the limitations in this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation of the foregoing, each Party, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent Parent shall be required with respect to any amendment or modification to, or offer or agree to, take or commit to take any action with respect totermination of, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action Assumed Contract in connection with respect to, obtaining any such requirementconsent, condition, limitation, understanding, agreement waiver or order so long as such requirement, condition, limitation, understanding, agreement or order approval that is only binding on adverse in any material respect to the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by ParentPurchaser Parties, the Company or any of their respective Subsidiaries of all Subsidiaries. At the Asset Closing, the Seller Parties or any portion of their respective businesses Subsidiaries (as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiariesappropriate) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactionswill, 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, including the Merger.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate time after the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of ParentAsset Closing, the Company or its Subsidiaries 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 more effectively convey and transfer to Purchaser any of their respective Subsidiaries shall be required to pay any consent or the Purchased Assets, and Purchaser will execute and deliver such further instruments and take such other similar feeaction, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of at the Company’s sole expense, if requested by Parent and either (i) reimbursed as the Company or indemnified for by Parent or (ii) subject its Subsidiaries may reasonably require to have Purchaser more effectively assume the occurrence of the Closing)Assumed Liabilities.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Sungard Capital Corp Ii), Asset Purchase Agreement (GL Trade Overseas, Inc.)
Efforts. (a) Subject to the terms Buyer and conditions of this Agreement, Parent Seller will each use their respective commercially reasonable efforts (and the Parent Subsidiariesi) and the Company (and the Company Subsidiaries) shall use reasonable best efforts to take, or to cause to be taken, all actions actions, and to do, or to cause to be done, all things necessary, proper or advisable under applicable Applicable Law or otherwise to consummate and make effective the Transactionstransactions contemplated by this Agreement, including (ii) to successfully complete the Merger, as soon as practicable after the date hereof (China Closing and obtain from any Governmental Authorities any material Permits and Licenses or approvals required to be obtained by Buyer or Seller or any of their Subsidiaries in any event by the Outside Date), including (i) preparing and filing or otherwise providing, in consultation connection with the transfer of the Equity Interests to Buyer and the consummation of the other Party transactions contemplated hereby, (iii) to thereafter make any other required submissions, with respect to this Agreement and as promptly as reasonably practicable and advisable after the transactions contemplated hereby required under (A) any antitrust or competition laws applicable to the transactions contemplated by this Agreement within 10 Business Days from the date hereof, all documentation to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as reasonably practicable (and in B) any event by the Outside Date) 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 Transactions, including the Merger, and (ii) taking all steps as may be necessary, subject to the limitations in this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation of the foregoing, each Party, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act Applicable Law with respect to the Transactions as assignment or licensing of Intellectual Property, promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution of this License Agreement (unless a later date is mutually agreed between the Parties)and Intellectual Property Assignments are duly executed, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Applicable Law, including but not limited to directing . Each of Buyer and unilaterally determining Seller (ior their respective Affiliates) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter intoshall consult in advance, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Companyother in connection with any proposed written or material oral communication with 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 any meeting with any Governmental Authority on antitrust matters unless it first consults with the other in advance, and to the extent permitted by such Governmental Authority, gives the other the opportunity to be present thereat. Each of Buyer and Seller shall be responsible for legal fees incurred and filing fees required to be paid by it or their respective Affiliates in connection with any antitrust filing, and such fees shall not be split with or reimbursed by the 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, 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 ability of Buyer to acquire or hold or to exercise full rights of ownership of the Equity Interests, (iii) any obligations on Buyer or any of its Subsidiaries or Seller or any of its Subsidiaries to maintain facilities, operations, places of business, employment levels, products or businesses or (iv) 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 furnishing the other party with copies of written notices or other written communications received by such party or any of its Affiliates or representatives with respect to the transactions contemplated by this Agreement.
(c) In connection 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 without limiting (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, Buyer shall make, or reimburse Seller for, any payment or other expense paid or incurred in connection with obtaining any Requested Sublicenses.
(g) As promptly as practicable following the date of this Agreement, Seller shall provide Buyer with a detailed listing as of the Closing Date with respect to each item of Registered IP included in the event that Parent requests the Company Transferred IP and all actions, filings and payment obligations due to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents be made to any Contracts that are necessary to consummate Governmental Authority within 180 days following the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing)Closing Date.
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 this Agreement, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall each party will use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law laws and regulations to consummate the Transactions, including Amalgamation and the Merger, other transactions contemplated by this Agreement and the Amalgamation Agreement as soon as practicable after the date hereof (and in any event by the Outside Date)hereof, including including, without limitation, (i) preparing and filing or otherwise providingfiling, in consultation with the other Party party and as promptly as reasonably practicable and advisable after the date hereof, all documentation to effect all necessary applications, notices, petitions, filings filings, and other documents and to obtain as promptly as reasonably practicable (and in any event by the Outside Date) all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits permits, and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate the Transactions, including Amalgamation or any of the Merger, other transactions contemplated by this Agreement or the Amalgamation Agreement and (ii) taking all steps as may be necessary, subject to the limitations in this Section 6.2, necessary to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals; provided, however, that efforts in connection with the Financing and the Required Refinancing Indebtedness shall be governed by Section 7.12 and not this Section 7.3. In furtherance and not in limitation of the foregoing, each Party, as applicable, party hereto agrees to (x) make, or cause to be made, make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions transactions contemplated hereby as promptly as reasonably practicable, and in any event within fifteen (15) 20 Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties)Agreement, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials material that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period periods under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a7.3(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits permits, and authorizations for the Transactions transactions contemplated by this Agreement and the Amalgamation Agreement under the HSR Act, the Communications Act or any other Regulatory LawLaw (as defined below), (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, respects and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, submissions; (ii) promptly inform the other Party party of any communication received by such Party party from, or given by such Party party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) ), the FCC, CFIUS or any other Governmental Entity, by promptly providing copies to the other Party party of any such written communications, and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions transactions contemplated by this Agreement and the Amalgamation Agreement, provided, however, that materials may be redacted (x) to remove references concerning the valuation of Parent, Company or any of their Subsidiaries, (y) as necessary to comply with contractual arrangements, and (z) as necessary to address reasonable privilege or confidentiality concerns; and (iii) permit the other Party party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, substantive telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC FTC, the FCC, CFIUS, or any other Governmental Entity Entity, provided, however, that materials may be redacted (x) to remove references concerning the valuation of Parent, Company or any of their Subsidiaries, (y) as necessary to comply with contractual arrangements, and (z) as necessary to address reasonable privilege or confidentiality concerns, or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited permitted by the DOJ, the FTC FTC, the FCC, CFIUS or any other applicable Governmental Entity or other Person, give the other Party party the reasonable opportunity to attend and participate thereat; providedin such meetings, howeversubstantive telephone calls and conferences. For purposes of this Agreement, “Regulatory Law” means the ▇▇▇▇▇▇▇ Act, as amended, the ▇▇▇▇▇▇▇ Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, the Communications Act, Section 721 of the Defense Production 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 materials required are designed or intended to be provided pursuant to the foregoing clauses (i) - prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or affecting competition or market conditions through merger, acquisition or other transaction, (ii) regulate telecommunications businesses, or (iii) may be redacted (Aregulate foreign investment. In furtherance and not in limitation of the covenants of the parties contained in Section 7.3(a) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such material and the information contained therein 7.3(b), each party hereto 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 on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, use its reasonable best efforts to obtain resolve objections, if any, as may be asserted with respect to the transactions contemplated by this Agreement and the Amalgamation Agreement under any third party consents to any Contracts that are necessary to consummate the Transactions, including the MergerRegulatory Law. Notwithstanding anything to the contrary hereincontained in this Agreement, none of Parent shall not be required to agree to any terms, conditions or modifications (including Parent, the Company or any of their respective Subsidiaries shall be required having to pay cease operating, sell or otherwise dispose of any consent assets or other similar fee, payment or consideration, make any other concession or provide any additional security business (including the requirement that any such assets or businesses be held separate)) with respect to obtaining the expiration or termination of any waiting period or any consents, permits, waivers, approvals, authorizations or orders in connection with the Amalgamation or the consummation of the transactions contemplated by this Agreement and the Amalgamation Agreement that would result in, or would be reasonably likely to result in, either individually or in the aggregate, a guarantymaterial adverse effect on (x) the business or operations of the Company and its Subsidiaries, taken as a whole, (y) Parent and its Subsidiaries, taken as a whole (assuming Parent and its Subsidiaries, taken as a whole, are the size of the Company and its Subsidiaries, taken as a whole), or amend or modify any Contract(z) Parent and its Subsidiaries, taken as a whole, after giving effect to obtain such third party consents the Amalgamation (exceptassuming Parent and its Subsidiaries, in taken as a whole, prior to giving effect to the case Amalgamation, are the size of the CompanyCompany and its Subsidiaries, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject taken as a whole, prior to giving effect to the occurrence of the ClosingAmalgamation).
Appears in 2 contracts
Sources: Agreement and Plan of Amalgamation (Level 3 Communications Inc), Amalgamation Agreement (Global Crossing LTD)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, Parent (and the Parent Subsidiaries) and the Company (and the Company its Subsidiaries) and Parent (and its Subsidiaries and Affiliates) shall cooperate with the other parties and 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 consummate and make effective the Transactions, including Merger and the Merger, as soon as practicable after other transactions contemplated by this Agreement prior to the date hereof (and in any event by the Outside End Date), including (i) preparing and filing all documentation necessary to effect all necessary actions or otherwise providingnonactions, 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 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 Entity in connection with the foregoing vacated or reversed and (iv) executing and delivering any additional instruments necessary to consummate the 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 consultation 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 Party 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 reasonably practicable and advisable after the date hereof, all documentation (ii) supply or cause to effect all necessary applicationsbe supplied, notices, petitions, filings and other documents and to obtain as promptly as reasonably 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 (and in any event by the Outside Dateiii) use its reasonable best efforts to promptly obtain all waiting period expirations necessary actions or terminationsnonactions, waivers, consents, clearances, waivers, licenses, orders, registrations, approvals, permits approvals and authorizations necessary expirations or advisable to be obtained from terminations of waiting periods under the HSR Act and any third party and/or other applicable Antitrust Law or Foreign Investment Law but in any Governmental Entity in order to consummate the Transactions, including the Merger, and (ii) taking all steps as may be necessary, subject event prior to the limitations in this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. End Date.
(c) In furtherance and not in limitation of the foregoing, each Party, as applicable, agrees to Parent (xand its Subsidiaries and Affiliates) makeshall take, or cause to be madetaken, an appropriate filing of a Notification all other actions and Report Form pursuant do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the HSR Act 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 Transactions as promptly as reasonably practicable, Merger and in any event within fifteen (15) Business Days after the execution of other transactions contemplated by this Agreement (unless a later date is mutually agreed between the Parties)Agreement, and to supply as promptly as reasonably practicable avoid or eliminate each and advisable every impediment under any additional information and documentary materials Antitrust Law or Foreign Investment Law that may be requested pursuant asserted by any Governmental Entity with respect to the HSR Act Merger and the other transactions contemplated by this Agreement so as to enable the Closing to occur no later than the End Date, including (x) proposing, negotiating, committing to, effecting, agreeing to and executing, by consent decree, settlement, undertaking, stipulations or otherwise, the sale, divestiture, transfer, license, hold separate or disposition of any and all of the share capital or other equity voting interests, assets (whether tangible or intangible), businesses, divisions, operations, products or product lines of Parent (including its Subsidiaries 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 all other any actions necessary or agree to cause any undertakings that would limit Parent’s (including its Subsidiaries’, Affiliates’, and the expiration Surviving Corporation’s) freedom of action with respect to, or termination 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 the applicable waiting period under the HSR Act as soon as reasonably practicable Parent (and its Subsidiaries and Affiliates, including the Surviving Corporation) or the Company (and its Subsidiaries), in each case so as to satisfy the conditions to Closing or to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any event by Action that would otherwise have the Outside Dateeffect of preventing the Closing or delaying the Closing beyond the End Date (each such action in the foregoing clauses (x), (y) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicablez), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials a “Burdensome Condition”); provided, that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, (and its Subsidiaries) shall not permit be permitted to offer or agree to or effectuate any Company Subsidiary to, Burdensome Condition without the prior written consent of Parent; provided, become subject further, that the Company (and its Subsidiaries) shall be required to agree to or effectuate any Burdensome Condition upon written direction from Parent so long as the effectiveness thereof is conditioned on the Closing. Except as otherwise permitted under this Agreement, Parent shall not (and shall cause its Subsidiaries and Affiliates not to, consent to) acquire or agree to acquire any business, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or a substantial portion of the business of the Company, the Surviving Company, Parent, Merger Sub assets or any Subsidiary equity of any of the foregoing (unlessbusiness, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, 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 will become subject toand Affiliates) shall use its reasonable best efforts, consent to the extent permitted under applicable Law, to (i) consult and cooperate in all respects with each other in connection with any filing or offer submission with a Governmental Entity in connection with the Merger and the other transactions contemplated by this Agreement and in connection with any investigation or agree toother inquiry by or before a Governmental Entity or any other Person relating to 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 Merger and the other transactions contemplated by this Agreement (and in the case of such written communications, furnish the other parties with a copy of such communication), (iii) permit the other parties to review and discuss in advance, and consider in good faith the views of the other 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 otherwise take as necessary to address reasonable attorney-client, attorney work product or other privilege concerns and (y) reasonably designate any action with respect tocompetitively 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, any such requirementofficers, conditionor directors of the recipient, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order unless written permission is only binding on obtained in advance from the Company or party providing the Company Subsidiaries materials).
(e) In furtherance and not in limitation of the event covenants of the Closing occurs. Furtherparties contained in this Section 5.7, if any Action, including any administrative or judicial action or proceeding by a private party, is instituted (or threatenedthreatened to be instituted) challenging by any Governmental Entity under any Antitrust Law or seeking to restrainForeign Investment Law challenging, prohibit hindering, impeding, interfering with or place conditions on delaying any transaction contemplated by this Agreement as violative of any such Law, Parent shall, upon consultation with the consummation Company and in consideration of the TransactionsCompany’s views in good faith, including be entitled to direct the Merger, or defense and lead in the ownership or operation by Parent, development of the Company or any defense strategy in all respects and each of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company its Subsidiaries) and Parent (and its Subsidiaries and Affiliates) shall use their respective reasonable best efforts to defend contest and resist any such Action or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, proceeding and to have vacated, lifted, reversed or overturned any such Action, decree, judgment, injunction or other such order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Transactions, including Merger and the Mergerother transactions contemplated by this Agreement.
(bf) Each of Parent and shall, upon consultation with the Company shalland in consideration of the Company’s views in good faith, in connection with and without limiting be entitled to lead the efforts referenced in Section 6.2(adevelopment of the (i) to obtain strategy for obtaining all waiting period expirations necessary actions or terminationsnonactions, waivers, consents, clearances, waivers, licenses, orders, registrations, approvals, permits approvals and authorizations for the Transactions under the HSR Act expirations or any other Regulatory Law, (i) cooperate in all respects, including by furnishing terminations of waiting periods so as to enable Closing to occur prior to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other PartyEnd Date, (ii) promptly inform the other Party of response to any communication received by such Party request from, inquiry by, or given investigation by such Party to(including, subject to the Antitrust Division last sentence of the Department of Justice (the “DOJ”this Section 5.7(f), the Federal Trade Commission (the “FTC”timing, nature and substance of all such responses) or any other Governmental Entity, by promptly providing copies Entity with respect to the Merger and the other Party of any such written communications, and of any communication received or given in connection with any proceeding transactions contemplated by a private party, in each case regarding any of the Transactions this Agreement and (iii) permit strategy for the other Party to review in advance any communication that it gives to, defense and consult with each other in advance settlement of any in-person meeting, telephone call action brought by or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with before any Governmental Entity that has authority to delay enforce the applicable Antitrust Laws or Foreign Investment Laws. In furtherance thereof, and not subject to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do soapplicable Law, the Company and its Subsidiaries shall give not settle or compromise or offer to settle or compromise any notices request, inquiry, investigation or other Action by a Governmental Entity with respect to third parties required under Contracts, and the Company shall use, and cause each Merger or the transactions contemplated hereby without the prior written consent of the Company Subsidiaries to use, Parent (which may be withheld or given in its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Mergersole discretion). Notwithstanding anything to the contrary hereinin this Agreement, none of Parentno party shall extend any waiting period under the HSR Act (including by withdrawing and refiling its filing under the HSR Act) or any other Antitrust Law or Foreign Investment Law or enter into any agreement with any Governmental Entity to delay, or otherwise not to consummate as promptly as practicable, the Company Merger or any of their respective Subsidiaries shall be required to pay any the transactions contemplated by this Agreement except with the prior written consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either other party (i) reimbursed or indemnified for by Parent or (ii) subject such consent not to the occurrence of the Closingbe unreasonably withheld).
Appears in 2 contracts
Sources: Merger Agreement (National Instruments Corp), Merger Agreement (Emerson Electric Co)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, Parent 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 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 Subsidiaries) Approvals, from Governmental Entities and the Company 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 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 (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 Parties shall (and shall cause their 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 SubsidiariesDisclosure Letter and Section 5.3(b) shall 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, all other things necessary, proper or advisable under applicable Law to consummate and make effective the Transactions, including the Merger, as soon as practicable after the date hereof transactions contemplated by this Agreement. Company and Parent shall not (and in shall cause their Subsidiaries and Affiliates not to) agree to stay, toll or extend any event by the Outside Date), including (i) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably 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 reasonably practicable (and in any event by the Outside Date) 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 Transactions, including the Merger, and (ii) taking all steps as may be necessary, subject to the limitations in this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation of the foregoing, each Party, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the 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 as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary toother Antitrust Law or Foreign Investment Law, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing).
Appears in 2 contracts
Sources: Merger Agreement (Trump Media & Technology Group Corp.), Merger Agreement (Trump Media & Technology Group Corp.)
Efforts. (a) Subject to 8.2.1 Upon the terms and subject to the conditions of set forth in this Agreement, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall each Party agrees to use its reasonable best efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate and make effective, in the most expeditious manner practicable, the Transactions, including using reasonable best efforts to accomplish the Merger, as soon as practicable after the date hereof (and in any event by the Outside Date), including following: (i) preparing and filing or otherwise providing, the taking of all commercially reasonable acts necessary to cause the conditions precedent set forth in consultation with Article IX to be satisfied; (ii) the other Party and as promptly as reasonably practicable and advisable after the date hereof, all documentation to effect obtaining of all necessary applicationsactions, notices, petitions, filings and other documents and to obtain as promptly as reasonably practicable (and in any event by the Outside Date) all waiting period expirations or terminationswaivers, consents, clearancesapprovals, waivers, licenses, orders, orders and authorizations from Governmental Authorities and the making of all necessary registrations, approvalsdeclarations and filings (including registrations, permits declarations and authorizations necessary or advisable to be obtained from any third party and/or any filings with Governmental Entity in order to consummate Authorities, if any) and the Transactions, including the Merger, and (ii) taking of all commercially reasonable steps as may be necessary, subject necessary to avoid any Proceeding; (iii) the limitations in this Section 6.2, to obtain obtaining of all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation approvals or waivers from third parties required as a result of the foregoing, each Party, as applicable, agrees to Transactions; and (xiv) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution or delivery of this Agreement (unless a later date is mutually agreed between the Parties)any additional instruments reasonably necessary to consummate, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to fully carry out the HSR Act and to take all other actions necessary to cause purposes of, the expiration or termination of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory LawsTransactions. Notwithstanding anything to the contrary set forth in this AgreementSection 8.2, none of Parent, neither the Purchaser nor Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing waive any condition to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not obligations to consummate the Transactions, provided, that (xii) at take any action inconsistent with Section 8.3.4 or the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views fiduciary duties of the Company.
Purchaser Board or the Purchaser Special Committee under applicable Law, or (ciii) In connection with and without limiting the foregoing, in the event that Parent requests the Company pay any consideration to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to or incur any Contracts that are cost in obtaining any necessary to consummate actions, waivers, consents, approvals, orders and authorizations from Governmental Authorities or any third party in connection with the Transactions, including the Merger. Notwithstanding anything to the contrary hereinin this Section 8.2, none neither Seller Party shall be required to (i) waive any condition to its obligations to consummate the Transactions or (ii) take any action inconsistent with the fiduciary duties of Parentthe FFAI Board or the FFAI Special Committee under applicable Law.
8.2.2 Each Seller Party and the Purchaser shall promptly notify the other Parties of any communication it or any of its Affiliates receives from any Governmental Authority relating to the matters that are the subject of this Agreement and permit the other party to review and comment in advance on any proposed communication by such Party or its Affiliates to any Governmental Authority. No such Party shall agree to participate in any meeting with any Governmental Authority in respect of any filing, investigation or other inquiry unless it consults with the other Parties in advance and, to the extent permitted by such Governmental Authority, gives the other Parties the opportunity to attend and participate at such meeting. Each Party will coordinate and cooperate fully with each other in exchanging such information and providing such assistance as the other party may reasonably request in connection with the foregoing. To the extent permitted by such Governmental Authority or applicable Laws, the Company Parties shall provide each other Party with copies of all correspondence, filings or communications between them or any of their respective Subsidiaries representatives, on the one hand, and any Governmental Authority or members of its staff, on the other hand, with respect to this Agreement and the Transactions.
8.2.3 Neither the Purchaser nor either Seller Party shall take any action that would reasonably be required expected to pay delay, impair or impede the receipt of any consent such authorizations, consents, orders or other similar fee, payment or consideration, approvals. Neither the Purchaser nor either Seller Party shall make any submission, notification or filing with any Governmental Authority in connection with the Transactions other concession than as contemplated by this Agreement, required by applicable Law or provide any additional security (including a guaranty), or amend or modify any Contract, necessary to obtain such third party the Regulatory Approvals or consents (except, specified in the case Section 2.2.3 of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing)Seller Disclosure Schedule.
Appears in 2 contracts
Sources: Transaction Agreement (Faraday Future Intelligent Electric Inc.), Transaction Agreement (FF EAI Robotics Ecosystem Inc.)
Efforts. (a) Subject to the terms and conditions of this Agreement, Parent (and the Parent Subsidiaries) and each of Matrix, the Company (and the Company Subsidiaries) Parent shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate and make effective the Transactions, including Merger and the Merger, other transactions contemplated by this Agreement as soon promptly as practicable after the date hereof (and in any event by the Outside Date)of this Agreement, including (i) preparing and filing or otherwise providingfiling, in consultation with the other Party and Parties, as promptly as reasonably practicable and advisable after the date hereof, with any Governmental Authority or other Third Party all documentation to effect all necessary applicationsnecessary, proper or advisable filings, notices, petitions, filings statements, registrations, submissions of information, applications and other documents and (ii) obtaining and maintaining (and cooperating with each other to obtain as promptly as reasonably practicable (and in any event by the Outside Dateor maintain) all waiting period expirations or terminationsapprovals, consents, clearances, waivers, licenses, orders, registrations, approvalspermits, permits authorizations and authorizations necessary or advisable other confirmations required to be obtained from any third party and/or any Governmental Entity Authority or other Third Party, in order each case, that are necessary, proper or advisable to consummate and make effective the Transactions, including Merger and the Merger, and other transactions contemplated by this Agreement (ii) taking all steps as may be necessary, subject to the limitations in this Section 6.2, to obtain all whether or not such waiting period expirations or terminationsapprovals, consents, clearances, waivers, licenses, registrations, permits, authorizationsauthorizations and other confirmations are conditions to the consummation of the Merger pursuant to Article VIII); provided, orders 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 Company or 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 approvals. acknowledge that, except as provided in Section 8.1(a), receipt of any such any approval, consent, registration, permit, authorization or other confirmation is not a condition to Closing.
(b) In furtherance and not in limitation of the foregoing, each Partyof the Company, Matrix and Parent shall make, as applicablepromptly as reasonably practicable, agrees all required filings pursuant to (x) makethe HSR Act and other Competition Laws, or cause with respect to be made, an appropriate 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 Transactions as promptly as reasonably practicable, and in any event Merger shall be made within fifteen five (155) Business Days after of the execution date of this Agreement (Agreement, unless a later date is mutually agreed between to in writing by the Parties)Company and Parent. Each of the Company, Matrix and Parent shall respond promptly to supply as promptly as reasonably practicable and advisable any all requests for additional information and documentary materials that may be requested pursuant material by a Governmental Authority, and shall comply promptly with such requests unless the Company and Parent agree with each other to the HSR Act 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 the 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 as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, neither Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(b) Each of Parent and nor the Company shall, in connection with without the written consent of the other (which consent shall not be unreasonably withheld): (i) pull and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions refile any notification under the HSR Act Act, (ii) enter into any timing agreement with any Governmental Authority or (iii) agree with any other Regulatory LawGovernmental 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) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission with a Governmental Authority in connection with the transactions contemplated by this Agreement and in connection with any investigation or other inquiryinquiry by or before a Governmental Authority relating to the transactions contemplated by this Agreement, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Partysubmissions, (ii) promptly inform the other Party of (and if in writing, supply to the other) any communication received by such Party from, or given by such Party to, the Federal Trade Commission, the Antitrust Division of the Department of Justice (the “DOJ”)Justice, the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private partyAuthority, in each case regarding any of the Transactions and transactions contemplated by this Agreement, (iii) permit the other Party to review and discuss in advance any communication that it gives toadvance, and consult with each consider in good faith the views of the other in advance connection with, any analyses, presentations, memoranda, briefs, arguments, opinions and proposals or other communications to be submitted to any Governmental Authority, and (iv) coordinate with the other in preparing and exchanging such information and promptly provide the other with copies of all filings, presentations or submissions (and a summary of any in-person meeting, telephone call oral presentations) made by such Party with any Governmental Authority relating to this Agreement or other meeting or conference (whether by video or otherwise) with, the DOJ, transactions contemplated hereby under the FTC HSR Act or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereatCompetition Law; provided, however, that materials documents or information required to be provided pursuant to the foregoing clauses this Section 7.1(d) (i) - (iiix) may be redacted as necessary (AI) to comply with contractual arrangements, (II) to avoid waiver of any legal privilege, or (III) to remove references concerning the valuation of Parentor alternative bidders, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (Cy) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) may be designated as “Outside Counsel Only Materialoutside counsel only,” which such material materials and the information contained therein shall be given only to the outside antitrust counsel and previously-agreed consultants of the recipient and will not be disclosed by such outside counsel or consultants to employees, officers officers, or directors of the recipient unless express permission is obtained in without the advance from the source written consent of the materials party providing such materials.
(e) Unless prohibited by applicable Law or Order or by the applicable Governmental Authority, each of the Company, Matrix and Parent on shall (i) not participate in or attend any meeting, or engage in any conversation, with any Governmental Authority in respect of the one hand or Merger (including with respect to any of the Company on actions referred to in Section 7.1(a)) without the other, (ii) give the other reasonable prior notice of any such meeting or its legal counsel. Notwithstanding anything conversation and (iii) in this Agreement to the contraryevent 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 any such conversation, keep the non-participating Parties reasonably apprised with respect thereto.
(f) In furtherance of the foregoing, Parent shall use reasonable best efforts take any action to avoid or eliminate each and every impediment that may be entitled asserted by any Governmental Authority with respect to lead the strategy transactions contemplated by this Agreement so as to enable the Closing to occur as soon as reasonably possible and course in any event, before the End Date, including (i) the prompt use of action for seeking and obtaining its reasonable best efforts to ensure the expiration of all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions periods under the HSR Act Act, and to avoid the entry of, or to effect the dissolution of, any permanent, preliminary or temporary Order that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the 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 Regulatory Lawoperations 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 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 but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing Authority, seeking to delay, restrain, prevent, enjoin or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law otherwise prohibit consummation of such transactions; and (ii) any decision the prompt use of its reasonable best efforts to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In connection with and without limiting the foregoingtake, 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 requests 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 or Affiliates (or any other Person in which Parent or its Affiliates own any equity interest) other than the Company and the SpinCo Entities or (2) obligate Parent or the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents agree to any Contracts that are necessary to consummate Remedy not conditioned on the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence consummation of the Closing).
Appears in 2 contracts
Sources: Merger Agreement (Meredith Corp), Merger Agreement (IAC/InterActiveCorp)
Efforts. (a) Subject to the terms and conditions of this Agreement, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall each party will use 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, all things necessary, proper or advisable under this Agreement and applicable Law laws and regulations to consummate the Transactions, including Transaction and the Merger, other transactions contemplated by this Agreement as soon as practicable after the date hereof (and in any event by the Outside Date)hereof, including (i) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably practicable and advisable after the date hereof, all documentation to effect all necessary applications, notices, petitions, filings and other documents and (ii) to obtain as promptly as reasonably practicable (and in any event by the Outside Date) all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits permits, rulings, authorizations and authorizations clearances necessary or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate the TransactionsTransaction and 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 action, including entering into any consent decree, hold separate orders or other arrangements, that (A) requires, before or after the MergerEffective Time, and the divestiture of any of its assets or any of the assets of its Subsidiaries or (iiB) taking all steps as may be necessarylimits, subject before or after the Effective Time, its freedom of action with respect to, or its ability to retain any of its assets or businesses or any of the limitations in this Section 6.2, to obtain all such waiting period expirations assets or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvalsbusinesses of its Subsidiaries. In furtherance and not in limitation of the foregoing, each Party, as applicable, party hereto agrees to (x) make, or cause to be made, 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, and transactions contemplated hereby (which filing shall in any event within fifteen be made at least thirty (1530) Business Days after days prior to the execution of this Agreement (unless a later date is mutually proposed Closed Date agreed between upon by the Partiesparties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials material that may be requested pursuant to the HSR Act such laws or by such authorities and to take all other actions necessary use reasonable best efforts to cause the expiration or termination of the applicable waiting period periods under the HSR Act and the receipt of Required Approvals under such other laws or from such authorities as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing).
Appears in 2 contracts
Sources: Merger Agreement (Intac International Inc), Merger Agreement (Intac International Inc)
Efforts. (a) Subject to the terms and conditions of this Agreement, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall each Party will use 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 or causing to be done, all things necessary, proper or advisable under this Agreement and applicable Law Laws to consummate the Transactions, including Combination and the Merger, other transactions contemplated by the Transaction Documents as soon as practicable after the date hereof (and in any event by the Outside Date)hereof, including (i) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably practicable and advisable after the date hereof, all documentation to effect all necessary applications, notifications, notices, petitions, petitions and filings and other documents and to obtain as promptly as reasonably practicable (all Consents set forth in Section 5.4 of the Spinco Disclosure Schedule, Section 6.5 of the Spinco Disclosure Schedule and in any event by Section 7.5 of the Outside Date) Utah Disclosure Schedule that are required to be obtained or made at or prior to the Effective Time and all waiting period expirations or terminations, other material consents, clearances, waivers, licenses, orders, registrations, approvals, permits permits, rulings, expirations or terminations of waiting periods, authorizations and authorizations clearances necessary or advisable to be obtained from any third party and/or any Governmental Entity Authority in order to consummate the TransactionsCombination or any of the other transactions contemplated by the Transaction Documents (collectively, including the Merger“Approvals”), and (ii) taking all reasonable steps as may be necessarynecessary to obtain all Approvals and (iii) taking reasonable efforts to share information protected from disclosure under the attorney-client privilege, subject work product doctrine, joint defense privilege or any other privilege pursuant to this Section 8.7 in a manner so as to preserve the applicable privilege; provided that, with respect to Approvals from third parties (other than Governmental Authorities) required under existing Contracts, such efforts shall not include any requirement or obligation of any Party to make any payment to any such third party or assume any Liability not otherwise required to be paid or assumed by the applicable Party pursuant to the limitations 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 6.28.7, materials provided to obtain all such waiting period expirations the other Party or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvalsits outside legal counsel may be redacted to remove references concerning valuation. In furtherance and not in limitation of the foregoing, each Party, as applicable, Party agrees to promptly make (xA) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions Combination and the other transactions contemplated by the Transaction Documents as promptly as reasonably practicable, and in any event within fifteen twenty (1520) Business Days after the execution of this Agreement date hereof (unless the Parties shall mutually agree that postponing such filings to a later date is mutually agreed between advantageous for purposes of satisfying the Partiesconditions to the Combination, in which case the Parties shall identify a reasonable later date and the Parties shall file on such later date), (B) appropriate filings, if any are required, with foreign regulatory authorities in accordance with other applicable Competition Laws, with respect to the Combination and the other transactions contemplated by the Transaction Documents as promptly as 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 reasonably practicable and advisable any additional information and documentary materials material that may be requested pursuant to the HSR Act such applicable Laws or by such Governmental Authorities and to take all other actions necessary use reasonable best efforts to cause the expiration or termination of the any applicable waiting period under the HSR Act Act, and the receipt of the Approvals under such other applicable Laws or from such Governmental Authorities as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(b) Each of Parent and the Company shall, in In connection with and without limiting the foregoing, 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 6.2(a) 8.7 to obtain all waiting period expirations or terminationsApprovals, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, use its reasonable best efforts to (ix) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including (y) to the extent permitted by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other PartyLaw, (ii) promptly inform the other Party of any communication received by such Party party from, or given by such Party party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, Authority and of any material communication received or given in connection with any proceeding by a private party, in each case regarding the Combination or any of other transactions contemplated by the Transactions Transaction Documents (and in each case, if any such communication is in writing, share a copy with the other Party) and (iiiz) to the extent permitted by Law, permit the other Party to review in advance any communication that to be given by it gives to, and consult in good faith with each other in advance of any in-person meeting, meeting or telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any such other Governmental Entity Authority or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited permitted by the DOJ, the FTC or such other applicable Governmental Entity Authority or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements in such meetings and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counselconferences. Notwithstanding anything in this Agreement to the contrary, Parent shall but without limiting each Party’s obligations under this Section 8.7, Utah shall, on behalf of the 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 entitled asserted by any Governmental Authority with respect to the 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 and course of action for seeking and obtaining dealing with all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for Actions challenging the Transactions under the HSR Act Combination or any of the transactions contemplated by the Transaction Documents that are brought by DOJ, the FTC or such other Regulatory applicable Governmental Authority with respect to any antitrust, merger control, competition, national security or trade regulation Law.
(b) Without limiting this Section 8.7, but subject to the next sentence of this Section 8.7(b), 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, merger control, competition, national security or trade regulation Law that may be asserted by any Governmental Authority with respect to the Combination or any of the transactions contemplated by the Transaction Documents so as to enable the Closing to occur as soon as reasonably possible, including but not limited to directing and unilaterally determining (i) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of such assets or businesses of 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’ or Utah’s or the Utah Subsidiaries’, as applicable, freedom of action with respect to, or their ability to retain, any decision of the businesses, product lines or assets of Spinco (or the Spinco Subsidiaries) or Utah (or the Utah Subsidiaries) (the actions referred to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law in clauses (i) and (ii) any decision collectively, “Remedial Actions”) in each case, as may be required in order to enter intosatisfy the conditions to closing in Section 9.1(a) and to avoid the entry of, and or to effect the contents dissolution of, any agreement (including a timing agreement) with injunction, temporary restraining order, or other order in any Governmental Entity to delay and not to consummate suit or proceeding, which would otherwise have the Transactionseffect of preventing the Closing or the closing of any other transaction contemplated by the Transaction Documents; provided that, the effectiveness of any such Remedial Action shall be contingent on consummation of the Closing or such other closing, respectively; provided, further, that (x) at without the time prior written consent of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary hereinUtah, none of ParentPluto or any Spinco Party will take, or cause to be taken, any Remedial Action with respect to the Spinco Business, the Company Spinco Assets or the Spinco Liabilities. The obligations of this Section 8.7(b) shall not require Pluto to agree to any of their respective Subsidiaries shall be required Remedial Action with respect to pay any consent assets, Liabilities or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, businesses that are not included in the case of Spinco Assets, the CompanySpinco Liabilities or the Spinco Business, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing)respectively.
Appears in 2 contracts
Sources: Business Combination Agreement (Pfizer Inc), Business Combination Agreement (Mylan N.V.)
Efforts. (a) Subject to From and after the terms date hereof, Buyer and conditions of this Agreement, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) each Seller shall use reasonable best efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Law to consummate and make effective in the Transactions, including most expeditious manner possible the Merger, as soon as practicable after Transaction and the date hereof (and in any event other transactions contemplated by the Outside Date)this Agreement, including (i) preparing the preparation and filing or otherwise providingof all forms, in consultation with the other Party registrations and as promptly as reasonably 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 reasonably practicable (and in any event by the Outside Date) all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations necessary or advisable notices required to be obtained from any third party and/or any Governmental Entity in order filed to consummate the Transactions, including Transaction and the Merger, other transactions contemplated by this Agreement as soon as practicable and (ii) taking all steps as may be necessary, subject the execution and delivery of any additional instruments necessary to consummate the limitations in Transaction and the other transactions contemplated by this Section 6.2, Agreement and to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvalsfully carry out the purposes of this Agreement. In furtherance and not in limitation of Without limiting the foregoing, Buyer and each Party, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) Seller shall use their reasonable best efforts to defend take all actions necessary to obtain (and shall cooperate with each other in obtaining) any Regulatory Approvals (which actions shall include Buyer filing a request for advance ruling certificate under the Competition Act and each of Buyer and each Seller filing, as soon as is practicable (and subject to the immediately succeeding sentence), pre-merger notifications under Part IX of the Competition Act and furnishing all information required in connection with such Approvals) required to be obtained or contest, including through litigation or other meansmade by Buyer, any objection toSeller, any Purchased Company or any Subsidiary of any Purchased Company in connection with the Transaction or the other transactions contemplated by this Agreement. Within ten (10) Business Days following the date hereof, Sellers and Buyer will make the initial filings or submissions as are required under the HSR Act and any other applicable Antitrust Law. Additionally, Buyer and each Seller shall use their respective reasonable best efforts to fulfill all conditions precedent to this Agreement (including those set forth in Section 7.1) and shall not take any action after the date of this Agreement that would reasonably be expected to impair or materially delay the obtaining of, or Actions challengingresult 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 execution of this Agreement or the consummation of the TransactionsTransaction or the other transactions contemplated by this Agreement, and the Parties hereto shall use reasonable best efforts 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 such transfers. Each of the Transactions, including Parties hereto hereby agrees that (i) the Merger.
Parties will bear the costs of obtaining any Approval set forth on Section 7.2(d) of the Seller Disclosure Schedules or Section 7.2(e) of the Seller Disclosure Schedules as set forth on Section 5.1(a) of the Seller Disclosure Schedules and (bii) Each HD Supply and Buyer shall each pay when due and be responsible for one half of Parent any and the Company shall, all filing fees in connection with the filing by the parties hereto of the premerger notification and without limiting report forms relating to the efforts referenced in Section 6.2(a) to obtain all waiting period expirations Transaction or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions other transactions contemplated by this Agreement under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing to and the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions notice under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the CompanyCompetition Act.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing).
Appears in 2 contracts
Sources: Purchase Agreement (Hd Supply, Inc.), Purchase Agreement (Anixter International Inc)
Efforts. (a) Subject to the terms and conditions of this Agreement, Parent Agreement (and the Parent Subsidiaries) other sections of this Section 5.03), each Party will cooperate with the other Parties and the Company use (and the Company Subsidiarieswill cause its Subsidiaries to use and Buyer will cause its Affiliates to use) shall their respective reasonable best efforts to as promptly as reasonably practicable (i) take, or cause to be taken, all actions, and do, or cause to be done, and assist and cooperate with the other Parties in doing, all things necessary, proper or advisable 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, (ii) obtain all approvals, consents, registrations, waivers, permits, authorizations, exemptions, clearances, orders and other confirmations from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions, and (iii) execute and deliver any additional instruments necessary to consummate the Transactions.
(b) In furtherance and not in limitation of the foregoing, the Company and Buyer will each use (and the Company will cause its Subsidiaries to use and Buyer will cause its Affiliates to use) their respective reasonable best efforts to (i) take all action 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 Agreement and otherwise lawfully minimize the effect of such Takeover Law on the Transactions.
(c) Subject to Section 5.03(d), Buyer will solely control the timing and strategy for obtaining any approvals, consents, registrations, waivers, permits, authorizations, exemptions, clearances, orders and other confirmations from any other Governmental Authorities in connection with the Transactions (including, for the avoidance of doubt, any Required Regulatory Approvals) and coordinate the overall development of the positions to be taken and the regulatory actions to be requested in any filing or submission with such other 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 such other Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto, including the final content of any substantive communications with any applicable Governmental Authority with respect to obtaining approval or expiration of any waiting period under the HSR Act and any applicable Antitrust Laws; provided that Buyer will, in good faith, cooperate and consult with the Company in advance and take into consideration the Company’s views, suggestions and comments regarding nonconfidential strategy, efforts and positions to be taken and regulatory actions requested in any filing or submission with such other Governmental Authority.
(d) Notwithstanding anything to the contrary in Section 5.03(a) and Section 5.03(b), each Party agrees to (i) make (and the Company will cause its Subsidiaries and Buyer will cause its Affiliates or, if required pursuant to the HSR Act, any of the Equity Commitment Parties or Investor Group Members or any of 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, but no later than 20 Business Days, following the date of this Agreement, and to supply (and the Company will cause its Subsidiaries and Buyer will cause its Affiliates or, if required pursuant to the HSR Act, any of the Equity Commitment Parties or Investor Group Members or any of their respective Affiliates to supply) as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act, (ii) use 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 Party in doing, all things reasonably necessary, proper or advisable to obtain approval under applicable Law 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 to consummate the Transactions, including the Merger(iii) make any filing to any Governmental Authority that is legally mandatory or necessary, as soon as practicable after the date hereof (and in proper or advisable to obtain any event by the Outside Date), including (i) preparing and filing or otherwise providing, in consultation with the other Party and Required Regulatory Approval as promptly as reasonably practicable and advisable after following the date hereof, all documentation to effect all necessary applications, notices, petitions, filings and other documents and to obtain supply as promptly as reasonably practicable any additional information and documentary material that may be requested by a Governmental Authority, and (iv) promptly take any and all steps necessary to secure clearance of any filing before a Governmental Authority. Subject to Section 5.03 of the Buyer Disclosure Letter, Buyer’s reasonable best efforts to consummate the Transactions shall include taking or committing to take or causing its controlled Affiliates to take or commit to take any of the following actions: (A) (I) executing settlements, undertakings, consent decrees, stipulations or other agreements with any Governmental Authority or with any other Person; (II) placing restrictions on or agreeing to place restrictions on particular assets or categories of assets or businesses, services or other operations or interests of Buyer; (III) permitting the Company to place any restrictions on any of the particular assets or categories of assets or businesses, services or other operations or interests of the Company or any of its Subsidiaries prior to the Effective Time; (IV) terminating existing relationships, contractual rights or obligations of (x) the Company or its Subsidiaries or (y) Buyer or any of its controlled Affiliates; (V) creating any relationship, contractual right or obligation of (x) the Company or its Subsidiaries or (y) Buyer or any of its controlled Affiliates; or (VI) effectuating any other change or restructuring of (x) the Company or its Subsidiaries or (y) Buyer or any of its controlled Affiliates and (B) defending through litigation any claim asserted in court or administrative or other tribunal by any Person (including any Governmental Authority) in order to avoid the entry of, or to have vacated or terminated, any Restraint that is seeking to or would prevent the Closing prior to the Outside Date then in effect; provided, however, that notwithstanding anything to the contrary in this Section 5.03 or Section 5.03 of the Buyer Disclosure Letter, none of Buyer, any Investor Group Member, any Equity Commitment Party, or any of their respective Affiliates will be required to take or commit to taking any action that would materially adversely affect the governance, economic or other material rights or interests of (x) the Company and its Affiliates, taken as a whole or (y) Buyer, any Investor Group Member, any Equity Commitment Party, or any of their respective Affiliates, taken as a whole. Notwithstanding anything to the contrary in this Section 5.03 or Section 5.03 of the Buyer Disclosure Letter, none of Buyer, the Company, any of its Subsidiaries, any Investor Group Member, any Equity Commitment Party, nor any of their respective Affiliates will be required to sell, divest, hold separate or otherwise dispose of, or agree to sell, divest, hold separate or otherwise dispose of, any assets, businesses or interests. Subject to the foregoing, ▇▇▇▇▇ will respond to and seek to resolve (subject to its efforts obligations hereunder) as promptly as reasonably practicable any objections asserted by any Governmental Authority with respect to the Transactions. Each of the Company and Buyer will not take (and each of Company and Buyer will cause their respective 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, in any event by each case, beyond the Outside Date. Nothing in this Agreement will 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. Neither Buyer nor the Company will commit (and will cause their respective Affiliates, including, in the case of Buyer, the Equity Commitment Parties and Investor Group Members and their respective Affiliates, not to commit) all to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period expirations under the HSR Act or terminationsany other Antitrust Laws or enter into a timing agreement with any Governmental Authority, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations necessary or advisable without the prior written consent of the other Party (such consent not to be obtained from unreasonably withheld, conditioned or delayed).
(e) Without limiting the foregoing, Buyer will not, and will not permit any third party and/or Equity Commitment Party, Investor Group Member or any of their respective Affiliates to, acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in or otherwise making any investment in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire or make any investment in any assets, if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger, consolidation or investment would reasonably be expected to (i) materially delay the obtaining of, or materially increase the risk of not obtaining, any consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate or order of any Governmental Entity in order Authority necessary to consummate the TransactionsTransactions or the expiration or termination of any applicable waiting period, including the Merger, and (ii) taking all steps as may be necessarymaterially increase the risk of any Governmental Authority entering an order prohibiting the consummation of the Transactions, subject or (iii) materially delay the consummation of the Transactions; provided, that, notwithstanding anything to the limitations in this Section 6.2contrary herein, any delay that would not permit the Closing to obtain all such waiting period expirations occur on or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. before the Outside Date shall be deemed to be a material delay.
(f) In furtherance and not in limitation of the foregoing, each Party, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as reasonably practicable Party will use (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub or any of will cause their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit Affiliates to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (Ause) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) promptly cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult respects with each other in connection with any filing 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 the FTC, the DOJ or any other Governmental Authority in connection with the Transactions and in connection with any investigation or other inquiryinquiry by or before the FTC, including the DOJ or any other Governmental Authority relating to the Transactions or any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other PartyPerson, (ii) promptly inform keep the other Party 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 Antitrust Division of the Department of Justice (the “DOJ”)FTC, the Federal Trade Commission (the “FTC”) DOJ or any other Governmental Entity, Authority (including by promptly providing copies to sending the other Party a copy of any such written 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 partyPerson, in each case regarding any of the Transactions and Transactions, (iii) permit subject to applicable Laws and the other Party Confidentiality Agreement relating to review in advance any communication that it gives to, and consult with each other in advance the exchange of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Personinformation, and to the extent not prohibited reasonably practicable, promptly consult with the other Party with respect to information relating to the other Party and its Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or the FTC, the DOJ or any other Governmental Authority in connection with the Transactions, other than “4(c) documents” or “4(d) documents,” as those terms are used in the rules and regulations under the HSR Act, (iv) to the extent reasonably practicable and permitted by the DOJFTC, the FTC DOJ or such other applicable Governmental Entity Authority or other Person, promptly give the other Party the reasonable opportunity to attend and participate thereat; providedin such meetings and conferences (whether in person, howeverby telephone or otherwise), that materials required and (v) subject to Section 5.03(d), promptly obtain all consents, registrations, waivers, exemptions, approvals, confirmations, clearances, permits, certificates, orders, and authorizations necessary, proper or advisable to be provided pursuant 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 foregoing clauses Transactions or the Parties (i) - (iii) may be redacted (Awhether formally or informally, in draft form or final form) to remove references concerning the valuation of ParentFTC, Company the DOJ or any other Governmental Authority, the applicable Party will send the other Party such document or information reasonably in advance of their respective Subsidiariessuch submission, and such document or information will not be submitted to the FTC, the DOJ or any other Governmental Authority without the prior written consent of the other Party (B) as necessary such consent not to comply with contractual arrangements and (C) as necessary be unreasonably withheld, conditioned or delayed). Notwithstanding anything to address reasonable privilege or confidentiality concerns; providedthe contrary in this Section 5.03, further, that each of Parent and the Company any Party may, as each it deems advisable and necessary, reasonably designate any competitively sensitive information and material provided to the other Party under this Section 6.2(b) 5.03 as “Outside Counsel Only Materialoutside counsel only.” which such material Such materials and the information contained therein shall will be given only to the outside antitrust legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers officers, or directors of the recipient recipient, unless express written permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counselmaterials. Notwithstanding anything in this Agreement The Parties will use reasonable efforts to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions share information protected from disclosure under the HSR Act attorney-client privilege, work product doctrine, joint defense privilege or any other Regulatory Law, including but not limited privilege pursuant to directing and unilaterally determining (i) this Section 5.03 so as to preserve any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Companyprivilege.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing).
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Penske Automotive Group, Inc.), Agreement and Plan of Merger (Penske Automotive Group, Inc.)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, Parent (and each of the Parent Subsidiaries) parties hereto shall, and the Company (and the Company Subsidiaries) shall cause each of its Subsidiaries to, use 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, all things necessary, proper or advisable under applicable Law Laws to consummate the Transactions, including Offer and to consummate and make effective the Merger, as soon as practicable after Merger and the date hereof (and in any event other transactions contemplated by the Outside Date)this Agreement, including (i) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably practicable and advisable after the date hereof, all documentation to effect obtaining of all necessary applicationsactions or nonactions, notices, petitions, filings and other documents and to obtain as promptly as reasonably practicable (and in any event by the Outside Date) all waiting period expirations or terminationswaivers, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations necessary expirations or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate the Transactionsterminations of waiting periods, including the MergerSpecified Approvals and the Parent Approvals, from Governmental Entities and (ii) the making of all necessary registrations and filings and the taking of all steps as may be necessarynecessary to obtain an approval, subject clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger and the other transactions contemplated by this Agreement and (iv) the execution and delivery of any additional instruments reasonably necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall the Company or any of its Subsidiaries be required to pay prior to the limitations 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 Merger Sub have provided adequate assurance of repayment). Neither party shall take any action that is intended or would reasonably be expected to, individually or in this Section 6.2the aggregate, result in any of the Tender Offer Conditions or the conditions to obtain all such waiting period expirations the Merger set forth in Article VI not being satisfied or terminationsthe satisfaction of those conditions being materially delayed.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the Company and Parent shall (i) use reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, clearances, waivers, licenses, registrations, permits, authorizations, orders waivers, clearances, approvals, and approvals. In furtherance and not in limitation expirations or terminations of the foregoing, each Party, as applicable, agrees to (x) make, or cause waiting periods are required to be madeobtained from, an appropriate filing any third parties or Governmental Entities in connection with the execution and delivery of a Notification this Agreement and Report Form pursuant 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 the HSR Act with respect to the Transactions any Governmental Entity as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials or documents that may be requested pursuant to the HSR Act any Law or by such Governmental Entity and (iii) take, or cause to take 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 cause resolve such objections, if any, as 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 expiration Merger and the other transactions contemplated hereby, and to avoid or termination of eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the applicable waiting period under Merger so as to enable the HSR Act Expiration Date and the Closing to occur as soon as reasonably practicable possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the Outside Date) sale, divestiture or disposition of any material assets or businesses of Parent or its Subsidiaries or controlled affiliates or of the Company or its Subsidiaries and (y) make all other necessary filings under otherwise taking or committing to take any applicable Regulatory Law 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, in each case as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under required in order to avoid the entry of or to effect the dissolution of, any Regulatory Laws. Notwithstanding anything to injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the contrary set forth in this Agreementeffect of preventing the consummation of the Offer on the Expiration Date or the Closing, none of Parent, Merger Sub materially delaying the 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 their respective its Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, or consent to, or offer or agree to, take to or commit to otherwise take any action with respect to, any requirement, condition, limitation, understanding, agreement or order of a Governmental Entity to (A) sell, license, assign, transfer, divest, to hold separate or otherwise dispose of any assetsof, business or portion of to conduct, restrict, operate, invest or otherwise change the assets or business of the Company, the Surviving Company, Parent, Merger Sub Company or any Subsidiary of any of the foregoing or (B) impose any restrictionits affiliates, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any unless such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries 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. FurtherThe 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 Actionadministrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatenedthreatened to be instituted) challenging or seeking to restrainany transaction contemplated by this Agreement, prohibit or place conditions on the consummation each of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of and Parent shall cooperate in all or any portion of their respective businesses as presently conducted respects with each other and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their respective reasonable best efforts to defend contest and resist any such action or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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 TransactionsMerger and the other transactions contemplated by this Agreement. Notwithstanding the foregoing or any other provision of this Agreement, including the Mergernothing in this Section 5.6 shall limit a party’s right to terminate this Agreement pursuant to Section 7.1(b) or 7.1(c) so long as such party has, prior to such termination, complied with its obligations under this Section 5.6.
(be) Each It is agreed that this Section 5.6 shall not govern the obligations of Parent and the Company shallparties with respect to obtaining the Financing, in connection with and without limiting the efforts referenced which obligations are set forth in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company5.11.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing).
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, Parent each of the Parties shall use (and the Parent Subsidiaries) shall cause its Subsidiaries and the Company (controlled Affiliates, and the Company Subsidiaries) shall use reasonable best efforts to takecause its other Affiliates, to use) their respective reasonable best efforts to take 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 Laws or pursuant to any Contract to consummate and make effective the Merger and the other Transactions as promptly as practicable and in any event prior to the End Date, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals and expirations or terminations of waiting periods from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an Action or Legal Proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties (other than Governmental Entities), (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 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 Transactions; provided, that in no event shall the Company or its Subsidiaries be required to pay 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 under any Contract or otherwise unless requested by Parent in writing, in which such case, it shall not be required to pay such fee, penalty or other consideration unless such payment is conditioned on the occurrence of the Closing.
(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, and use reasonable best efforts to cause their respective other Affiliates to) (x) 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 Transactions as promptly as practicable (but in any event within the applicable timeframe set forth on Section 6.07(b) of the Company Disclosure Letter), and (y) file or cause to be filed any and all notifications with respect to the Merger and the other Transactions as may be required by any Governmental Entity as promptly as reasonably practicable (but in any event within the applicable timeframe set forth on Section 6.07(b) of the Company Disclosure Letter), including the MergerSpecified Regulatory Approvals. Subject to Section 6.07(d), the Company and Parent shall (and shall cause their respective Subsidiaries and controlled Affiliates, and use reasonable best efforts to cause their respective other Affiliates to) use their respective reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act.
(c) In furtherance and not in limitation of the foregoing, subject to Section 6.07(d), the Company and Parent shall (and Parent shall cause its Subsidiaries and controlled Affiliates, and use reasonable best efforts to cause its other Affiliates to) cooperate with one another to submit a CFIUS Filing in connection with the Transactions and use their respective reasonable best efforts to obtain CFIUS Approval, including: (i) as promptly as reasonably practicable after the date of this Agreement, the Parties shall prepare and file with CFIUS a CFIUS Filing (including prefiling a draft voluntary notice and, as soon promptly as possible following the receipt of comments from CFIUS on the prefiled draft or confirmation from CFIUS that it has no such comments, filing the formal voluntary notice); and (ii) within the timeframe required by CFIUS, the Parties shall provide CFIUS with any additional or supplemental information requested by CFIUS during its assessment, review or investigation.
(d) In furtherance and not in limitation of the foregoing, Parent and the Company shall (and shall cause their respective Subsidiaries and controlled Affiliates, and use reasonable best efforts to cause their respective other Affiliates to) use their respective reasonable best efforts to take any and all actions necessary, proper or advisable to avoid, eliminate, and resolve any and all impediments under any Antitrust Law or Foreign Investment Law and the DPA that may be asserted by any Governmental Entity or any other Person with respect to the Transactions contemplated by this Agreement and to obtain CFIUS Approval and all consents, approvals and waivers under any Antitrust Law or Foreign Investment Law that may be required by any Governmental Entity to enable the Parties to close the Transaction as promptly as practicable after the date hereof (and in any event by no later than the Outside End Date), including (i) preparing and filing supplying or otherwise providing, in consultation with the other Party and causing to be supplied to any Governmental Entity as promptly as reasonably practicable any and advisable after the date hereofall additional information or documentary material that may be requested, all documentation and certifying compliance with such request (as applicable), under any Law or by such Governmental Entity, (ii) proposing, negotiating, committing to, effecting, agreeing to effect all necessary applicationsand executing, noticesby consent decree, petitionssettlement, filings and other documents and to obtain as promptly as reasonably practicable (and in any event by the Outside Date) all waiting period expirations or terminationsundertaking, consentsstipulations, clearanceshold separate order, waivers, licenses, orders, registrations, approvals, permits and authorizations necessary or advisable to be obtained from binding agreement with any third party and/or or otherwise, the sale, divestiture, transfer, license, hold separate or disposition of any Governmental Entity in order and all of the share capital or other equity voting interests, assets (whether tangible or intangible), businesses, divisions, operations, products or product lines of Parent (or its Affiliates) and of the Company (or its Subsidiaries), (iii) terminating, transferring or creating relationships, contractual rights or other obligations of Parent (or its Affiliates) and the Company (or its Subsidiaries), and (iv) otherwise taking or committing to consummate take any actions or agree to any undertakings that would limit Parent’s (or its Affiliates’, and the TransactionsSurviving Corporation’s) freedom of action with respect to, or their ability to retain, or impose obligations on Parent’s (or its Affiliates’) and the Surviving Corporation’s (and its Subsidiaries’) 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 (or its Affiliates, including the MergerSurviving Corporation) or the Company (or its Subsidiaries), and in each case so as to satisfy the conditions to the Closing or to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any Legal Proceeding that would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date (each such action in the foregoing clauses (ii) taking all steps as may be necessary, subject to the limitations in this Section 6.2), to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation of the foregoing, each Party, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Partiesiv), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration individually or termination of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicablecollectively, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Lawsa “Remedial Action”). Notwithstanding anything in this Agreement to the contrary set forth in this Agreementcontrary, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and (A) the Company may not, and shall not permit be permitted to offer or agree to or effectuate any Company Subsidiary to, Remedial Action without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or ; (B) impose Parent (or any restriction, requirement of its Affiliates) shall not be required to accept or limitation agree to any Remedial Action that would have (x) an adverse impact on the operation Guarantor, its Subsidiaries (excluding the Surviving Corporation after the Effective Time) or Parent’s joint ventures that is material to the Guarantor, its Subsidiaries and Parent’s joint ventures, taken as a whole (excluding the Surviving Corporation after the Effective Time) or (y) a material adverse effect on the Company and its Subsidiaries, taken as a whole (each such impact, a “Burdensome Condition”); and (C) if requested by Parent in writing, the Company shall agree to any Remedial Action so long as such action is conditioned on the occurrence of the business Closing (and, for the avoidance of doubt, the Company shall not be required to effectuate or portion agree to any Remedial Action unless such action is conditioned on the occurrence of the business Closing). Any Remedial Action with respect to the Guarantor, its Subsidiaries or Parent’s joint ventures (excluding the Surviving Corporation after the Effective Time) that would result in an adverse impact on the relationship of the CompanyParent, the Guarantor or their respective joint ventures or Subsidiaries, on the one hand, with Toyota Motor Corporation and its Subsidiaries, on the other hand, that is material to the Guarantor, its Subsidiaries and Parent’s joint ventures, taken as a whole (excluding the Surviving Company, Parent, Merger Sub or any Subsidiary of any of Corporation after the foregoing (unless, within such clause (BEffective Time), such restrictiona material impact being deemed to include a Remedial Action with respect to the Guarantor, requirement its Subsidiaries or limitation Parent’s joint ventures (excluding the Surviving Corporation after the Effective Time) that interferes in any material respect with or prohibits such an entity from continuing to operate or own a business or material portion of a business for which Toyota Motor Corporation or any of its Subsidiaries is the direct or indirect customer, arranger or beneficiary as of the date hereof, shall be deemed to have no a material impact on the CompanyGuarantor, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject toand Parent’s joint ventures, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long taken as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Mergerwhole.
(be) Each of The Company, Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) Merger Sub shall cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with the making of all registrations, filings, notifications, substantive communications, submissions and any filing or submission other actions pursuant to this Section 6.07(e), and, subject to applicable legal limitations and in connection 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, including promptly furnishing the other with any investigation copies of notices or other inquirysubstantive communications provided to or received by or on behalf of the Company or Parent, including as the case may be, or any proceeding initiated by a private partyof Parent’s Subsidiaries, including by allowing from any third party or any Governmental Entity with respect to the 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 to have a reasonable opportunity to review in advance advance, and comment on drafts of filings and submissions and reasonably considering consider in good faith comments the views of the other PartyParty in connection with, (ii) promptly inform the other Party of any proposed notifications or filings and any written substantive communications or submissions, and with respect to any such notification, filing, written substantive communication received by such Party fromor submission, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other documents submitted therewith to any Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (Ai) to remove references concerning the valuation of Parentthe businesses of the Company, Company or any of their respective Subsidiariesproposals from third parties with respect thereto, (Bii) as necessary to comply with contractual arrangements agreements and (Ciii) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may. The Parties, as each deems they deem advisable and necessary, reasonably may designate any competitively sensitive material provided to the other under this Section 6.2(b6.07(e) as “Outside Counsel Only Material,” which and such material 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 other Representatives of the recipient unless express written permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything 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 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) Subject to Section 6.07(e), the Company, Parent and Merger Sub shall cooperate and consult with each other to direct the defense of this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions before any Governmental Entity and to handle the scheduling of, and strategic planning for, any meetings with, and the conducting of discussions and negotiations with, Governmental Entities regarding any consent, approval, waiver, clearance, authorization or permission from a Governmental Entity.
(g) Without limiting any other obligation under this Agreement, during the HSR Act period from the date of this Agreement until the Closing Date or earlier termination of this Agreement in accordance with Article VIII, each of Parent (and its Affiliates) and the Company (and its Subsidiaries) shall not, and shall cause its Subsidiaries and controlled Affiliates, and use reasonable best efforts to cause its other Affiliates to not, acquire or agree to acquire any other Person or business or any material assets or properties of any other Regulatory LawPerson, including but or take any other action, if such acquisition or action would reasonably be expected to materially impede, prevent or materially delay the Parties from obtaining, or materially increase the risk of not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing obtaining, the expiration or voluntarily extend any termination of the waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, CFIUS Approval and the contents ofSpecified Regulatory Approvals, any agreement (including a timing agreement) with any Governmental Entity or to prevent or materially delay and not to consummate or materially impede the consummation of the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing).
Appears in 2 contracts
Sources: Agreement and Plan of Merger (Radius Recycling, Inc.), Agreement and Plan of Merger (Radius Recycling, Inc.)
Efforts. (a) Subject to the terms and conditions hereof, each party hereto shall use their reasonable good faith efforts to ensure that the conditions set forth in Annex I are satisfied and to consummate and make effective the transactions ------- contemplated by the Offer and this Agreement as promptly as practicable in accordance with this Agreement.
(b) The Company agrees to provide, and will cause its subsidiaries and its and their respective officers, employees, advisers and lenders to provide, all reasonable cooperation in connection with the arrangement of any financing contemplated by the Commitment Letter to be consummated contemporaneous with the Closing in respect of the 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 the HSR Act, which notification and report forms and supplemental information will comply in all material respects with the requirements of the HSR Act. The Company shall pay all filing fees required with respect to the notification, report and other requirements of the HSR Act.
(d) If at any time prior to the Effective Time any event or circumstance relating to either the Company or Purchaser or any of their respective subsidiaries, should be discovered by the Company or Purchaser, as the case may be, and which should be set forth in an amendment to the Offer Documents, the Schedule TO, or the Schedule 14D-9, the discovering parties will promptly inform the other party of such event or circumstance. If at any time after the Effective Time any further action is necessary or desirable to carry out the purposes of this Agreement, Parent including the execution of additional documents, assignments and other instruments, the proper officers and directors of each party to this Agreement shall take all such necessary action.
(and e) Each of the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use reasonable best efforts parties agrees to takecooperate with each other in taking, or cause causing to be taken, all actions and necessary to do, or cause to delist the Common Shares from the NASDAQ National Market System if the listing requirements would no longer be done, all things necessary, proper or advisable under applicable Law to consummate the Transactions, including the Merger, as soon as practicable satisfied after the date hereof (and in any event by the Outside Date)Effective Time; provided, including (i) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably practicable and advisable that such delisting shall not be -------- effective until after the date hereof, all documentation to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as reasonably practicable Effective Time.
(and in any event by the Outside Datef) 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 Transactions, including the Merger, and (ii) taking all steps as may be necessary, subject to the limitations in this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation of the foregoing, each Party, as applicable, Purchaser agrees to (x) make, or cause use commercially reasonable efforts to be made, an appropriate filing of a Notification and Report Form pursuant to promptly satisfy any conditions in the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may notCommitment Letter, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent toto waive or amend, or offer or agree toprovide any waivers, take or commit to take any action with in respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries Commitment Letter in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on manner which would adversely affect the consummation of the TransactionsOffer in accordance with this Agreement, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Mergerits timing thereof.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing).
Appears in 2 contracts
Sources: Merger Agreement (CLC Acquisition Corp), Merger Agreement (Coinmach Laundry Corp)
Efforts. (a) Subject The Stockholder shall cooperate with Parent in good faith with respect to the terms and conditions of this Agreement, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate the Transactions, including the Merger, as soon as practicable after the date hereof (and in any event by the Outside Date), including (i) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably practicable and advisable after the date hereof, all documentation to effect all necessary applications, notices, petitionssubmitting such forms, filings and other documents notices as may be reasonably required under the HSR Act, the Communications Act, and to obtain as promptly as reasonably practicable Section 721 of the Defense Production Act (and in any event by collectively, the Outside Date“Specified Laws”) 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 Transactions, including Amalgamation and the Merger, and (ii) taking all steps as may be necessary, subject to the limitations in this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation of the foregoing, each Party, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event transactions contemplated by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none the Plan of Parent, Merger Sub or any of their respective Subsidiaries shall be required toAmalgamation, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the MergerAmalgamation Agreement.
(b) Each of Parent and the Company shall, in connection with with, or in relation to, satisfaction of the conditions set forth in Sections 8.1(d), (e) and without limiting (g) of the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory LawPlan of Amalgamation, (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, respects and consult with each other the Stockholder, its representatives and/or advisors in connection with any filing or submission under any of the Specified Laws, and in connection with any investigation or other inquiry, including any proceeding initiated by a private partyinquiry related thereto, including by allowing the other Party Stockholder, its representatives and/or advisors to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, submissions; (ii) promptly inform the other Party Stockholder, its representatives and/or advisors of any substantive communication received by such Party or on behalf of Parent from, or given by such Party or on behalf of Parent to, the Antitrust Division any Governmental Entities under any of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental EntitySpecified Laws, by promptly providing copies to the other Party Stockholder, its representatives and/or advisors of any such written substantive communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions transactions contemplated by this Agreement, the Plan of Amalgamation, and the Amalgamation Agreement; and (iii) permit the other Party Stockholder, its representatives and/or advisors to review in advance any substantive communication that it gives to, and consult with each other the Stockholder, its representatives and/or advisors in advance of any in-person substantive meeting, telephone call or other meeting or conference (whether by video or otherwise) with, any Governmental Entities under any of the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other PersonSpecified Laws, and to the extent not prohibited permitted by the DOJ, the FTC or other applicable such Governmental Entity or other PersonEntities, give the other Party Stockholder, its representatives and/or advisors the reasonable opportunity to attend and participate thereat; providedin such substantive meetings, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements telephone calls and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Companyconferences.
(c) In connection with and without limiting the foregoing, in the event that Parent requests any Governmental Entities specifically require that the Company Stockholder be a party to do soa network security agreement in order for the condition in Section 8.1(g) of the Plan of Amalgamation to be satisfied, the Company Stockholder shall give 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 Stockholder, its director designees on the board of directors of the Parent (the “Parent Board”), or 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 designated by the Stockholder to the Parent Board pursuant to the Stockholder Rights Agreement, 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 Stockholder be required to enter in to any notices network security agreement that contains the limitations specified in clause (i), unless the number of directors that the Stockholder is entitled to third parties designate to serve on the Parent Board who are not required under Contractsto meet any qualification criteria and who therefore may be designated to the Parent Board in the sole discretion of the Stockholder shall be not less than the greater of (i) two, and (ii) half of the Company total number of directors that the Stockholder is entitled to designate pursuant to the Stockholder Rights Agreement, rounded up to the nearest whole number.
(d) In connection with obtaining the approval of any Governmental Entity the receipt of which is a condition to consummate the transactions contemplated by the Plan of Amalgamation, neither Parent nor any of its Subsidiaries shall, without the prior written consent of the Stockholder, enter into any contract or agreement or any amendment or modification to a contract or agreement with any Governmental Entity that would adversely affect the rights and powers of the Stockholder or any of its 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 use, 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 cause each powers that is substantially consistent with the scope of duties and powers of the security committee of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate as of the Transactions, including the Merger. date of this Agreement.
(e) Notwithstanding anything to the contrary hereincontained in this Agreement, except as specifically set forth in Section 3.5(c), Parent expressly acknowledges and agrees that none of Parent, the Company Stockholder or any of their respective Subsidiaries its Affiliates, nor any of the Stockholder’s designees to the Parent’s Board, shall be required to pay agree to any consent terms, conditions or other similar feemodifications with respect to obtaining the expiration or termination of any waiting period or any consents, payment permits, waivers, approvals, authorizations or consideration, make any other concession orders in connection with the Amalgamation or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case consummation of the Companytransactions contemplated by the Plan of Amalgamation, if requested by Parent and either (i) reimbursed the Amalgamation Agreement or indemnified for by Parent or (ii) subject to the occurrence of the Closing)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 provisions of this Agreement, Parent each of the parties hereto shall use its commercially reasonable efforts to take promptly, or to cause to be taken, all actions, and to do promptly, or to cause to be done, and to assist and to cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Transactions, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals and expirations or terminations of waiting periods, including the Company Approvals and the Parent Subsidiaries) Approvals, from Governmental Entities and the Company (making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance, or waiver from, or to avoid an action or proceeding by, any Governmental Entity; (ii) the obtaining of all necessary consents, approvals or waivers from third parties; (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger and the other transactions contemplated hereby; and (iv) the execution and delivery of any additional instruments reasonably necessary to consummate the transactions contemplated hereby; provided, however, that in no event shall the Company Subsidiariesbe required to pay prior to the Effective Time any fee, penalties or other consideration to any third party to obtain any consent or approval required for the consummation of the Merger under any Contract.
(b) Subject to the provisions of this Agreement, the Company and Parent shall (i) promptly, but in no event later than 10 days after the date hereof, file any and all Notification and Report Forms required under the H▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the “HSR Act”) with respect to the Transactions, and use commercially reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) if required, promptly make an appropriate filing under the European Community Merger Regulation, and use commercially reasonable efforts to obtain a decision from the European Commission allowing the consummation of the Merger and the other transactions contemplated hereby; (iii) 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 third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (B) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals; (iv) 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 Regulatory Law or by such Governmental Entity; and (v) use commercially reasonable efforts to take, or cause to be taken, all other actions and to do, or cause to be done, all other things necessary, proper or advisable under applicable Law to consummate and make effective the TransactionsMerger and the other transactions contemplated hereby, including the Mergertaking all such further action as may be necessary to resolve such objections, if any, as soon as practicable after the date hereof 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 the other transactions contemplated hereby.
(c) Subject to applicable legal limitations and in the instructions of any event 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 Outside Date)Company or Parent, including (i) preparing and filing as the case may be, or otherwise providingany of their respective Subsidiaries, in consultation with the other Party and as promptly as reasonably 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 reasonably practicable (and in any event by the Outside Date) 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 with respect to such transactions. The Company and Parent shall permit counsel for the other party reasonable opportunity to review in order to consummate the Transactions, including the Mergeradvance, and (ii) taking all steps as may be necessaryconsider in good faith the views of the other party in connection with, subject 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 limitations extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate.
(d) Subject to and in this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation of the foregoing, each Party, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination covenants of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth parties contained in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. FurtherSection 5.7, if any Actionadministrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatenedthreatened to be instituted) challenging the Merger or seeking to restrainany other transaction contemplated by this Agreement as violative of any Regulatory Law, prohibit or place conditions on the consummation each of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of and Parent shall cooperate in all or any portion of their respective businesses as presently conducted respects with each other and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their respective commercially reasonable best efforts to defend contest and resist any such action or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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 TransactionsMerger or any other transactions contemplated hereby. Notwithstanding the foregoing or any other provision of this Agreement, including the Mergernothing in this Section 5.7 shall limit a party’s right to terminate this Agreement pursuant to Article VII, so long as such party has, prior to such termination, complied with its obligations under this Section 5.7.
(be) Each of Parent and Notwithstanding the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act foregoing or any other Regulatory Lawprovision of this Agreement, the Company shall not, without Parent’s prior written consent, commit to any divestiture transaction or agree to any restriction on its business, and nothing in this Section 5.7 shall (i) cooperate in all respectsrequire Parent to offer, including by furnishing accept or agree to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning dispose or hold separate any part of its or the valuation Company’s businesses, operations, assets or product lines (or a combination of Parent’s and the Company’s respective businesses, Company 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 respective SubsidiariesAffiliates may carry on business in any part of the world, (B) as necessary to comply with contractual arrangements and (C) as necessary to address unless Parent determines, in its sole reasonable privilege or confidentiality concerns; provided, furtherjudgment, that each of Parent such action would not have more than a de minimis adverse impact on the strategic and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided other benefits expected to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance achieved from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy Merger and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of have more than a de minimis adverse impact on Parent or the Company.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing).
Appears in 2 contracts
Sources: Merger Agreement (Altra Holdings, Inc.), Merger Agreement (Tb Woods Corp)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, Parent each of the parties hereto shall use its reasonable best efforts to take promptly, or to cause to be taken, all actions, and to do promptly, or to cause to be done, and to assist and to cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Merger and the other transactions contemplated hereby, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Company Approvals and the Parent Subsidiaries) Approvals, from Governmental Entities and the Company (making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance, or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger and the other transactions contemplated hereby and (iv) the execution and delivery of any additional instruments reasonably necessary to consummate the transactions contemplated hereby; provided, however, that in no event shall Parent, Merger Sub, the Company Subsidiariesor any of its Subsidiaries be required to pay prior to the Effective Time any fee, penalties or other consideration to any third party to obtain any consent or approval required for the consummation of the Merger under any Contract.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the Company and Parent shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof, file any and all Notification and Report Forms required under the HSR Act with respect to 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) 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 Merger and the other transactions contemplated hereby, (iii) use reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals, (iv) 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 (v) use reasonable best efforts to take, or cause to be taken, all other actions and to do, or cause to be done, all other things necessary, proper or advisable under applicable Law to 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 the MergerUnited 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 the other transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Merger so as to enable the Closing to occur as soon as practicable after the date hereof reasonably possible (and in any event by no later than the Outside End Date), including (i) preparing and filing or otherwise providingincluding, in consultation with the other Party and as promptly as reasonably 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 reasonably practicable (and in any event by the Outside Date) 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 Transactions, including the Merger, and (ii) taking all steps as may be necessary, subject to the limitations in this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in without limitation of the foregoing, each Party, as applicable, agrees to (x) makeproposing, negotiating, committing to and effecting, by consent decree, hold separate order or cause to be madeotherwise, an appropriate filing the sale, divestiture or disposition of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution assets or businesses of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration Parent or termination its Subsidiaries or Affiliates or of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) Company or its Subsidiaries and (y) make all other necessary filings under otherwise taking or committing to take any applicable Regulatory Law 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, in each case as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under required in order to avoid the entry of, or to effect the dissolution of, any Regulatory Laws. Notwithstanding anything to injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the contrary set forth in this Agreementeffect of preventing the Closing, none of Parent, Merger Sub materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither the Company nor any of their respective its Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, or consent to, or offer or agree to, take to or commit to otherwise take any action with respect to, any requirement, condition, limitation, understanding, agreement or order of a Governmental Authority to (A) sell, license, assign, transfer, divest, to hold separate or otherwise dispose of any assetsof, business or portion of to conduct, restrict, operate, invest or otherwise change the assets or business of the Company, the Surviving Company, Parent, Merger Sub Company or any Subsidiary of any of the foregoing or (B) impose any restrictionits Affiliates, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any unless such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries 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. FurtherThe 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 Actionadministrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatenedthreatened to be instituted) challenging the Merger or seeking to restrainany other transaction contemplated by this Agreement as violative of any Regulatory Law, prohibit or place conditions on the consummation each of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of and Parent shall cooperate in all or any portion of their respective businesses as presently conducted respects with each other and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their respective reasonable best efforts to defend contest and resist any such action or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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 TransactionsMerger or any other transactions contemplated hereby. Notwithstanding the foregoing or any other provision of this Agreement, including the Mergernothing in this Section 5.6 shall limit a party’s right to terminate this Agreement pursuant to Section 7.1(b)(i) or (ii) so long as such party has, prior to such termination, complied with its obligations under this Section 5.6.
(be) Each For purposes of Parent 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 Company shallconsent, clearance or approval of, any Governmental Entity, or that otherwise may cause any restriction, in connection with the Merger and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminationstransactions contemplated thereby, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts S▇▇▇▇▇▇ Act of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to1890, the C▇▇▇▇▇▇ Antitrust Division Act of 1914, the Department of Justice (the “DOJ”)HSR Act, the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party Act of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with1914, the DOJECMR and all other Laws that are designed or intended to prohibit, restrict or regulate actions having the FTC purpose or any other Governmental Entity oreffect of monopolization or restraint of trade or lessening competition through merger or acquisition, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and Law governing the contents of, direct or indirect ownership or control of any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each operations or assets of the Company and its Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (iiiii) subject to any Law with the occurrence purpose of protecting the Closing)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, Parent (the Purchaser and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) Seller shall use their respective reasonable best efforts (unless, with respect to any action, another standard of performance is expressly provided for herein) to promptly take, or cause to be taken, all actions actions, and to do, or cause to be done, and assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Law to cause the conditions to the Closing to be satisfied as promptly as practicable and to consummate and make effective, in the most expeditious manner practicable, the Transactions, including the Merger, as soon as practicable after the date hereof (and in any event by the Outside Date), including (i) preparing and filing or otherwise providing, in consultation with the other Party promptly and as promptly as reasonably practicable and advisable after the date hereof, fully all documentation to effect all necessary applicationsfilings, notices, petitions, filings statements, registrations, submissions of information, applications and other documents and (including with respect to obtain as promptly as reasonably practicable any Permits, including Environmental Permits), (and in ii) obtaining all Consents (including with respect to any event by the Outside DatePermits, including Environmental Permits) all waiting period expirations from any Governmental Authority or terminationsthird party necessary, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations necessary proper or advisable to be obtained from consummate the Transactions and (iii) executing and delivering any third party and/or any Governmental Entity in order additional instruments necessary to consummate the Transactions, including in the Mergercase of each of clauses (i) through (iii), and (ii) taking all steps as may be necessaryother than with respect to filings, subject to the limitations in this Section 6.2notices, to obtain all such waiting period expirations or terminationspetitions, consents, clearances, waivers, licensesstatements, registrations, permitssubmissions of information, authorizationsapplications and other Consents relating to Antitrust Laws, orders which are dealt with in Section 7.01(b), (c) and approvals. In furtherance and not in limitation (d).
(b) Each of the foregoing, each Party, as applicable, parties hereto agrees to (xi) make, or cause to be made, make 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) and any required notification under any other Antitrust Laws as promptly as reasonably practicablepracticable following the date of this Agreement, (and in any event with respect to filings made pursuant to the HSR Act within fifteen ten (1510) Business Days after calendar days, provided, that the execution obligation to make such filings shall be automatically extended on a day-for-day basis for each calendar day during which filings cannot be submitted due to a United States federal government shutdown following the date of this Agreement (unless a later date is mutually agreed between the PartiesAgreement), and to (ii) supply as promptly as reasonably practicable and advisable any additional information and documentary materials material that may be requested pursuant to the HSR Act and such other Antitrust Laws and to promptly take any and all other actions steps necessary to cause the expiration avoid or termination of the applicable waiting period under the HSR Act as soon as reasonably practicable (eliminate each and in any event by the Outside Date) every impediment and (y) make obtain all other necessary filings Consents under any applicable Regulatory Law 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 promptly as reasonably practicable, and to supply enable the parties hereto to consummate the Transactions as promptly as reasonably practicable and advisable in any additional information event prior to the Termination Date.
(c) Without limiting the foregoing, the Purchaser and documentary materials the Seller shall, and shall cause their respective Affiliates to use, reasonable best efforts to cooperate in good faith with all applicable Governmental Authorities and undertake as promptly as reasonably practicable commercially reasonable actions required to complete lawfully the Transactions prior to the Termination Date, provided, that may be requested under any Regulatory Laws. Notwithstanding notwithstanding anything to the contrary set forth in this Agreement, none the Purchaser (and its Affiliates) shall not be required to (i) proffer or consent to a Judgment or consent order providing for the sale or other disposition, or the holding separate, of Parentparticular assets, Merger Sub categories of assets or lines of business of such party, including assets or lines of business of the Transferred Entities (including the termination of any existing relationships or contractual rights of the Transferred Entities), (ii) proffer or consent to any other restriction, prohibition or limitation on the ownership or operation of any of such assets or lines of businesses, or (iii) proffer or consent to enter any other Contract regarding any of such assets or lines of businesses, in order to remedy any concerns that any Governmental Authority may have with respect to the Transactions (any of the actions described in the foregoing clause (i), (ii) or (iii) an “Antitrust Remedial Action”), other than any Antitrust Remedial Actions that (A) solely apply to the Business from and after the Closing and (B) individually or in the aggregate, would not reasonably be expected to be material to the Business, taken as a whole. For the avoidance of doubt and notwithstanding anything to the contrary in this Section 7.01 or any other provision of their respective Subsidiaries this Agreement, neither the Seller nor any of its Affiliates (other than the Transferred Entities effective upon the Closing) shall be required to sell, divest, dispose of or enter into any other arrangements, or take any other Antitrust Remedial Action with respect to, their businesses, product lines, assets or operations pursuant to this Section 7.01 or any other provision of this Agreement, and the Company may not, and “reasonable best efforts” of the Seller shall not permit include taking any Company Subsidiary to, without of the prior written consent of Parent, become subject to, consent to, or offer Antitrust Remedial Actions.
(d) Nothing in this Agreement shall require any party to take or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, to its business or operations unless the effectiveness of such agreement or order to action is conditioned upon the Closing. The Purchaser shall (Ai) sell, license, assign, transfer, divest, hold separate or otherwise dispose of control the strategy for obtaining any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or Consents from any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or Governmental Authority in connection with the Transactions); provided that if requested by Parentthe Purchaser shall consult in good faith with the Seller regarding such strategy, and (ii) coordinate the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation overall development of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed positions to be conducted, Parent (taken and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts regulatory actions to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is be requested in effect and that prohibits, prevents or restricts consummation of the Transactions, including the Merger.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult 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 inquiryinquiry or litigation by or before, or any negotiations with, a Governmental Authority relating to the Transactions and of all other regulatory matters incidental thereto. Neither the Purchaser nor the Seller shall 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.
(e) 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, submission or substantive written communication 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 partyperson, including by allowing allow the other Party to have a reasonable opportunity party to review such filing, submission, or substantive written communication in advance advance, and comment on drafts of filings and submissions and reasonably considering consider in good faith comments the views of the such other Partyparty with respect to such filing, submission, or substantive written communication, (ii) promptly inform keep the other Party parties hereto informed in all material respects and on a reasonably timely basis of any material communication received by such Party party from, or given by such Party party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) ), FERC or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, Authority and of any material communication received or given in connection with any proceeding by a private partyPerson, in each case regarding any of the Transactions and Transactions, (iii) permit subject to applicable Laws relating to the other Party to review in advance any communication that it gives to, and consult with each other in advance exchange of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Personinformation, and to the extent not prohibited reasonably practicable, consult with the other parties hereto with respect to information relating to the other parties hereto and their respective Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any third Person or any Governmental Authority in connection with the Transactions, other than “Transaction-Related Documents” and “Plans and Reports” as those terms are used in the rules and regulations under the HSR Act, and (iv) to the extent permitted by the FTC, the DOJ, the FTC FERC or such other applicable Governmental Entity Authority or other Person, give the other Party parties hereto prompt notice of, and the reasonable opportunity to attend and participate thereat; providedin, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements substantive meetings and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Companyconferences.
(cf) In connection with furtherance of the obligations set forth in Section 7.01(a) and without limiting otherwise subject to the foregoing, in the event that Parent requests the Company to do soterms of this Section 7.01, the Company shall give any notices to third parties required under Contracts, Seller and the Company Purchaser shall use, and cause each of the Company Subsidiaries to use, its use their respective reasonable best efforts to obtain approval from FERC pursuant to Section 203 of the FPA in order to consummate the Transactions. The Purchaser and its Affiliates shall reasonably cooperate and consult with the Seller and its Affiliates in such efforts, including the execution of, or consenting to, FPA Section 203-related applications or submissions with FERC, including any third party consents inquiries from staff, which applications or submissions shall be made as soon as practicable, but in no event later than ten (10) calendar days after the date of this Agreement. The Purchaser and its Affiliates shall make all necessary post-Closing filings and submissions pursuant to FERC’s rules, including all applicable deadlines.
(g) In connection with the Company Sites located in Pedricktown, New Jersey, (i) the parties acknowledge that the execution of this Agreement and the consummation of the Transactions will require, and the parties shall reasonably cooperate with respect to, compliance with the New Jersey Industrial Site Recovery Act, N.J.S.A. 13:1K-6 et seq., and the regulations promulgated pursuant thereto, N.J.A.C. 7:26B 1.1 et seq., as amended (“ISRA”), (ii) the Seller shall complete and file a “General Information Notice” as defined under and in compliance with ISRA (the “ISRA Filing”) within five days of the date of this Agreement, (iii) subject to Seller’s indemnification obligations with respect to any Contracts Non-Legacy Environmental Liabilities under Section 10.02(b), (A) the “General Information Notice” shall identify and be executed by the Company as the responsible party and (B) the Seller shall (x) make all other governmental filings and submissions and take all other actions necessary to comply with ISRA (as a result of this Agreement and the consummation of the Transactions), including causing the Company to execute an “ISRA Remediation Certification” form and to establish any required remediation funding source or financial assurance (unless Purchaser notifies Seller in advance that are the Purchaser, the Company or its Affiliates, to the extent permitted under ISRA, will provide a self guarantee in lieu of such required source or assurance) as necessary to consummate the TransactionsTransactions (and provide Purchaser with a reasonable opportunity to review and comment in advance on such filings and submissions) and (y) have the right to manage and control any Remedial Action with respect to any Non-Legacy Environmental Liability required to comply with ISRA, including in accordance with the Merger. terms of Section 10.05(c) and using a licensed site remediation professional reasonably acceptable to Purchaser.
(h) Notwithstanding anything to the contrary herein, none of Parentin this Agreement, the Company Seller and its Affiliates shall have no obligation to pay money or offer or make any concession or grant any accommodation (financial or otherwise) to any Governmental Authority or other third party in connection with the performance of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing)obligations under this Section 7.01.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Occidental Petroleum Corp /De/)
Efforts. (a) Subject to the terms and conditions set forth herein and to applicable Legal Requirements, each of the parties to this Agreement and their Subsidiaries and Affiliates shall cooperate and use its respective reasonable best efforts to take, or cause to be taken, all appropriate action, and do, or cause to be done, and assist and cooperate with the other parties to this Agreement, Parent including their Subsidiaries and Affiliates, in doing, all things necessary, proper or advisable to cause the conditions to the Closing set forth in Article IX to be satisfied as promptly as reasonably practicable or to effect the Closing and consummate and make effective the transactions contemplated hereby as promptly as reasonably practicable, including (i) making all necessary Filings with Governmental Authorities or third parties, (ii) obtaining all necessary, proper or advisable Consents, registrations, notices and applications as required by any Governmental Authority or applicable Legal Requirement or as required by any Contract, lease or agreement, including those disclosed in Schedule 4.13(a) of the Company Disclosure Schedules and Schedule 9.1(b), (iii) obtaining the Required Company Statutory Approvals and all other Consents of Governmental Authorities that are necessary or proper to consummate the Merger, and (iv) executing and delivering any additional instruments that are necessary, proper or advisable to consummate the Merger.
(b) In furtherance and not in limitation of the foregoing, each of Parent, the Company, and the Parent SubsidiariesSecurityholders shall make or cause to be made any required filings of a Notice and Report Form pursuant to the HSR Act and any other necessary Filings with Governmental Authorities within ten (10) Business Days after the date hereof, including, but not limited to, any required foreign Antitrust Law or foreign direct investment Filings. Parent, the Company, and the Company Securityholders each shall, and shall cause its Subsidiaries and controlled Affiliates to, (a) promptly supply the other party with any information which may be required in order to effectuate such filings; (b) respond as promptly as practicable to any inquiry received from FTC, DOJ, or any other Governmental Authority for additional information or documentation; and (c) take all other actions necessary or desirable to cause the expiration or termination of the applicable waiting periods under the HSR Act and any other applicable Antitrust Laws as promptly as practicable. Each of Parent, the Company, and the Company SubsidiariesSecurityholders shall (i) promptly notify the other party of any material communication between that party and FTC, DOJ, or any other Governmental Authority and, subject to applicable Legal Requirements, discuss with and permit the other party to review in advance any proposed written communication to any of the foregoing; (ii) consult with the other party in advance of participating in any meeting or discussion with FTC, DOJ, or any other Governmental Authority with respect to any filing, investigation or inquiry concerning the transactions contemplated hereby and, to the extent permitted by such Governmental Authority, give the other party the opportunity to attend and participate thereat; and (iii) subject to applicable Legal Requirements, furnish the other party with copies of all written correspondence and communications between it or its Affiliates and their respective Representatives and any Governmental Authority with respect to the transactions contemplated by this Agreement; provided, however, that materials provided to the other party pursuant to this Section 6.10(b) may be redacted (x) to remove references concerning valuation or future plans for the Business, (y) as necessary to comply with contractual obligations of confidentiality and (z) as necessary to address reasonable privilege concerns; provided, further, that the parties may, as they deem advisable, designate any competitively sensitive materials provided to the other under this Section 6.10 or any other Section of this Agreement as "outside counsel only." Such materials and the information contained therein shall be given only to outside counsel for the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient without the prior written consent of the party providing such materials. Subject to Section 6.10(c), and upon the terms and conditions set forth herein, each of the parties shall use reasonable best efforts to take, or cause to be taken, all such actions and to do, or cause to be done, all things and to assist and cooperate with the other parties in doing, such things, necessary, proper or advisable under applicable Law to consummate make effective the Transactionstransactions contemplated hereby, including the Merger, as soon as practicable after the date hereof (and in any event by the Outside Date), including (i) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably 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 reasonably practicable (and in any event by the Outside Date) 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 Transactions, including the Merger, and (ii) taking all steps as may be necessary, subject to the limitations in this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation obtaining confirmation of the foregoing, each Party, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the any applicable waiting period periods under the HSR Act, clearances and approvals, if any, from the Governmental Authorities set forth in Schedule 9.1(b), resolving any investigation or other inquiry of any Governmental Authority, providing supplemental information requested by a Governmental Authority, avoiding any suit, Claim, action, investigation or proceeding of any Governmental Authority arising from its review of the transactions contemplated hereby and defending any suit, Claim, action or proceeding initiated by any Governmental Authority or Third Party under applicable Antitrust Laws for the purpose of preventing the consummation of the of the transactions contemplated hereby. Parent, the Company, and the Securityholders each shall be responsible for paying one-half (1/2) of each of the respective filing fees required to complete each of the merger filings under the HSR Act as soon as reasonably practicable and any other Antitrust Laws of any jurisdiction where a filing is required in accordance with this Section 6.10(b) in connection with the transactions contemplated hereby.
(and in any event by the Outside Datec) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything herein to the contrary set forth contrary, nothing contained in this Agreement, none of Parent, Merger Sub Agreement shall require or obligate Parent or any of their respective Subsidiaries shall be required its Affiliates to, and neither the Company may not, and not permit any Company Subsidiary tonor its Affiliates or Representatives shall, without the prior written consent of Parent: (i) commence any litigation with any Governmental Authority or third party; (ii) commit, agree or otherwise become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirementrestriction, condition, limitation, understanding, agreement limitation or order other understanding on or with respect to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business of Parent or portion any of its Affiliates or the business of the Company, Company that would be material to the Surviving Company, business of Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on its Affiliates and the Company, taken as a whole; (iii) agree or otherwise be required to license, sell or otherwise dispose of, hold separate (through the Surviving Companyestablishment of a trust or otherwise), Parent, Merger Sub or any Subsidiary divest itself of any business, assets or operations of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company Parent or any of their respective Subsidiaries its Affiliates or the business of all or any portion the Company that would be material to the business of their respective businesses as presently conducted and as currently proposed to be conductedParent, Parent (its Affiliates and the Parent SubsidiariesCompany, taken as a whole; or (iv) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts pay or commit to defend or contest, including through litigation pay any material amount of cash or other means, any objection toconsideration, or Actions challenging, the consummation of the Transactions, and incur or commit to have vacated, lifted, reversed or overturned incur any decree, judgment, injunction material Liability or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Transactions, including the Merger.
(b) Each of Parent and the Company shallobligation, in connection with obtaining any Consent, Permit or Order. For the avoidance of doubt, the matters disclosed on Schedule 6.2(b)(v)(A) shall not be prevented by this Section 6.10(c).
(d) Neither Parent nor the Company, including their respective Subsidiaries and Affiliates, shall, without limiting the efforts referenced in Section 6.2(a) prior written consent of the other party (not to obtain all waiting period expirations be unreasonably withheld, delayed or terminationsconditioned), consentsenter into any Contract, clearancesincluding any timing agreement, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or with any other Regulatory Law, Governmental Authority (i) cooperate in all respectsthat would, including by furnishing to or would reasonably be expected to, delay the other as promptly as practicable information and assistance as Closing beyond the other may reasonably request, and consult with each other in connection with any filing End Date or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform not to effect the other Party of any communication received by such Party fromClosing before a date that is after the End Date.
(e) Without limiting the foregoing, in no event shall Parent effect, or given by such Party topermit any of its Subsidiaries or controlled Affiliates to effect, the Antitrust Division of the Department of Justice any transaction, or enter into any agreement to effect any transaction (the “DOJ”including any merger or acquisition), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies that would reasonably be expected to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning impose any material delay in the valuation obtaining, or materially increase the risk of Parentnot obtaining, Company the expiration or termination of any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all applicable waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and Antitrust Laws; (ii) any decision to enter into, and materially increase the contents of, any agreement (including a timing agreement) with risk of any Governmental Entity to delay and not to consummate Authority seeking or entering any injunction or other order or decree prohibiting the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views consummation of the Company.
transactions contemplated by this Agreement; (ciii) In connection with and without limiting materially increase the foregoing, in risk of not being able to remove any such injunction or other order or decree on appeal or otherwise; or (iv) prevent the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each consummation of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested transactions contemplated by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing)this Agreement.
Appears in 1 contract
Sources: Merger Agreement (Inotiv, Inc.)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, Parent (and each of the Parent Subsidiaries) and the Company (and the Company Subsidiaries) parties to this Agreement shall use 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 Laws to consummate and make effective the Transactions, including Merger and the Merger, as soon as practicable after the date hereof (and in any event other transactions contemplated by the Outside Date)this Agreement, including (i) preparing the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, and filing expirations or otherwise providingterminations 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 consultation connection with the Merger, (iii) the defending of any lawsuits or other Party legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger and as promptly as reasonably practicable the other transactions contemplated by this Agreement and advisable (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Parent, the Company, 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 or approval required for the consummation of the transactions contemplated by this Agreement under any Contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the Company, Parent and Merger Sub shall (i) promptly, but in no event later than ten (10) Business Days after the date hereof, file any and all documentation to effect all necessary applicationsrequired notification and report forms under the HSR Act, notices, petitions, filings and other documents and to obtain file as promptly as reasonably practicable (and in any event by the Outside Date) all waiting period expirations or terminationsother filings and/or notifications under other applicable Antitrust Laws, 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 Transactions, including the Merger, and (ii) taking all steps as may be necessary, subject to the limitations in this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation of the foregoing, each Party, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicableMerger and the other transactions contemplated by this Agreement, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary use their reasonable best efforts to cause the expiration or termination of the any applicable waiting period periods under the HSR Act or any other Antitrust Law as soon as reasonably practicable possible, (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, to the extent reasonable and advisable, any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated by this Agreement, taking all such further action as may be necessary to resolve such objections, if any, as any Antitrust Authority may assert under any Antitrust Law (other than with respect to any Action by any stockholder related to this Agreement, the Merger or the other transactions contemplated by this Agreement) with respect to the transactions contemplated by this Agreement, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Merger so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the End Date), including (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the Outside Datesale, divestiture or disposition of any assets, product lines 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) or Affiliates’ businesses, product lines or assets, in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any suit or proceeding which would otherwise have the effect of preventing or delaying the Closing (each such action described in (x) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable), and a “Remedial Action”); provided, that neither Parent nor the Company shall take a Remedial Action without the other’s consent (not to supply as promptly as reasonably practicable and advisable any additional information and documentary materials be unreasonably withheld, delayed or conditioned); provided, further, that may be requested under any Regulatory Laws. Notwithstanding anything to neither the contrary set forth in this AgreementCompany, none of Parent, Merger Sub or nor any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, or consent to, or offer or agree to, take to or commit to otherwise take any action Remedial Action with respect to, any requirement, condition, limitation, understanding, agreement or order Order of a Governmental Entity to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any of, or to conduct, restrict, operate, invest or otherwise change the assets, business product lines or portion of business of the Companytheir respective businesses, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any unless such requirement, condition, limitation, understanding, agreement or order so long Order is conditioned upon the occurrence of the Closing. Except as such requirement, condition, limitation, understanding, agreement or order is only binding on otherwise permitted under this Agreement (including Section 6.1(b) of the Company Disclosure Letter), the Company, Parent and Merger Sub shall not (and shall cause their Subsidiaries and Affiliates not to) take or the Company Subsidiaries in the event agree to take any action that would be reasonably likely to prevent or materially delay the Closing occursbeyond the End Date. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by ParentWithout limiting their obligations under this Section 6.11, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent shall not (and the Parent Subsidiariesshall cause their Subsidiaries and Affiliates not to) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts agree to defend stay, toll or contest, including through litigation or other means, extend any objection toapplicable waiting period under any Antitrust Law, or Actions challenging, the consummation of the Transactions, and to have vacated, lifted, reversed withdraw or overturned refile 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, including the Merger.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions filing under the HSR Act or any other Regulatory Antitrust Law, without the prior written consent of the other party (which consent shall not be unreasonably withheld, delayed or conditioned).
(c) Without limiting in any respect each party’s obligations under this Section 6.11, each party shall exercise reasonable best efforts to cooperate (i) cooperate to direct, devise and implement the strategy for obtaining any necessary approval of, for responding to any request from, inquiry or investigation by (including directing the timing, nature and substance of all such responses), and participate in all respects, including by furnishing to the other as promptly as practicable information meetings and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, communications (including any proceeding initiated by a private partynegotiations) with, including by allowing the other Party any Antitrust Authority that has authority to have a reasonable opportunity to review in advance enforce any Antitrust Law and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform with respect to the other Party defense and settlement of any communication received litigation, action, suit, investigation or proceeding brought by such Party fromor before any Governmental Entity that has authority to enforce any Antitrust Law.
(d) Notwithstanding anything to the contrary in this Agreement, including, but not limited to, Section 6.11(b), nothing herein shall obligate Parent or the Company to propose, negotiate, commit to or effect any Remedial Action that, in the good-faith judgment of Parent or the Company, would result in the sale, divestiture, disposal, holding separate, or given by such Party toother disposition of assets, the Antitrust Division contracts, businesses or product lines of the Department Company, Parent or any of Justice their respective Subsidiaries (including the Surviving Corporation and its Subsidiaries) generating, in the aggregate, Revenues in an aggregate amount in excess of $10,000,000. “DOJ”Revenues” as used in this Section 6.11(d), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private partyshall mean, with respect to any other Personasset, and to contract, business or product line, gross revenues associated therewith for the extent not prohibited by the DOJtwelve months ended December 31, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat2019; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parentrevenues associated with any asset, Company business or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, product line that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which was not fully utilized during such material and the information contained therein period shall be given only to the outside antitrust counsel of the recipient and will not be disclosed by calculated as if such outside counsel to employeesasset, officers business or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Companyproduct line was fully utilized.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing).
Appears in 1 contract
Sources: Merger Agreement (Era Group Inc.)
Efforts. (a) Subject to the terms and conditions of this Agreement, Parent each of the parties hereto (and except the Parent Subsidiaries) and the Company (and the Company SubsidiariesEquityholders’ Representative) shall use their commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable necessary under applicable Law Applicable Laws to consummate the Transactions, including the Merger, as soon as practicable after the date hereof (and in any event transactions contemplated by the Outside Date)this Agreement, including (iand the Company shall not without Parent’s prior written consent) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably practicable and advisable after the date hereof, with any Governmental Authority or other third party all documentation to effect all necessary applicationsfilings, notices, petitions, filings statements, registrations, submissions of information, applications and other documents and to obtain as promptly as reasonably practicable (obtaining and in any event by the Outside Date) maintaining all waiting period expirations or terminationsapprovals, consents, clearances, waivers, licenses, orders, registrations, approvalspermits, permits authorizations and authorizations necessary or advisable other confirmations required to be obtained from any Governmental Authority or other third party and/or any Governmental Entity in order that are necessary, proper or advisable to consummate the Transactionstransactions contemplated by this Agreement ; provided that the parties hereto understand and agree that the commercially reasonable efforts of Parent or Company shall not be deemed to include (i) entering into any settlement, including undertaking, consent decree, stipulation or agreement with any Governmental Authority in connection with the Merger, and transactions contemplated hereby or (ii) divesting or otherwise holding separate (including by establishing a trust or otherwise), or taking all steps as may be necessary, subject any other action (or otherwise agreeing to the limitations in this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation do any of the foregoing) with respect to any of its or the Company Group’s or any of their respective Affiliates’ businesses, assets or properties. If required by the HSR Act and if the appropriate filing pursuant to the HSR Act has not been filed prior to the date hereof, each Party, as applicable, party agrees to (x) make, or cause to be made, 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, and in any event transactions contemplated by this Agreement within fifteen (15) 10 Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), hereof and to supply as promptly as reasonably practicable and advisable to the appropriate Governmental Authority any additional information and documentary materials material that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration Act. All filing fees associated with any governmental approval, filing or termination of the applicable waiting period period, in each case, under the HSR Act as soon as reasonably practicable (and required in any event by connection with the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicableexecution, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in delivery or performance of this Agreement, none of Parent, Merger Sub Agreement or any of their respective Subsidiaries other Transaction Document shall be required to, and split equally between the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(b) Each All analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals made by or on behalf of Parent and either party before any Governmental Authority or the Company shallstaff or regulators of any Governmental Authority, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminationstransactions contemplated hereunder (but, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under avoidance of doubt, not including any interactions between the HSR Act Company and Governmental Authorities in the ordinary course of business, any disclosure which is not permitted by law or any other Regulatory Law, (idisclosure containing confidential information) cooperate in all respects, including by furnishing shall be disclosed to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other party hereunder in advance of any in-person meetingfiling, telephone call submission or other meeting or conference (whether by video or otherwise) withattendance, it being the DOJintent that the parties will consult and cooperate with one another, and consider in good faith the FTC or any other Governmental Entity orviews of one another, in connection with any proceeding by a private partysuch analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments and proposals. Each party shall give notice to the other party with respect to any meeting, discussion, appearance or contact with any Governmental Authority or the staff or regulators of any Governmental Authority, with any other Person, and such notice being sufficient to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give provide the other Party party with the reasonable opportunity to attend and participate thereat; providedin such meeting, howeverdiscussion, that materials required to be provided pursuant to appearance or contact. Notwithstanding the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminationsshall, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision direct and control all aspects of the parties’ efforts to pull and refile gain regulatory clearance before any Governmental Filing Authority with respect to the transactions contemplated hereby, including any timing agreements, understandings or voluntarily extend commitments entered into with or made to any waiting period or review period under the HSR Act or any other applicable Regulatory Law Governmental Authority, and (ii) any decision take the lead in communicating with regulators and control the overall development of the positions to enter into, be taken and the contents of, regulatory actions to be requested in any agreement (including filing or submission with a timing agreement) Governmental Authority in connection with the transactions contemplated hereby and in connection with any Governmental Entity to delay and not to consummate the Transactionsinvestigation or other inquiry or litigation by or before, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar feenegotiations with, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing)Governmental Authority with respect thereto.
Appears in 1 contract
Sources: Agreement and Plan of Merger (Signify Health, Inc.)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, Parent each of the parties hereto shall, and shall cause their respective Affiliates to, use all reasonable best efforts to promptly take, or cause to be taken, all actions, and to promptly do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Merger and the other transactions contemplated by this Agreement in the most expeditious manner possible after the date hereof and in any event prior to the End Date, including (i) causing the conditions to the Closing set forth in Article 6 to be satisfied, (ii) the obtaining and maintaining of all necessary actions or non-actions, waivers, consents (including such consents set forth on Section 5.7(a)(ii) of the Company Disclosure Schedule), clearances, approvals and expirations or terminations of waiting periods, including the Specified Approvals and the Parent Subsidiaries) Approvals, from Governmental Entities and the Company (making of all necessary registrations, notifications and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (iii) the obtaining and maintaining of all necessary consents, approvals or waivers from third parties, and (iv) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, that in no event shall the Company Subsidiariesor 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 herein provided, and in furtherance and not in limitation of the obligations set forth in this Agreement, the Company, Parent or its Subsidiaries and Antitrust Affiliates, and Merger Sub, as applicable, shall (i) promptly, but in no event later than fifteen (15) Business Days after the date hereof, make all necessary filings to obtain any consents, permits, authorizations, waivers, clearances, approvals or expirations or terminations of waiting periods from or with respect to the FCC that are required in connection with the Merger and the other transactions contemplated by this Agreement (the “FCC Applications”), (ii) promptly, but in no event later than thirty (30) Business Days after the date hereof, make all necessary filings to obtain any consents, permits, authorizations, waivers, clearances, approvals or expirations or terminations of waiting periods from or with respect to the LFAs that are required in connection with the Merger and the other transactions contemplated by this Agreement, (iii) promptly, but in no event later than thirty (30) Business Days after the date hereof, make all necessary filings to obtain any consents, permits, authorizations, waivers, clearances, approvals or expirations or terminations of waiting periods from or with respect to the State PUCs, (iv) promptly, but in no event later than fifteen (15) Business Days after the date hereof, submit a filing (or draft thereof) with the European Commission; (v) use all reasonable best efforts to cooperate with each other in (A) determining whether any other filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, or with respect to, any third parties or Governmental Entities, including under other applicable Antitrust Laws or Communications Laws and/or in connection with the Specified Approvals and Parent Approvals, in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (B) promptly making all such filings, and (vi) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity. Subject to the terms and conditions herein provided, and in furtherance and not in limitation of the obligations set forth in this Agreement, the Company, Parent or its Subsidiaries and Merger Sub, as applicable, shall use reasonable best efforts to take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking such further action (other than litigation) 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, the FCC, any State PUC, any LFA or any other Governmental Entity or other Person may assert under any Law (including in connection with the Specified Approvals and Parent Approvals) with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Merger so as to enable the Closing to occur as promptly as practicable after the date hereof (and in any event no later than the End Date). Notwithstanding anything to the contrary contained in this Agreement (but subject to the proviso contained in this sentence), and in furtherance of and consistent with Parent’s reasonable best efforts under this Section 5.7, Parent or its Subsidiaries shall take, and shall cause to be taken, all actions, and shall do, or cause to be done, all things necessary, proper or advisable under applicable Law advisable, with respect to consummate the Transactions, Parent or its Subsidiaries (including the Merger, as soon as practicable after the date hereof Company and its Subsidiaries) to eliminate each and every impediment under any Antitrust Law that is asserted by any Governmental Bodies (and in any event by the Outside Dateincluding Regulatory Authorities), including (i) preparing to obtain the consent or cooperation of any other Person, and filing or otherwise providingto permit and cause the satisfaction of the conditions set forth in Section 6.1(c), in consultation with each of the other Party and foregoing cases, to permit the Closing to occur as promptly as reasonably practicable and advisable in any event prior to the End Date, 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 the Company or its Subsidiaries, (y) otherwise taking or committing to take any actions that after the date hereofClosing Date would limit Parent’s, all documentation the Company’s or their Subsidiaries’ freedom of action with respect to, or their ability to retain or hold, directly or indirectly, the equity interests, assets (whether tangible or intangible), products, or businesses of the Company and/or its Subsidiaries, or (z) creating, terminating or divesting relationships, ventures, contractual rights or obligations of the Company or its Subsidiaries, in each case as may be required in order to avoid the entry of, or to effect all necessary applicationsthe dissolution of, any injunction, temporary restraining order or other order in any Action that would otherwise have the effect of preventing or delaying the Closing (each of clauses (x)-(z) a “Remedy Action”); provided that (A) Parent or its Subsidiaries, and Merger Sub shall not be required to propose, commit to, effect or agree to, any Remedy Action that individually or in the aggregate has had or would reasonably be expected to have a material adverse effect on the financial condition or current operations of either (x) the Company and its Subsidiaries, taken as a whole, or (y) Parent and its Subsidiaries, taken as a whole, in each case as measured relative to the size of the Company regardless of whether such actions are imposed on, or affect Parent and its Affiliates or the Company and its Subsidiaries; and (B) the Company shall only be required to take or commit to take any action, or agree to any condition or restriction as requested by Parent pursuant to this Section 5.7, if such action, commitment, agreement, condition or restriction is binding on the Company only in the event the Closing occurs. Except as otherwise permitted under this Agreement, the Company, Parent and Merger Sub shall not (and shall cause their Subsidiaries not to) take or agree to take any action that would be reasonably likely to prevent or materially delay the Closing. In the event that any information in the filings submitted pursuant to this Section 5.7(b) or any such supplemental information furnished in connection therewith is deemed confidential by either party, the parties shall use their reasonable best efforts to maintain the confidentiality of the same, and the parties shall seek authorization from the applicable Governmental Entity to withhold such information from public view. Neither Parent, Merger Sub nor any of their Subsidiaries or Affiliates will withdraw any notices, petitionsreports, filings or applications with any Governmental Entity relating to the Merger, enter into any timing agreement or agreement not to consummate the Merger for any period of time, or otherwise commit to or agree with any Governmental Entity to stay, toll or extend any applicable waiting period under any applicable Law without the Company’s prior written consent (which may not be given other than at the direction of the Special Committee).
(c) Between the date hereof and the earlier of the Effective Time and the Termination Date, Parent and Merger Sub shall not, and shall not permit the Equity Investors or any of their Subsidiaries or Affiliates or Antitrust Affiliates to, enter into any binding Contracts to acquire (by stock purchase, merger, consolidation, purchase of assets, license or otherwise) any ownership interests in any Person providing broadband services (i.e., highspeed data, cable television, or digital telephony services) to residential customers in any of the same counties or cities in which the Company or any of its Subsidiaries provides broadband services to residential customers as of the date of this Agreement, to the extent that such acquisition would be reasonably expected to (x) prevent the obtaining of, or result in not obtaining prior to the End Date, any authorizations, consents, orders, declarations or approvals of any Governmental Entity or the expiration or termination of any applicable waiting period necessary to consummate the transactions contemplated by this Agreement, or (y) materially increase the risk of any Governmental Entity entering an order, ruling, judgment or injunction prohibiting the consummation of the Merger or the other documents transactions contemplated by this Agreement, or of the failure to be satisfied of any conditions set forth in Section 6.1 (any such Contract or acquisition, a “Specified Parent Acquisition”). Parent shall cause its and its Affiliates’ respective partners, equityholders, investment professionals or executives, as applicable, to obtain cooperate in responding as promptly as reasonably practicable to any investigation or other inquiry from a Governmental Entity, including by providing any such information (including financial information) in connection with such investigation or inquiry.
(d) The Company, Parent and Merger Sub shall cooperate and consult with each other in connection with the making of all registrations, filings, notifications, communications, submissions and any event other actions pursuant to this Section 5.7, and, subject to applicable legal limitations, 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 using commercially reasonable efforts to promptly furnish the other with copies of notices or other communications (or, if not in writing, advise the other party orally of such notices or communications) received by the Outside Date) all waiting period expirations Company or terminationsParent, consentsas the case may be, clearancesor any of their respective Subsidiaries or Antitrust Affiliates, 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 Transactions, including the Merger, and (ii) taking all steps as may be necessary, subject to the limitations in this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation of the foregoing, each Party, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and such transactions. Subject to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant applicable Law relating to the HSR Act and to take all other actions necessary to cause the expiration or termination exchange of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicableinformation, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Companyone hand, the Surviving Companyand Parent and Merger Sub, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Companyother hand, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations permit counsel for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a party reasonable opportunity to review in advance advance, and comment on drafts of filings and submissions and reasonably considering consider in good faith comments the views of the other Partyparty in connection with, (ii) promptly inform the other Party of any proposed notifications or filings and any written communications or submissions, and with respect to any such notification, filing, written communication received by such Party fromor submission, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other documents submitted therewith to any Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material materials provided to the other under this Section 6.2(b5.7(c) as “Outside Counsel Only Material.” which such 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 on the one hand or the Company on Company, as the othercase may be) or its legal counsel. Notwithstanding anything to the contrary in this Agreement Section 5.7, materials provided pursuant to this Section 5.7 may be redacted (x) to remove references concerning the contraryvaluation of the businesses of the Company and its Subsidiaries, Parent shall be entitled or proposals from third parties with respect thereto, (y) as necessary to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law comply with contractual agreements and (iiz) as necessary to address reasonable privilege or confidentiality concerns. Each of the Company, P▇▇▇▇▇ and M▇▇▇▇▇ Sub agrees not to participate in any decision to enter intomeeting or discussion, and the contents ofin person, any agreement (including a timing agreement) by videoconference or by telephone, with any Governmental Entity to delay and not to consummate in connection with the Transactionsproposed transactions unless it consults with the other party in advance, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider considers in good faith the views of the Companyother 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.
(ce) In furtherance and not in limitation of the covenants of the parties contained in this Agreement, including 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 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, 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 transactions contemplated by this Agreement.
(f) Each party shall bear its own expenses in connection with the preparation, filing, and without limiting prosecution of the foregoingFCC Applications and any filings made with State PUCs and LFAs pursuant to Section 5.7(b), in the event except that Parent requests is responsible for all filing fees associated with any such filings as set forth in, and subject to, Section 8.2.
(g) Subject to the Company to do soterms and conditions herein provided, and in furtherance and not in limitation of the obligations set forth in this Agreement, the Company shall give any notices use its commercially reasonable efforts to third parties required under Contracts, and the Company shall use, and cause apply for renewal of each Franchise set forth on Section 5.7(g) of the Company Subsidiaries to useDisclosure Schedule and pursue such applications diligently. The Company, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate Parent and Merger Sub shall cooperate and consult with each other in connection with the Transactionsmaking of all registrations, including the Merger. Notwithstanding anything to the contrary hereinfilings, none of Parentnotifications, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar feecommunications, payment or consideration, make submissions and any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, actions in connection with renewing the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing)Franchises.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, Parent each Party shall use (and the Parent Subsidiariesshall cause its Subsidiaries and Control Affiliates to use) and the Company (and the Company Subsidiaries) shall use its reasonable best efforts (subject to, and in accordance with, applicable Law) to taketake promptly, or cause to be takentaken promptly, all actions actions, and to dodo promptly, or cause to be donedone promptly, and to assist and cooperate with the other Parties in doing, all things necessary, proper or advisable on its part under this Agreement and applicable Law Laws to consummate and make effective the Transactions, including Merger and the Merger, as soon as practicable after the date hereof (and in any event by the Outside Date)other transactions contemplated hereby, including (i) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably practicable and advisable after the date hereof, all documentation to effect all necessary applications, material notices, petitions, filings reports and other documents filings and to obtain as promptly as reasonably practicable (and in any event by the Outside Date) all waiting period expirations or terminations, material consents, clearancesapprovals, registrations, authorizations, waivers, licenses, orders, registrations, approvals, permits Permits and authorizations Orders necessary or advisable to be obtained from any third party and/or (including any Governmental Entity Entity) in order to consummate the Transactions, including Merger and the Merger, other transactions contemplated by this Agreement and (ii) taking all steps as may defending against and resolving any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger or any of the other transactions contemplated by this Agreement; provided, however, that in no event shall the Company or any of its Subsidiaries be necessaryrequired to, subject prior to the limitations in this Section 6.2Effective Time, pay any fee, penalty or other consideration to obtain all such waiting period expirations any third party (other than any filing fee payable to a Governmental Entity) for any consent or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation approval required under any Contract or other arrangement for the consummation of the foregoingMerger or any of the other transactions contemplated by this Agreement; provided, further, the Company and its Subsidiaries shall agree to pay any such fee, penalty or other consideration to the extent reasonably directed by the Parent so long as any such fee, penalty or other consideration is not due unless the Closing occurs or the Parent advances or reimburses (promptly upon the request of the Company) the Company and its Subsidiaries for the full amount of any such fee, penalty or other consideration and the Parent shall indemnify and hold harmless the Company, its Subsidiaries and its and their Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments and penalties suffered or incurred by them in connection with the payment of any such fee, penalty or other consideration.
(b) Without limiting the generality of Section 5.5(a), each PartyParty shall (and shall cause their respective Subsidiaries and Control Affiliates), as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after practicable following the execution of this Agreement and before the expiration of any relevant legal deadline, make or cause to be made all premerger notification filings required of each of them or any of their respective Subsidiaries or Control Affiliates, including, not later than the tenth (unless a later 10th) Business Day after the date is mutually agreed between hereof, the Partiesnotification and report form required under the HSR Act. All filing fees payable in connection therewith shall be borne by the Parent.
(c) Without limiting the generality of Section 5.5(a), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and each Party shall use its reasonable best efforts to take or cause to be taken all other actions necessary necessary, including to comply promptly and fully with any inquiries or requests for information from Governmental Entities, to cause the expiration or termination of the any applicable waiting period periods under the HSR Act, and to obtain any clearance, waiver, approval or authorization required under the HSR Act as soon as reasonably practicable and any other applicable Laws, in each case, in order to consummate the Merger and the other transactions contemplated by this Agreement.
(d) Each Party shall, subject to applicable Law, (i) to the extent practicable, promptly notify the other Party of any communication to that Party from any Governmental Entity (including the Federal Trade Commission and the Antitrust Division of the Department of Justice) with respect to this Agreement and the transactions contemplated hereby and permit the other Parties to review in advance any proposed written communication to any Governmental Entity, (ii) not agree to participate in any meeting with any Governmental Entity in respect of any filings, investigation or other inquiry with respect to this Agreement and the transactions contemplated hereby unless 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 participate thereat, in each case, to the extent practicable, (iii) furnish the other Party with copies of all written correspondence, filings and communications (and in memoranda setting forth the substance thereof) between it and its Subsidiaries and Control Affiliates and their respective Representatives, on the one hand, and any event Governmental Entity or members of its staff, on the other hand, with respect to this Agreement and the transactions contemplated hereby (excluding documents and communications which are subject to preexisting confidentiality agreements and to the attorney-client privilege or work product doctrine, provided, that the Parties shall use reasonable best efforts to minimize the scope of this parenthetical by the Outside Dateentering into reasonable joint defense arrangements) and (yiv) make all furnish the other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional Party with such information and documentary materials that assistance as the other Party and its Subsidiaries and Control Affiliates may reasonably request in connection with their preparation of necessary filings, registrations, or submissions of information to any Governmental Entities in connection with this Agreement and the transactions contemplated hereby, including any filings necessary or appropriate under the HSR Act and any other applicable Laws.
(e) Each Party shall use its reasonable best efforts to resolve such objections, if any, as may be requested asserted with respect to the transactions contemplated hereby under the HSR Act and any Regulatory other applicable Laws. Notwithstanding anything Subject to the contrary set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. FurtherSection 5.17, if any Action, including any proceeding Action by a private party, is instituted (or threatenedthreatened to be instituted) challenging or seeking to restrainthe transactions contemplated hereby as violative of any applicable Law, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of each Party shall reasonably cooperate in all or any portion of their respective businesses as presently conducted respects with each other and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their its reasonable best efforts to defend or contest, including through litigation or other means, contest and resist any objection to, or Actions challenging, the consummation of the Transactions, such Action and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other orderOrder, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Transactionstransactions contemplated by this Agreement, including the Mergerby pursuing all reasonable avenues of administrative and judicial appeal.
(bf) Each In furtherance and not in limitation of the foregoing, the Parent and its Subsidiaries and Control Affiliates shall (i) propose, negotiate, commit to and agree to effect, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of such assets or businesses of the Company shallor its Subsidiaries and (ii) otherwise take or commit to take actions that after the Closing Date would limit the freedom of action of the Parent, its Subsidiaries (including the Surviving Corporation and its Subsidiaries) or its Control Affiliates with respect to, or their ability to retain, one or more of the businesses, product lines or assets of the Parent, its Subsidiaries (including the Surviving Corporation and its Subsidiaries) or its Control Affiliates, in each case, as may be required in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any Action which would otherwise have the effect of preventing or materially delaying the Closing; provided, that nothing in this Section 5.5 or in any other provision of this Agreement shall require the Parent or any of its Subsidiaries or Control Affiliates, in connection with and without limiting obtaining any consent, approval, registration, authorization, waiver, Permit or Order from any Governmental Entity, to propose, negotiate, commit to or agree to effect the efforts referenced in Section 6.2(asale, divestiture or disposition of any assets or businesses or to take or commit to take actions that would limit their (or, after the Closing, the Surviving Corporations’ or its Subsidiaries’) freedom of action with respect to, or their (or, after the Closing, the Surviving Corporations’ or its Subsidiaries’) ability to obtain all waiting period expirations retain, any businesses, product lines or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, assets (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing effectiveness or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts consummation of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent which is not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent conditioned on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent occurring or (ii) subject that would result in a material adverse effect on the Company and its Subsidiaries, taken as a whole, or on the Parent and its Subsidiaries (including the Surviving Corporation and its Subsidiaries), taken as a whole. Notwithstanding the foregoing, the Parent, its Subsidiaries and its Control Affiliates shall not propose, negotiate, commit to or agree to effect the occurrence sale, divestiture or disposition of any assets or businesses or to take or commit to take actions that would limit the Closing)Company’s or its Subsidiaries’ freedom of action with respect to, or their ability to retain, any businesses, product lines or assets the effectiveness or consummation of which is not conditioned on the Closing occurring.
Appears in 1 contract
Sources: Merger Agreement (National Financial Partners Corp)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, Parent (and each of the Parent Subsidiaries) and the Company (and the Company Subsidiaries) parties hereto shall use its reasonable best efforts to take, or cause to be taken, all actions the actions, and to do, or cause to be done, all and to assist and cooperate with the other parties in doing, the things necessary, proper or advisable under applicable Law Laws and regulations or otherwise to consummate and make effective the TransactionsTransactions as promptly as practicable, including the Merger, as soon as practicable after the date hereof (and in any event by the Outside Date), including using reasonable best efforts to (i) preparing obtain the necessary actions or non-actions, waivers, consents, clearances, approvals, and filing expirations or otherwise providingterminations of waiting periods from Governmental Authorities and make the necessary registrations and filings and take the steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Authority, including, without limitation, in consultation connection with any Regulatory Law (all of the foregoing, collectively, the “Governmental Consents”), and (ii) obtain all necessary consents, approvals or waivers from, and deliver notices to, third parties. The parties acknowledge and agree that their obligations to use their reasonable best efforts as set forth in this Section 7.10(a) shall include those obligations set forth on the Efforts Schedule.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, Parent, Seller and Buyer shall cooperate with each other Party in (i) determining whether any filings are required to be made with, or Governmental Consents are required to be obtained from, any Governmental Authorities (including in any foreign jurisdiction in which the Company or any Company Subsidiaries are operating any business) and as promptly as reasonably practicable and advisable after (ii) to the extent not made prior to the date hereof, timely making or causing to be made all documentation to effect all necessary applicationssuch applications and filings as reasonably determined by Parent, notices, petitions, filings Seller and other documents and to obtain Buyer as promptly as reasonably practicable (and in any event by the Outside Date) 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 Transactions, including the Merger, and within ten (ii) taking all steps as may be necessary, subject to the limitations in this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation of the foregoing, each Party, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (1510) Business Days after the execution of this Agreement (unless a later date is mutually agreed between hereof with respect to filings or submissions required under the PartiesHSR Act), and . Each party shall use reasonable best efforts to supply as promptly as reasonably practicable and advisable any additional information and documentary materials such information, documentation, other material or testimony that may be requested pursuant to requested, and the HSR Act and to take all other actions necessary to cause the expiration or termination provision of the applicable waiting period under the HSR Act which is required, by any Governmental Authority, including by complying as soon as reasonably practicable with any request under or with respect to the HSR Act, any other Governmental Consent and any such other applicable Laws for additional information, documents or other materials received by Buyer or any of its Subsidiaries, on the one hand, or Parent or Seller or any of their respective Subsidiaries, on the other hand, from the FTC or the DOJ, or any other Governmental Authority in connection with such applications or filings or the Transactions.
(and in any event by the Outside Datec) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreementherein, none Buyer will not be required to propose, negotiate, commit to or effect, by agreement, consent decree, hold separate order, trust or otherwise, (i) the sale, divestiture or disposition of Parentsuch assets, Merger Sub businesses, services, products or product lines of Buyer or the Company (or any of their respective Subsidiaries shall be required toor Affiliates) or behavioral limitations, and conduct restrictions or commitments with respect to any such assets, businesses, services, products or product lines of Buyer or the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing their respective Subsidiaries or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (BAffiliates), such restriction(ii) the creation or termination of relationships, requirement ventures, contractual rights or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary obligations of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Buyer or their respective Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take Affiliates and (iii) any other actions that would limit the freedom of action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by ParentBuyer, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection Affiliates with respect to, or Actions challengingits ability to retain, one or more of its or its Subsidiaries’ (including the Company’s) or Affiliates’ assets, businesses, services, products or product lines, or, in the event that any litigation is instituted which could have the effect of preventing the consummation of the Transactions, and defend any such litigation. Neither Parent nor Seller nor any of their Subsidiaries shall, without Buyer’s prior written consent, discuss or commit to have vacatedany extension of any waiting period under any Law or any agreement not to consummate the Transactions or otherwise take or commit to take any action that limits Buyer’s freedom of action with respect to, liftedor Buyer’s ability to retain, reversed any of the businesses, services, products or overturned product lines of the Company (or any decreeof its Subsidiaries or Affiliates) or otherwise receive the full benefits of this Agreement. None of Parent, judgmentSeller, injunction Buyer or other order, whether temporary, preliminary or permanent, that the Company shall be required to take any action pursuant to this Section 7.10 unless it is in effect and that prohibits, prevents or restricts consummation expressly conditioned on the effectiveness of the Transactions, including the Merger.
(bd) Each Without limiting the foregoing and subject to applicable legal limitations and the instructions of any Governmental Authority, each of Parent and Seller, on the Company shallone hand, and Buyer, on the other hand, agrees (i) to cooperate and consult with each other in connection with the making of all registrations, filings, notifications, communications, submissions and without limiting the efforts referenced in any other material actions pursuant to this Section 6.2(a7.10, (ii) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing furnish to the other as promptly as practicable such necessary information and assistance as the other may reasonably request, and consult with each other request in connection with its preparation of any filing notifications or submission and in connection filings, which is not otherwise legally privileged or considered commercially sensitive, (iii) to keep each other apprised of the status of matters relating to the completion of the Transactions, including promptly furnishing the other with any investigation copies of notices or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication communications received by such Party party from, or given by such Party party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other third party and/or any Governmental Entity, by promptly providing copies Authority with respect to the Transactions, (iv) to permit the other Party of party to review and to incorporate the other party’s reasonable comments in any such written communicationsmaterial communication to be given by it to any Governmental Authority with respect to obtaining the necessary approvals for the Transactions, and of (v) not to participate in any communication received meeting or given discussion in person or by telephone expected to address substantive matters related to the Transactions with any Governmental Authority in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives tounless, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJsuch Governmental Authority, the FTC or other applicable Governmental Entity or other Person, give it gives the other Party party reasonable notice thereof and the reasonable opportunity to attend and participate thereat; providedobserve. To the extent the parties shall share, howeverin their sole discretion, that materials required to be provided information protected under the attorney-client privilege, work product doctrine, joint defense privilege or any other privilege pursuant to this Section 7.10, the foregoing clauses (i) - (iii) may be redacted (A) parties shall take reasonable efforts to remove references concerning the valuation of Parentshare such information in a manner so as to preserve any applicable privilege. Buyer, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company Seller may, as each deems advisable and necessary, reasonably designate any competitively or commercially sensitive material provided to the other under this Section 6.2(b7.10(d) as “Outside Antitrust Counsel Only Material.” which such 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 (Buyer, or Parent on or Seller, as the one hand or the Company on the othercase may be) or its legal counsel. Notwithstanding anything in .
(e) For purposes of this Agreement to Agreement, “Regulatory Law” means the contrary▇▇▇▇▇▇▇ Act, Parent shall be entitled to lead the strategy ▇▇▇▇▇▇▇ Act, the HSR Act, the Federal Trade Commission Act, the EC Merger Regulation, and course of action for seeking and obtaining all waiting period expirations other federal, state, foreign, multinational or terminationssupranational statutes, consentsrules, clearances, waivers, licensesregulations, orders, registrationsdecrees, approvalsadministrative and judicial doctrines and other Laws, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Lawincluding, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents ofwithout limitation, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactionsantitrust, providedcompetition or trade regulation Laws, that (x) at are designed or intended to prohibit, restrict or regulate actions having the time purpose or effect of entry into monopolization or restraint of trade or lessening competition through merger or acquisition and including any timing or similar agreement, the term thereof would not reasonably be expected Laws that relate to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Companyforeign investments.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing).
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Actua Corp)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, Parent Seller, the Company and Buyer shall use all reasonable best efforts to take promptly, or cause to be taken, all actions, and to do promptly, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Laws to consummate and make effective the Transactions and the other transactions contemplated by the Transaction Documents and the APA, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of 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 the Buyer Approvals, from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity; (ii) the obtaining of all necessary consents, approvals or waivers from third parties; (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging 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 and the Albertson’s Asset Purchase on the terms set forth in the Transaction Documents and the APA; provided that in no event shall Seller, Buyer, the Company or any 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 Buyer shall each be required to pay at the Effective Time 50% of any fees, penalties or other consideration that Seller, Buyer, the Company or any of the Company’s Subsidiaries is legally required to pay to any third party to obtain such party’s consent to or approval of the Transactions and the Albertson’s Asset Purchase, such payment not to exceed $10,000,000 by each of Seller and Buyer.
(b) Subject to the terms and conditions herein and without limiting the foregoing, Seller, the Company and Buyer shall (i) as promptly as practicable (and in any event within ten Business Days after the Parent Subsidiariesdate hereof) after the date hereof, file any and all required Notification and Report Forms under the HSR Act with respect to the Share Purchase and the Company other transactions contemplated by this Agreement, and use all reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act; (ii) use all reasonable best 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 third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the Company Subsidiariesconsummation of the transactions contemplated hereby; and (B) shall 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 any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity; and (iv) use reasonable best efforts to take, or cause to be taken, all other actions and to do, or cause to be done, all other things necessary, proper or advisable under applicable Law to consummate and make effective the Transactionstransactions contemplated hereby, including using reasonable best efforts to take all such further action as may be necessary to resolve such objections, if any, as the MergerUnited States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state antitrust enforcement authorities or any other person may assert under any Law with respect to the transactions contemplated hereby, so as to enable the Closing to occur as soon as practicable after the date hereof reasonably possible (and in any event by no later than the Outside End Date); provided, including (i) preparing and filing or otherwise providinghowever, in consultation with the other Party and as promptly as reasonably 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 reasonably practicable (and in any event by the Outside Date) 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 Transactions, including the Merger, and (ii) taking all steps as may be necessary, subject to the limitations in this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation of the foregoing, each Party, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding notwithstanding anything to the contrary set forth contained in this Agreement, none nothing in this Agreement (including, for the avoidance of Parentdoubt, Merger Sub this Section 5.5), shall require, or be construed to require Buyer or any of its Affiliates to proffer to, or agree to, sell, divest, lease, license, transfer, dispose of or otherwise encumber or hold separate and agree to sell, divest, transfer, dispose of or otherwise encumber 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, lease, license, transfer, disposition or other 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 shall be required toor 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 may noton the one hand, and not 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 Company Subsidiary toproposed notifications or filings and any written communications or submissions, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action and with respect toto any such notification, filing, written communication or submission, any requirementdocuments submitted therewith to any Governmental Entity; provided, conditionhowever, limitation, understanding, agreement that materials may be redacted by Seller or order the Company (i) to remove proposals from third parties with respect thereto; (Aii) sell, license, assign, transfer, divest, hold separate as necessary to comply with contractual agreements; and (iii) as necessary to address reasonable privilege or otherwise dispose of any assets, business or portion of business of confidentiality concerns. Seller and the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Companyone hand, the Surviving Companyand Buyer, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Companyother 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 Surviving Companyproposed transactions unless they consult with the other party in advance and, Parentto the extent not prohibited by such Governmental Entity, Merger Sub or any Subsidiary of any of give the foregoing or other party the Transactionsopportunity to attend and participate.
(d) Subject to the proviso in Section 5.5(b); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Actionadministrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatenedthreatened to be instituted) challenging any transaction contemplated by the Transaction Documents or seeking to restrainthe APA as violative of any Law, prohibit or place conditions Seller and the Company, on the consummation of one hand, and Buyer, on the Transactionsother hand, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of shall cooperate in all or any portion of their respective businesses as presently conducted respects with each other and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their respective reasonable best efforts to defend contest and resist any such action or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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 transactions. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.5 shall limit a party’s right to terminate this Agreement pursuant to Section 7.1(b) or 7.1(c) so long as such party has, prior to such termination, complied with its obligations under this Section 5.5.
(e) Without limiting any other obligation under this Agreement, prior to the Closing, neither Seller nor Buyer and nor their respective Subsidiaries and Affiliates shall, and shall cause their respective Subsidiaries and Affiliates not to, take or agree to take any action that would reasonably be expected to prevent or delay the parties from obtaining any Specified Approval, Buyer Approval, or other approval, clearance or waiver from any Governmental Entity in connection with the Transactions, including or to prevent or delay the Mergerconsummation of the Transactions.
(bf) Each For purposes of Parent and the Company shallthis Agreement, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, “reasonable best efforts” shall not require (i) cooperate in all respects, including by furnishing Buyer to (A) pay (or agree to pay) more for the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference Debt Financing (whether by video in interest rate, fees or otherwise) withthan 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, the DOJ, the FTC fees or otherwise resulting from any other Governmental Entity 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 with therewith (including after giving effect to any proceeding by a private party, with increase in interest rate or fees or otherwise resulting from any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereatlender flex provisions contained in such fee letter); provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and seek more capital than is committed in the Equity Commitment Letters; or (C) as necessary waive any condition or agree to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided changes to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law Commitment Letters; and (ii) Seller to (A) pay (or agree to pay) more for the Refinancing (whether in interest rate, fees or otherwise) than the terms set forth in the Refinancing Commitment Letters and any decision fee letter entered into by Seller in connection therewith (including after giving effect to enter intoany 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 agreements described in 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 contents of, any agreement (including a timing agreement) business with any Governmental Entity respect to delay the subject matter of such Lancaster/MRDC Agreement on the terms and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, conditions set forth in the term thereof would not reasonably be expected sheet attached to extend beyond this Agreement. The term sheet shall govern the parties’ rights and obligations with respect to such time as would allow subject matter until the parties sufficient time to consummate the Closing prior to the Outside Date and respective Lancaster/MRDC Agreement has been executed.
(yh) in doing so it must act reasonably and must consider The Parties shall work together in good faith the views to make commercially reasonable transition/supply arrangements in respect of the Company.
(cmatters set forth in Section 5.5(h) In connection with and without limiting of the foregoingSeller Disclosure Schedule, in addition to any related transition services in respect thereof to be provided under the event that Parent requests the Seller-Company to do so, the Company shall give any notices to third parties required under Contracts, TSA and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing)Seller-ABS TSA.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of At all times while this AgreementAgreement is in effect, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) Nuance shall use commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate exploit the Transactions, including Licence granted hereunder throughout the Merger, as soon as practicable after the date hereof (and in any event by the Outside Date), including (i) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably 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 reasonably practicable (and in any event by the Outside Date) 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 Transactions, including the Merger, and (ii) taking all steps as may be necessary, subject to the limitations in this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation of the foregoing, each Party, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory LawTerritory, including but not limited to directing (a) offering for sale the Products in a fashion so that they shall be sold on a timely basis; (b) maintaining a sales force sufficient in number and unilaterally determining (i) any decision appropriate training, skill or experience to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views provide effective distribution throughout all areas of the Company.
Territory (sales force can include independent sales representatives); (c) In connection with developing and without limiting the foregoing, maintaining good customer relations and advising Altamira immediately if Nuance becomes aware of any changes in the event that Parent requests market, Complaints (as defined in Schedule 4) or other claims by customers or others regarding Altamira or the Company Products, (d) complying with any and all of Altamira’s requirements relating to do soquality control, disposition of damaged Products, or other matters relevant to this Agreement as set out in Schedule 4; (e) making no false or misleading representations or engaging in any other unfair or deceptive trade practices with respect to the Company shall give Products; (f) making no public statements or remarks tending to denigrate the Products; and (g) complying with all Applicable Laws (as defined in Schedule 4), regulations and requirements in the performance of all Nuance’s obligations under this Agreement and in any notices to third parties required under Contractsdealings with the Products and customers. Altamira will facilitate the Development, Commercialization and Manufacturing of the Products in the Territory by providing Nuance access to, and a right of reference with respect to, all regulatory filings, applications, approvals, permits, data, registration dossiers and corresponding documentation controlled by Altamira or its affiliates and any materials or documents as required by competent regulatory authorities for the Company shall useregistration of the Products in the Territory at any time during the Term, to the extent necessary for the purposes of Developing, seeking and securing regulatory approvals for, and cause each Commercializing the Products in the Territory (the “Regulatory Support Documents”). Subject to the terms of this Agreement, during the Company Subsidiaries Term, Altamira will use reasonable efforts to usegrant Nuance access to, and a right of reference with respect to Regulatory Support Documents generated by any of Altamira’s licensees, to the extent Altamira has control of such Regulatory Support Documents. The foregoing rights include without limitation the right for Nuance and, to the extent permitted under this Agreement, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contractaffiliates and sublicensees, to obtain make copies of and reproduce such third party consents (except, in documentation and information for the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing)purposes set forth herein.
Appears in 1 contract
Sources: Licensing & Distribution Agreement (Altamira Therapeutics Ltd.)
Efforts. (a) Subject to From and after the terms and conditions of this Agreementdate hereof, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) Seller shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under any applicable Law to consummate the Transactions, including the Merger, as soon as practicable after the date hereof (and in any event by the Outside Date), including (i) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably practicable and advisable after the date hereof, all documentation to effect all necessary applications, notices, petitions, filings and other documents and to obtain make effective as promptly as reasonably practicable (and and, in any event by event, prior to the Outside Date) the Transaction and the other transactions contemplated by this Agreement, including (i) promptly preparing and filing of all waiting period expirations 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 or terminationsadvisable with any formal or informal request for information or documents by any Governmental Entity, including 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, 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 Transactions, including the Merger, and (ii) taking all steps as may be necessary, subject to the limitations in this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizationsauthorizations and other confirmations from any Governmental Entity necessary, orders proper or advisable to consummate the Transaction and approvalsthe other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement. In furtherance and not in limitation of Without limiting the foregoing, each Partybut subject to the proviso in the last sentence of this Section 5.1(a), as applicable, agrees to (x) makeParent and Seller shall take, or cause to be madetaken, an appropriate filing all actions necessary to obtain (and shall cooperate with each other in obtaining) any Antitrust Approvals (which actions shall include furnishing all information required in connection with such Antitrust Approvals) required to be obtained to satisfy the conditions set forth in Section 7.1(a) or Section 7.1(b) (in the case of a Notification Section 7.1(b), if the injunction, restraint or other Judgment relates to any Antitrust Law) and Report Form pursuant to consummate the HSR Act Transaction and the other transactions contemplated by this Agreement. Each of Parent and Seller shall use reasonable best efforts to take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the Transaction and the other transactions contemplated hereby, including taking all action as may be necessary to resolve such objections, if any, as any Governmental Entity or any other Person may assert under any Antitrust Law with respect to the Transactions transactions contemplated hereby, so as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after to enable the execution of this Agreement (unless a later date is mutually agreed between the Parties), and Closing to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act occur as soon as reasonably practicable (and in any event by no later than the Outside Date) and (y) make all other necessary filings under ), including, if doing so is a required condition for the Parties to secure any applicable Regulatory Law as promptly as reasonably practicableAntitrust Approval, and to supply as promptly as reasonably practicable and advisable proffering to, or agreeing to, sell, divest, lease, license, transfer, dispose of or otherwise encumber or hold separate, before or after the Closing, any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to assets, licenses, operations, rights, product lines, businesses or interests included in the contrary set forth in this Agreement, none Purchased Assets or of Parent, Merger Sub Parent or any of their respective Subsidiaries shall be required toits Affiliates (or consent to any sale, and the Company may notdivestiture, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) selllease, license, assign, transfer, divest, hold separate disposition or otherwise dispose other encumbering by the Seller Entities of any assets, business licenses, operations, rights, product lines, businesses or portion of business interests included in the Purchased Assets or to any agreement by any of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of 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 (Bii) impose any restriction, requirement or limitation on the operation of that would be material to the business or portion operations of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or Parent and its Subsidiaries will become subject to, consent to or offer or agree toSubsidiaries, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on to the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the MergerBusiness.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) The Parties shall cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and 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 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 Entity; (iii) consult and cooperate with, and consider in good faith the views of, one another in connection with any investigation analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or other inquiry, including any proceeding initiated submitted by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment or on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party behalf 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”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of proceedings under the Transactions and HSR Act or other Antitrust Law; (iiiiv) permit the other Party to review and discuss in advance any communication that it gives toadvance, and consult with each consider in good faith the views of the other Party in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) connection with, the DOJ, the FTC any proposed written (or any other material oral) communication with any such Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, (v) give the other Party reasonable advance notice of all meetings (whether in person or via video or telephone conference) with any Governmental Entity and unless prohibited by Law or such Governmental Entity, not attend or participate independently in any meeting with a Governmental Entity without providing reasonable advance notice to the reasonable other Party and an opportunity to attend and participate thereatin such meeting. Notwithstanding anything herein to the contrary, in the event that the Parties have differing views with respect to the handling of any reviews or investigations of the Transaction under any Antitrust Law, Parent shall have final decision-making authority on relevant strategy, timing and agreements with any Governmental Entity; provided, however, that materials required Parent shall not be permitted to make any such decisions in respect of strategy, timing and agreements with any Governmental Entity that would reasonably be provided pursuant expected to delay the consummation of the transactions contemplated by this Agreement to a date after the Outside Date, or would reasonably be expected to prevent the transactions contemplated by this Agreement from being consummated prior to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Outside Date. Parent and the Company Seller may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b5.2(b) as “Outside Counsel Only Materialoutside counsel only.” which such material Such materials and the information contained therein shall be given only to the outside antitrust legal 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 on or Seller, as the one hand or the Company on the othercase may be) or its legal counsel. Notwithstanding anything in Materials provided pursuant to this Agreement to the contrary, Parent shall Section 5.2(b) may be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining redacted (i) any decision to pull and refile any Governmental Filing remove references concerning the valuation of or voluntarily extend any waiting period or review period under future plans for the HSR Act or any other applicable Regulatory Law and Business; (ii) any decision as necessary to enter into, and the contents of, any agreement (including a timing agreement) comply with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date contractual obligations; and (yiii) in doing so it must act reasonably and must consider in good faith the views of the Companyas necessary to address reasonable privilege concerns.
(c) In connection with Additionally, and without limiting the foregoingspecific other obligations of the Parties set forth in this Agreement, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, Parent and Seller shall use its reasonable best efforts to obtain (i) execute and deliver any third party consents to any Contracts that are necessary additional instruments necessary, proper or advisable to consummate the Transactions, including Transaction and the Merger. Notwithstanding anything other transactions contemplated by this Agreement and to fully carry out the contrary herein, none purposes of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent this Agreement and either (i) reimbursed or indemnified for by Parent or (ii) subject fulfill all conditions precedent to this Agreement and shall not take, or permit any of its Affiliates to take, any action after the occurrence date of this Agreement that would reasonably be expected to prevent, impair or materially delay the Closing).
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of this Agreement, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall each Party will use 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 or causing to be done, all things necessary, proper or advisable under this Agreement and applicable Law Laws to consummate the Transactions, including Combination and the Merger, other transactions contemplated by the Transaction Documents as soon as practicable after the date hereof (and in any event by the Outside Date)hereof, including (i) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably practicable and advisable after the date hereof, all documentation to effect all necessary applications, notifications, notices, petitions, petitions and filings and other documents and to obtain as promptly as reasonably practicable (all Consents set forth in Section 5.4 of the Spinco Disclosure Schedule, Section 6.5 of the Spinco Disclosure Schedule and in any event by Section 7.5 of the Outside Date) Utah Disclosure Schedule that are required to be obtained or made at or prior to the Effective Time and all waiting period expirations or terminations, other material consents, clearances, waivers, licenses, orders, registrations, approvals, permits permits, rulings, expirations or terminations of waiting periods, authorizations and authorizations clearances necessary or advisable to be obtained from any third party and/or any Governmental Entity Authority in order to consummate the TransactionsCombination or any of the other transactions contemplated by the Transaction Documents (collectively, including the Merger“Approvals”), and (ii) taking all reasonable steps as may be necessary, subject to the limitations in this Section 6.2, necessary to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation of the foregoing, each Party, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions Approvals and (iii) permit taking reasonable efforts to share information protected from disclosure under the other Party to review in advance any communication that it gives toattorney-client privilege, and consult with each other in advance of any in-person meetingwork product doctrine, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC joint defense privilege or any other Governmental Entity or, privilege pursuant to this Section 8.7 in connection with any proceeding by a private partymanner so as to preserve the applicable privilege; provided that, with respect to Approvals from third parties (other than Governmental Authorities) required under existing Contracts, such efforts shall not include any other Person, and requirement or obligation of any Party to the extent make any payment to any such third party or assume any Liability not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials otherwise required to be provided paid or assumed by the applicable Party pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation terms of Parent, Company an existing Contract or offer or grant any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent financial accommodation or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, benefit to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing).not
Appears in 1 contract
Sources: Business Combination Agreement
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, Parent (and each of the Parent Subsidiaries) and the Company (and the Company Subsidiaries) parties hereto shall use 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 Laws to consummate and make effective the Transactions, including Merger and the Merger, as soon as practicable after the date hereof (and in any event other transactions contemplated by the Outside Date)this Agreement, including (i) preparing the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, and filing expirations or otherwise providingterminations of waiting periods, in consultation with 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 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 Party transactions contemplated by this Agreement and as promptly as reasonably practicable (iv) the execution and advisable delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall the Company, any of its Subsidiaries, or, subject to Section 6.12 and related provisions, Parent or Merger Sub be required to pay any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any Contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the Company, Parent and Merger Sub shall (i) promptly, but in no event later than ten (10) Business Days after the date hereof, file any and all documentation to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as reasonably practicable (and in any event by the Outside Date) 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 Transactions, including the Merger, and (ii) taking all steps as may be necessary, subject to the limitations in this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation of the foregoing, each Party, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a required Notification and Report Form pursuant to Forms under the HSR Act with respect to the Transactions as promptly as reasonably practicableMerger and the other transactions contemplated by this Agreement, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary use their reasonable best efforts to cause the expiration or termination of the any applicable waiting period periods under the HSR Act Act, (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 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 practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking 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 (other than with respect to any Action by any shareholder related to this Agreement, the Merger or the other transactions contemplated by this Agreement) with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Merger so as to enable the Closing to occur as soon as reasonably practicable possible (and in any event no later than the End Date), including (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the Outside Date) sale, divestiture or disposition of any assets or businesses of Parent or its Subsidiaries or Affiliates or of the Company or its Subsidiaries and (y) make all other necessary filings under otherwise taking or committing to take any applicable Regulatory Law 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) or Affiliates’ businesses, product lines or assets, in each case as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under required in order to avoid the entry of, or to effect the dissolution of, any Regulatory Laws. Notwithstanding anything to injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the contrary set forth in this Agreement, none effect of Parent, Merger Sub preventing or delaying the Closing; provided that neither the Company nor any of their respective its Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, or consent to, or offer or agree to, take to or commit to otherwise take any action with respect to, any requirement, condition, limitation, understanding, agreement or order of a Governmental Entity to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assetsof, business or portion of to conduct, restrict, operate, invest or otherwise change the assets or business of the Company, the Surviving Company, Parent, Merger Sub Company or any Subsidiary of any of the foregoing or (B) impose any restrictionits Affiliates, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any unless such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries only in the event that the Closing occurs. FurtherExcept as otherwise permitted under this Agreement (including, for the avoidance of doubt, Section 6.1(a) of the Company Disclosure Letter), the Company, Parent and Merger Sub shall not (and shall cause their Subsidiaries and Affiliates not to) take or 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 in connection with the making of all registrations, filings, notifications, communications, submissions, and any other material actions pursuant to this Section 6.7, and, subject to applicable legal limitations and the instructions of any Governmental Entity, 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 hereby, including promptly furnishing the other with copies of notices or other material 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 or appropriate to address reasonable privilege concerns or reasonable confidentiality concerns relating to proprietary or commercially sensitive information regarding Parent and its operations, provided that Parent shall contemporaneously provide summaries to Company’s counsel of the information redacted pursuant to this subclause (y). Each of 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 transactions contemplated hereby unless it consults with the other party in advance and, to the extent not prohibited or required otherwise by such Governmental Entity, gives the other party the opportunity to attend and participate.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 6.7, if any Actionadministrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatenedthreatened to be instituted) challenging or seeking to restrainany transaction contemplated by this Agreement as violative of any Law, prohibit or place conditions on the consummation each of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conductedCompany, Parent (and the Parent Subsidiaries) Merger Sub shall cooperate in all respects with each other and the Company (and the Company Subsidiaries) shall use their respective reasonable best efforts to defend contest and resist any such action or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents prevents, delays or restricts consummation of the Transactions, including the Merger.
(b) Each of Parent Merger and the Company shall, in connection with and without limiting other transactions contemplated by this Agreement. Notwithstanding the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act foregoing or any other Regulatory Lawprovision of this Agreement, (i) cooperate nothing in all respects, including by furnishing this Section 6.7 shall limit a party’s right to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party terminate this Agreement pursuant to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”Section 8.1(b)(i) or any other Governmental EntitySection 8.1(b)(ii) so long as such party has, by promptly providing copies prior to the other Party of any such written communicationstermination, and of any communication received or given in connection complied with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other its obligations under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company6.7.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing).
Appears in 1 contract
Sources: Merger Agreement (Saks Inc)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, Parent each of the parties hereto shall, and shall cause its Subsidiaries to, use its reasonable best efforts (subject to, and in accordance with, applicable Law) to take promptly, or to cause to be taken, all actions, and to do promptly, or to cause to be done, and to assist and to cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective the Merger and the other transactions contemplated hereby, including (i) the obtaining of all necessary actions or nonactions, waivers, consents and approvals, including the Company Approvals and the Parent Subsidiaries) Approvals, from Governmental Entities and the Company (making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) 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 contemplated hereby; provided, however, that in no event shall the Company Subsidiariesor any of its Subsidiaries be required to pay prior to the Effective Time any fee, penalties or other consideration to any third party to obtain any consent or approval required for the consummation of the Merger under any Contract (other than de minimis amounts or if Parent and Merger Sub have provided adequate assurance of repayment).
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the Company and Parent shall (i) promptly as practicable after the date hereof, make their respective filings and thereafter make any other required submissions under the HSR Act, (ii) use reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers or approvals are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely seeking all such consents, permits, authorizations or approvals, (iii) use reasonable best efforts to take, or to cause to be taken, all other actions and to do, or to cause to be done, all other things necessary, proper or advisable under applicable Law to consummate and make effective the TransactionsMerger and the other transactions contemplated hereby, including taking all such further action as reasonably may be necessary to resolve such objections, if any, as the MergerUnited States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state or foreign antitrust enforcement authorities or competition authorities, other Governmental Entities in connection with the Specified Regulatory Clearances, or other state or federal regulatory authorities of any other nation or other jurisdiction or any other person may assert under Regulatory Law (as hereinafter defined) with respect to the Merger and the other transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Merger so as to enable the Closing to occur as soon as practicable after the date hereof reasonably possible (and in any event 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 completion of the transactions contemplated by this Agreement, including to the extent permitted by Law promptly furnishing the other with copies of notices or other communications received by the Outside Date)Company or Parent, including (i) preparing and filing as the case may be, or otherwise providingany of their Subsidiaries, in consultation with the other Party and as promptly as reasonably 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 reasonably practicable (and in any event by the Outside Date) 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 with respect thereto.
(c) Subject to consummate the Transactions, including the MergerSection 5.11, and (ii) taking all steps as may be necessary, subject to the limitations in this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation of the foregoing, each Party, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination covenants of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth parties contained in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. FurtherSection 5.6, if any Actionadministrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatenedthreatened to be instituted) challenging the Merger or seeking to restrainany other transaction contemplated by this Agreement, prohibit or place conditions on the consummation each of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of and Parent shall cooperate in all or any portion of their respective businesses as presently conducted respects with each other and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their respective reasonable best efforts to defend contest and resist any such action or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act Merger or any other Regulatory Law, (i) cooperate in all respects, including by furnishing to transactions contemplated hereby. Notwithstanding the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) foregoing or any other Governmental Entityprovision of this Agreement, by promptly providing copies nothing in this Section 5.6 shall limit a party’s right to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided terminate this Agreement pursuant to the foregoing clauses (iSection 7.1(b)(i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject so long as such party has, prior to the occurrence such termination, complied with its obligations under this Section 5.6.
(d) For purposes of the Closing).this Agreement, “
Appears in 1 contract
Sources: Merger Agreement (Egl Inc)
Efforts. (a) Subject to the terms and conditions of this Agreement, Parent (and the Parent Subsidiaries) and including Section 7.1(i), each of the Company (and the Company Subsidiaries) Parent shall use reasonable best efforts to take, or cause to be taken, all the following actions and to do, or cause to be done, all incidental things necessary, proper or advisable under applicable Law to consummate and make effective the Transactions, including Merger and the Merger, other transactions contemplated by this Agreement as soon promptly as practicable after the date hereof (and in any event by the Outside Date), including of this Agreement: (i) preparing and filing or otherwise providingfiling, in consultation with the other Party and Parties, as promptly as reasonably practicable and advisable after the date hereof, with any Governmental Authority or other Third Party all documentation to effect all necessary applicationsnecessary, proper or advisable filings, notices, petitions, filings statements, registrations, submissions of information, applications and other documents and (ii) obtaining and maintaining (and cooperating with each other to obtain as promptly as reasonably practicable (and in any event by the Outside Dateor maintain) all waiting period expirations or terminationsapprovals, consents, clearances, waivers, licenses, orders, registrations, approvalspermits, permits authorizations and authorizations necessary or advisable other confirmations required to be obtained from any third party and/or any Governmental Entity Authority or other Third Party, in order each case, that are necessary, proper or advisable to consummate and make effective the Transactions, Merger and the other transactions contemplated by this Agreement (including the Merger, and Station Divestiture) (ii) taking all steps as may be necessary, subject to the limitations in this Section 6.2, to obtain all whether or not such waiting period expirations or terminationsapprovals, consents, clearances, waivers, licenses, registrations, permits, authorizationsauthorizations and other confirmations are conditions to the consummation of the Merger pursuant to Article VIII); provided, orders however, that, except as expressly provided in this Agreement, 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 the Company or its Subsidiaries 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 approvals. acknowledge that, except as provided in Section 8.1(b) and Section 8.2(d), receipt of any such any approval, consent, registration, permit, authorization or other confirmation is not a condition to Closing.
(b) In furtherance and not in limitation of the foregoing, each Partyof Parent and the Company shall make, as applicable, agrees promptly as reasonably practicable (i) appropriate filings of Notification and Report Forms pursuant to (x) make, or cause the HSR Act with respect to be made, an appropriate the transactions contemplated by this Agreement; provided that the filing by each of Parent and the Company of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event Merger shall be made within fifteen ten (1510) Business Days after of the execution date of this Agreement (Agreement, unless a later date is mutually agreed between to in writing by both Parent and the Parties)Company, and (ii) the FCC Applications with respect to supply as the transactions contemplated by this Agreement; provided that the FCC Applications with respect to the Merger shall be made within ten (10) Business Days of the date of this Agreement, unless a later date is agreed to in writing by both Parent and the Company. Each of the Company and Parent shall respond promptly as reasonably practicable and advisable any to all requests for additional information and documentary materials that may be requested pursuant material by a Governmental Authority, and shall comply promptly with such requests unless the Parent and Company agree with each other to the HSR Act 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 the 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 and the Station Divestiture, if applicable, under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and neither Parent nor the Company may not, and not permit any Company Subsidiary toshall, without the prior written consent of Parentthe other: (i) pull and refile any notification under the HSR Act, become subject to(ii) agree to extend any waiting period, consent to(iii) enter into any timing agreement with any Governmental Authority, or offer or (iv) agree to, take or commit with any Governmental Authority not to take consummate the transactions contemplated by this Agreement for any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose period of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Mergertime.
(bd) Each Except as prohibited by applicable Law or Order, each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, shall (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission with a Governmental Authority in connection with the transactions contemplated by this Agreement and in connection with any investigation or other inquiryinquiry by or before a Governmental Authority relating to the transactions contemplated by this Agreement, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Partysubmissions, (ii) promptly inform the other Party of (and if in writing, supply to the other Party) any substantive or procedural communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”)Federal Trade Commission, the Federal Trade Commission (DOJ, the “FTC”) FCC or any other similar Governmental Entity, by promptly providing copies to the other Party of any such written communications, Authority and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and transactions contemplated by this Agreement, (iii) consult with each other prior to taking any material position with respect to the filings under the HSR Act, the Communications Act and the FCC Rules in discussions with or filings to be submitted to any Governmental Authority, (iv) permit the other Party to review and discuss in advance any communication that it gives toadvance, and consult with each consider in good faith the views of the other in advance connection with, any analyses, presentations, memoranda, briefs, arguments, opinions and proposals to be submitted to any Governmental Authority with respect to filings under the HSR Act, the Communications Act and the FCC Rules and (v) coordinate with the other in preparing and exchanging such information and promptly provide the other (and its counsel) with copies of all filings, presentations or submissions (and a summary of any in-person meeting, telephone call oral presentations) made by such Party with any Governmental Authority relating to this Agreement or other meeting or conference (whether by video or otherwise) withthe transactions contemplated hereby under the HSR Act, the DOJ, Communications Act and the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereatFCC Rules; provided, however, that materials documents or information required to be provided pursuant to the foregoing clauses this Section 7.1(d) (i) - (iiix) may be redacted as necessary (AI) to comply with contractual arrangements, (II) to address good faith legal privilege concerns, or (III) to remove references concerning the valuation of Parentor alternative bidders, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (Cy) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) may be designated as “Outside Counsel Only Materialoutside counsel only,” which such material materials and the information contained therein shall be given only to the outside antitrust counsel and previously-agreed consultants of the recipient and will not be disclosed by such outside counsel or consultants to employees, officers officers, or directors of the recipient unless express permission is obtained in without the advance from the source written consent of the materials party providing such materials.
(e) The Company and Parent acknowledge that, to the extent reasonably necessary to expedite the grant by the FCC of any application for renewal of any FCC License with respect to any Company Station and thereby to facilitate the grant of the FCC Consent with respect to such Company Station, each of the Company, Parent and their applicable Subsidiaries shall be permitted to enter into tolling agreements with the FCC to extend the statute of limitations for the FCC to determine or impose a forfeiture penalty against such Company Station in connection with (i) any pending complaints that such Company Station aired programming that contained obscene, indecent or profane material or (ii) any other enforcement matters against such Company Station with respect to which the FCC may permit the Company or Parent (or any of their respective Subsidiaries) to enter into a tolling agreement. For each application for renewal of any Company Station License (a “Renewal Application”) that is pending on the date hereof or that must be filed prior to the grant of the FCC Consent, Parent shall request in the FCC Applications that the FCC apply its policy permitting the processing of transfer of control or assignment of FCC authorizations in transactions involving multiple stations notwithstanding the pendency of one hand or more Renewal Applications (the “FCC Renewal Policy”). Parent shall make such customary representations and agree to such customary undertakings in the FCC Applications as are reasonably required to invoke the FCC Renewal Policy, including undertakings to assume the position of the applicant before the FCC with respect to any pending Renewal Application and to assume the corresponding regulatory risks relating to any such Renewal Application.
(f) If the Closing shall not have occurred for any reason within the original effective period of the FCC Consent, and neither party shall have terminated this Agreement pursuant to the terms hereof, the Company and Parent shall use their reasonable best efforts to obtain one or more extensions of the effective period of the FCC Consent to permit consummation of the transactions hereunder. Upon receipt of the FCC Consent, the Company and Parent shall use their respective reasonable best efforts to maintain in effect the FCC Consent to permit consummation of the transactions hereunder. No extension of the FCC Consent shall limit the right of the Company and Parent to terminate this Agreement pursuant to the terms hereof.
(g) Unless prohibited by applicable Law or Order or by the applicable Governmental Authority, each of the Company and Parent shall (i) not participate in or attend any meeting, or engage in any substantive or procedural conversation, telephone call or video conference, with any Governmental Authority in respect of the Merger (including with respect to any of the actions referred to in Section 7.1(a))) without the other, (ii) give the other reasonable prior notice of any such meeting or conversation and (iii) in the event one such Party is prohibited by applicable Law or Order or by the applicable Governmental Authority from participating or attending any such meeting or engaging in any such conversation, keep the non-participating Party reasonably apprised with respect thereto.
(h) Subject to Section 7.1(i), each of the Company and Parent shall use reasonable best efforts to take actions 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 possible, including (i) the use of reasonable best efforts to avoid the entry of, or the Company commencement of any Proceeding in any forum that could result in, any permanent, preliminary or temporary Order that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the transactions contemplated by this Agreement, including the proffer and agreement by Parent of its willingness to use such reasonable best efforts, and promptly to use such reasonable best efforts to undertake the Station Divestiture (as defined in Schedule 7.1(h)) and Approval Actions listed on Schedule 7.1(h), and (ii) the otheruse of reasonable best efforts to take, in the event that any permanent or preliminary 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 (including the Station Divestiture) in accordance with its terms unlawful or its legal counselthat would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the transactions contemplated by this Agreement (including the Station Divestiture), 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. In furtherance of the foregoing, Parent shall take the actions described in Schedule 7.1(h) in accordance with the terms thereof.
(i) Notwithstanding anything in this Agreement herein to the contrary, nothing set forth in this Section 7.1 or otherwise in this Agreement shall:
(i) require, or be construed to require the Company, Parent or any of their respective Subsidiaries to take, or agree to take, any Station Divestiture or Approval Action, unless such Station Divestiture or Approval Action shall be entitled conditioned upon the consummation of the Merger;
(ii) require, or be construed to lead require Parent or any of its Subsidiaries to agree or propose to take or consent to the strategy and course taking of action for seeking and obtaining all waiting period expirations or terminationsany Station Divestiture, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act Approval Actions or any other Regulatory Lawactions contemplated by this Section 7.1, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that than (x) at the time Station Divestiture and Approval Actions listed on Schedule 7.1(h); or
(iii) require the Company, SpinCo or its Subsidiaries that are SpinCo Entities (x) to sell, divest, dispose of, hold separate or otherwise limit its freedom of entry into action with respect to any timing SpinCo Asset (as defined in the Separation and Distribution Agreement), (y) retain any RemainCo Asset or similar agreement, RemainCo Liability (as such terms are defined in the term thereof Separation and Distribution Agreement) unless (A) such retention would not reasonably be expected to extend beyond prevent, impede or materially delay the Closing, (B) in the case of a RemainCo Asset, Parent agrees that the Company or SpinCo may retain such time as would allow the parties sufficient time to consummate the Closing prior RemainCo Asset for no consideration or cost to the Outside Date Company or SpinCo and (yC) in doing so it must act the case of a RemainCo Liability, Parent agrees to fully reimburse and indemnify the Company or SpinCo, as applicable, against such RemainCo Liability, with the form and substance of the agreements by Parent referenced in each of the preceding clauses (B) and (C) to be reasonably and must consider satisfactory to the Company in its good faith the views of the Companydetermination.
(cj) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the The Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its use commercially reasonable best efforts to obtain any third party consents required under any Company Material Contract. Schedule 7.1(j) identifies those consents the receipt of which is a condition precedent to any Contracts that are necessary Parent’s obligation to consummate close under this Agreement (the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty“Required Consents”), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence terms of the ClosingSchedule 7.1(j).
Appears in 1 contract
Efforts. (a) 5.1 Subject to the terms and conditions of this Agreement, Parent the Company and Bidder shall (and the Parent Subsidiariesshall cause their respective Subsidiaries to) and the Company (and the Company Subsidiaries) shall 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 law to consummate and make effective the Transactions, including the Merger, as soon as practicable after the date hereof (and in any event transactions contemplated by the Outside Date), including (i) preparing and filing or otherwise providing, in consultation with the other Party and this Agreement as promptly as reasonably practicable practicable, including, but without prejudice to the confirmation and advisable after representation of the date hereofBidder to the Company set forth in Section 2.2, all documentation to effect (a) the obtaining of all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as reasonably practicable (and in any event by the Outside Date) all waiting period expirations or terminations, consents, clearancesactions, 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 Transactions, including the Merger, and (ii) taking all steps as may be necessary, subject to the limitations in this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders orders, consents and approvals. approvals from any governmental authority in the U.S., Belgium, Germany or otherwise (“Governmental Authority”), the expiry or early termination of any applicable waiting periods, and the making of all necessary registrations and filings (including filings with Governmental Authorities, if any) and the taking of any and all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authorities, (b) the delivery of required notices to, and the obtaining of required consents or waivers from, third parties necessary to consummate the transactions contemplated by this Agreement and (c) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement.
5.2 In furtherance and not in limitation of the foregoingundertakings pursuant to this Article 5 each of the Bidder and, each Partyto the extent required by applicable law, the Company shall (a) promptly (but in no event later than 10 business days after the date hereof) prepare and file any notification and report forms and related material required under the HSR Act and other applicable U.S. or non-U. S. antitrust laws (“Antitrust Laws”) with respect to the 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 contemplated by this Agreement, as applicablepromptly as reasonably practicable and advisable, agrees to (xb) make, provide or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply provided as promptly as reasonably practicable and advisable any additional information and documentary materials material that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside DateU.S. Department of Justice (“DOJ”) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted U.S. Federal Trade Commission (or threatened“FTC”) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or by other Governmental Authorities under applicable Antitrust Laws (if any) and (c) use its 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 Regulatory Lawapproval of consummation of the transactions contemplated by this Agreement by the DOJ or FTC or other applicable Governmental Authorities. Bidder shall pay all filing fees required by any Governmental Authority for filings made under this section.
5.3 Subject to applicable law, the Company and Bidder and their respective counsel shall (ia) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult respects with each other in connection with any filing or submission with a Governmental Authority in connection with the transactions contemplated by this Agreement and in connection with any investigation or other inquiryinquiry by or before a Governmental Authority relating to the transactions contemplated by this Agreement, including any proceeding initiated by a private partyperson, including by allowing (b) have the other Party to have a reasonable opportunity right to review in advance advance, and comment on drafts of filings and submissions and reasonably considering in good faith comments of to the extent practicable each shall consult the other Partyon, (ii) promptly inform the other Party of any communication received by such Party frommaterial filing made with, or given by such Party written materials to be submitted to, any Governmental Authority in connection with the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, transactions contemplated by promptly providing copies to the other Party of any such written communications, this Agreement and of any material communication received or given in connection with any proceeding by a private partyPerson, in each case regarding any of the Transactions and transactions contemplated by this Agreement, (iiic) permit the promptly inform each other Party to review in advance of any material communication that it gives (or any other material correspondence or memoranda) received from, or given to, and consult with each other in advance of any in-person meeting, telephone call the DOJ or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other applicable Governmental Entity orAuthority and (d) promptly 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 contemplated by this Agreement. The Company and Bidder 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 contemplated by this Agreement. Notwithstanding the foregoing, Bidder shall, following consultation with the Company and after giving due consideration to its views and acting reasonably and in good faith, direct and control all aspects of the parties’ efforts to gain regulatory clearance either before any proceeding Governmental Authority or in any action brought to enjoin the transactions contemplated by a private partythis Agreement pursuant to any Antitrust Laws; provided, with any other Personthat each of the parties hereto shall have the right to review in advance, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give practicable each will consult the other Party on, all the reasonable opportunity information relating to attend the other parties and participate thereat; providedtheir respective subsidiaries, howeveras the case may be, that appears in any filing made with, or written materials required to be provided pursuant (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 foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, transactions contemplated by this Agreement. The Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company Bidder may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) Article 5 as “Outside Antitrust Counsel Only Material.” which such material and the information contained therein shall be given only Notwithstanding anything to the outside antitrust counsel of contrary in this Article 5, materials provided to 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 on the one hand or the Company on the other) other party or its legal counsel. Notwithstanding anything in this Agreement counsel may be redacted to remove references concerning the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views valuation of the Company.
(c) In connection with and without limiting 5.4 Notwithstanding the foregoingundertakings of Bidder pursuant to Section 5.1 through Section 5.3, in the no event that Parent requests the Company shall anything in this Agreement require, or be construed to do sorequire, the Company shall give any notices to third parties required under ContractsCompany, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company Bidder or any of their respective Subsidiaries affiliates to take, or agree to take, any action that would, individually or in the aggregate, result in a material adverse effect on the business, results of operations, assets or financial condition of the Company and its subsidiary, taken as a whole or Bidder and its subsidiaries, taken as a whole (which shall exclude Company and its subsidiary); provided that for purposes of determining whether a material adverse effect shall have occurred such effect shall be required measured relative to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case size of the CompanyCompany and its subsidiary, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing)taken as a whole.
Appears in 1 contract
Sources: Heads of Agreement (Sanofi)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, Parent each of the parties hereto shall, and shall cause its Subsidiaries to, use its reasonable best efforts (subject to, and in accordance with, applicable Law) to take promptly, or to cause to be taken, all actions, and to do promptly, or to cause to be done, and to assist and to cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective the Merger Agreement and Plan of Merger -49- and the other transactions contemplated hereby, including (i) the obtaining of all necessary waivers, consents and approvals, including the Company Approvals and the Parent Subsidiaries) Approvals, from Governmental Entities and the Company (making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties and (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the Company Subsidiariesand Parent shall (i) shall 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 or approvals are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely seeking all such consents, permits, authorizations or approvals, (ii) use reasonable best efforts to take, or to cause to be taken, all other actions and to do, or to cause to be done, all other things necessary, proper or advisable under applicable Law to consummate and make effective the TransactionsMerger and the other transactions contemplated hereby, including taking all such further action as reasonably may be necessary to resolve such objections, if any, as any state or federal regulatory authorities of any other nation or other jurisdiction or any other Person may assert under Regulatory Law (as hereinafter defined) with respect to the MergerMerger and the other transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Merger so as to enable the Closing to occur as soon as practicable after the date hereof reasonably possible (and in any event no later than the End Date (as hereinafter defined)), and (iii) subject to applicable legal limitations and the instructions of any Governmental Entity, use reasonable best efforts to keep each other apprised of the status of matters, including to the extent permitted by Law promptly furnishing the other with copies of notices or other communications received by the Outside Date)Company or Parent, including (i) preparing and filing as the case may be, or otherwise providingany of their Subsidiaries, in consultation with the other Party and as promptly as reasonably 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 reasonably practicable (and in any event by the Outside Date) 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 related to the approval of the Merger, allowing each other to review in order advance any filing or written materials submitted to consummate any Governmental Entity related to the Transactions, including approval of the Merger, and (ii) taking all steps as may be necessaryproviding the other party and its counsel with advance notice of and, subject to the limitations extent permitted by Law, the opportunity to participate in this any discussion, telephone call or meeting with any Governmental Entity in respect of any filing, investigation or other inquiry related to the approval of the Merger.
(c) Subject to Section 6.25.10, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In in furtherance and not in limitation of the foregoing, each Party, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination covenants of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth parties contained in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. FurtherSection 5.6, if any Actionadministrative or judicial Proceeding, including any proceeding Proceeding by a private party, is instituted (or threatenedthreatened to be instituted) challenging the Merger or seeking to restrainany other transaction contemplated by this Agreement, prohibit or place conditions on the consummation each of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of and Parent shall cooperate in all or any portion of their respective businesses as presently conducted respects with each other and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their respective reasonable best efforts to defend contest and resist any such action or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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 TransactionsMerger or any other transactions contemplated hereby; provided, including however, that, without the Mergerconsent of Parent, nothing in this Agreement shall require Parent, the Company Agreement and Plan of Merger -50- or the Surviving Corporation, or their respective Subsidiaries or Affiliates, to sell, hold separate or otherwise dispose of any assets or business, or any interest in any of their respective Subsidiaries or Affiliates, in whole or in part, or to conduct any aspect of their business in a specified manner, or to permit the sale, holding separate of, or other disposition of, any assets or business, in whole or in part, or to agree to take any of the foregoing actions, or to agree to any condition or to enter into any agreement to obtain such consent, registration, approval, Permit or authorization that, in the judgment of Parent, would be adverse to Parent or the Surviving Corporation. Notwithstanding the foregoing or any other provision of this Agreement, nothing in this Section 5.6 shall limit a party’s right to terminate this Agreement pursuant to Section 7.1(b)(i) or Section 7.1(b)(ii) so long as such party has, prior to such termination, complied with its obligations under this Section 5.6.
(bd) Each For purposes of Parent this Agreement, “Regulatory Law” means any and all Laws requiring notice to, filings with, or the Company shallconsent or approval of, any Governmental Entity, or that otherwise may cause any restriction, in connection with the Merger and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminationstransactions contemplated thereby, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts ▇▇▇▇▇▇▇ Act of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to1890, the ▇▇▇▇▇▇▇ Antitrust Division Act of the Department of Justice (the “DOJ”)1914, the Federal Trade Commission (Act of 1914 and all other Laws that are designed or intended to prohibit, restrict or regulate actions having the “FTC”) purpose or any other Governmental Entityeffect of monopolization or restraint of trade or lessening competition through merger or acquisition, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and Law governing the contents of, direct or indirect ownership or control of any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each operations or assets of the Company and its Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (iiiii) subject to any Law with the occurrence purpose of protecting the Closing)national security of any nation.
Appears in 1 contract
Sources: Merger Agreement
Efforts. (a) Subject to the terms and conditions of this Agreement, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall each party will use its reasonable best efforts to (i) take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law Applicable Laws and regulations to consummate the Transactions, including Merger and the Merger, other transactions contemplated by this Agreement as soon as practicable after the date hereof (and in any event by the Outside Date)hereof, including (i) preparing and filing or otherwise providing, in consultation with the other Party promptly and as promptly as reasonably practicable and advisable after the date hereof, fully all documentation to effect all necessary applicationsfilings, notices, petitions, filings statements, registrations, submissions of information, applications and other documents (including any required or recommended filings under Applicable Law and, in the case of the Company and to obtain its Subsidiaries, any amendments, modifications or affirmations of exemptive orders and no-action positions of the SEC as promptly as reasonably practicable (and in any event by the Outside Date) all waiting period expirations or terminationsare necessary, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations necessary proper or advisable under Applicable Law to be obtained from any third party and/or any Governmental Entity allow the Surviving Company and its Subsidiaries to operate their businesses following the Merger in order to consummate substantially the Transactions, including same manner as the MergerCompany and its Subsidiaries operate on the date hereof), and (ii) taking all steps as may be necessary, subject to the limitations in this Section 6.2, to obtain all such waiting period expirations or terminationsapprovals, consents, clearances, waivers, licenses, registrations, permits, authorizationsauthorizations and other confirmations from any Governmental Authority necessary, orders proper or advisable to consummate the Merger and approvalsthe other transactions contemplated by this Agreement and to conduct the business of the Surviving Company and its Subsidiaries after the Closing Date in the same manner as conducted by the Company and its Subsidiaries as of the date hereof (including each of the consents, approvals and Permits identified in Section 3.1(f)(ii) of the Company Disclosure Schedule) as soon as practicable after the date hereof. In furtherance and not in limitation of the foregoingforegoing (x), each Party, as applicable, party hereto agrees to (x) make, or cause to be made, make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions transactions contemplated hereby as promptly as reasonably practicable, practicable and in any event within fifteen (15) ten Business Days after of the execution of this Agreement (unless a later date is mutually agreed between the Parties), hereof and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials material that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period periods under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make if any state takeover statute or similar law becomes applicable to the Merger or the other transactions contemplated by this Agreement, take all action necessary to ensure that the Merger and such other necessary filings under any applicable Regulatory Law transactions may be consummated as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested terms contemplated by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted this Agreement and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or otherwise minimize the effect of such law on the Merger and such other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Mergertransactions.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a5.4(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits requisite approvals and authorizations for the Transactions transactions contemplated by this Agreement under the HSR Act or any other Regulatory Law, use its reasonable best efforts to (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, ; (ii) promptly inform the other Party party of any communication received by such Party party from, or given by such Party party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, Authority and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions transactions contemplated hereby; and (iii) permit the other Party party to review in advance any communication that given by it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any such other Governmental Entity Authority or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited permitted by the DOJ, the FTC or such other applicable Governmental Entity Authority or other Person, give the other Party party the reasonable opportunity to attend and participate thereat; providedin such meetings and conferences. For purposes of this Agreement, however, that materials required to be provided pursuant to “Regulatory Law” means the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company mayS▇▇▇▇▇▇ Act, as each deems advisable amended, the C▇▇▇▇▇▇ Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, and necessaryall other federal, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such material state 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 employeesforeign, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contraryif any, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminationsstatutes, consentsrules, clearances, waivers, licensesregulations, orders, registrationsdecrees, approvalsadministrative and judicial doctrines and other laws that are designed or intended to prohibit, permits and authorizations for restrict or regulate actions having the Transactions under the HSR Act purpose or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing effect of monopolization or voluntarily extend any waiting period restraint of trade or review period under the HSR Act lessening of competition through merger or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay acquisition. In furtherance and not to consummate in limitation of the Transactions, provided, that (x) at the time covenants of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date contained in Section 5.4(a) and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In connection with and without limiting the foregoingthis Section 5.4(b), in the event that Parent requests the Company to do so, the Company each party hereto shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, use its reasonable best efforts to obtain resolve objections, if any, as may be asserted with respect to the transactions contemplated by this Agreement under any third party consents to any Contracts that are necessary to consummate the Transactions, including the MergerRegulatory Law. Notwithstanding anything to the contrary hereincontained in this Agreement, none in connection with any filing or submission required or action to be taken by either Parent or the Company to consummate the Merger, in no event shall Parent or any of its Subsidiaries or Affiliates be obligated to propose or agree to accept any undertaking or condition, to enter into any consent decree, to make any divestiture or accept any operational restriction, or take or commit to take any action that, in the sole discretion of Parent, would reasonably be expected to limit (A) the freedom of action of Parent or any of its Subsidiaries or Affiliates with respect to the operation of, or Parent’s or any of its Subsidiaries’ or Affiliates’ ability to retain, the Company or any of their respective Subsidiaries shall be required to pay any consent businesses, product lines or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case assets of the Company, if requested by Parent and either or (iB) reimbursed the ability to retain, own or indemnified for by operate any material portion of the businesses, product lines, or assets, of Parent or (ii) subject to any of its Subsidiaries or Affiliates, or alter or restrict in any way the occurrence business or commercial practices of the Closing)Company, Parent or any of its Subsidiaries or Affiliates.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of this Agreement, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) Parent shall, and shall cause their respective Affiliates to, cooperate with each other and use reasonable their best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Applicable Law to consummate the TransactionsMerger and the other transactions contemplated by this Agreement as promptly as practicable, including (a) the Mergerobtaining of all necessary consents, approvals or waivers from Third Parties, (b) preparing and filing as soon promptly as practicable after the date hereof (and in with any event by the Outside Date), including (i) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably practicable and advisable after the date hereof, Governmental Authority all documentation to effect all necessary applicationsfilings, notices, petitions, filings statements, registrations, submissions of information, applications and other documents documents, (c) obtaining and to obtain as promptly as reasonably practicable (and in any event by the Outside Date) maintaining all waiting period expirations or terminationsapprovals, consents, clearancesregistrations, waiversPermits, authorizations, licenses, orders, registrations, approvals, permits waivers and authorizations necessary or advisable other confirmations required to be obtained from any third party and/or any Governmental Entity in order Authority that are necessary to consummate the Transactionstransactions contemplated by this Agreement, (d) defending or contesting (including through litigation on the Mergermerits) any action, suit or proceeding challenging this Agreement or the transactions contemplated hereby and (iie) taking all steps as may executing and delivering any additional instruments necessary to consummate the transactions contemplated hereby; provided, however, that in no event shall Parent, the Company or any of their Subsidiaries be necessary, subject required to pay prior to the limitations in 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 Section 6.2, to obtain all such waiting period expirations Agreement under any contract or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. agreement.
(b) In furtherance and not in limitation of the foregoing, each PartyParent and the Company shall, as applicableand shall cause their respective Affiliates to, agrees to (x1) make, or cause to be made, make (i) an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by within ten (10) Business Days after the Outside Datedate hereof) and (yii) make all other appropriate filings necessary filings under pursuant to any applicable Regulatory Foreign Antitrust Law (collectively with the HSR Act, the “Antitrust Laws”) as promptly as reasonably practicable, and in each case with respect to supply as promptly as reasonably the transactions contemplated hereby, (2) comply at the earliest practicable and advisable date with any additional information and documentary materials that may be requested request under any Regulatory Laws. Notwithstanding anything to of the contrary set forth in this AgreementAntitrust Laws for additional information, none documents, or other materials received by each of Parent, Merger Sub them or any of their respective Subsidiaries shall be required to, or Affiliates from any Governmental Authority in respect of such filings or such transactions and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i3) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult 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 changes suggested in connection therewith) and in connection with resolving any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party inquiry 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”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding Authority under any of the Transactions Antitrust Laws with respect to any such filing or any such transaction. In furtherance and not in limitation of the foregoing, 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 (iiiy) permit submit a final joint voluntary notice to CFIUS, each with regard to this Agreement and other related information pursuant to Section 721 of the other Party Defense Production Act of 1950, as amended. Each of Parent and the Company shall respond to review any request for information from CFIUS in advance any communication that it gives tothe timeframe set forth in the CFIUS regulations, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat31 C.F.R. Part 800; provided, however, that materials either party, after consultation with the other party, may request in good faith 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 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 furnish to each other all information required for any application or other filing to be provided made pursuant to any Applicable Law in connection with the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning transactions contemplated by this Agreement. Each such party shall as promptly as practicable inform the valuation other parties hereto of Parentany oral communication with, Company and provide copies of written communications with, any Governmental Authority regarding any such filings or any such transaction except such written communications conveying the “personal identifier information” required under 31 CFR § 800.402(c)(6)(vi)(B). No party hereto shall independently participate in any formal meeting with any Governmental Authority in respect of their respective Subsidiariesany such filings, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege investigation, or confidentiality concerns; providedother inquiry without giving the other parties hereto prior notice of the meeting and, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other 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 this Section 6.2(b) as “Outside Counsel Only Material” which such material and the information contained therein shall be given only to the outside antitrust counsel any of the recipient and will not be disclosed by such outside counsel to employees, officers Antitrust Laws or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counselRegulatory Laws. Notwithstanding anything in this Agreement the foregoing to the contrary, any such disclosures, 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 any Antitrust Laws or Regulatory Laws) if allowed or required under Applicable Law, and further, either party may in good faith reasonably withhold from disclosure to the other party privileged or classified information, and sensitive personal data.
(c) Notwithstanding anything herein to the contrary: (i) Parent shall be entitled take, and shall cause its Affiliates to lead the strategy take, any and course of all action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Lawnecessary, including but not limited to directing (A) selling or otherwise disposing of, or holding separate and unilaterally determining agreeing to sell or otherwise dispose of, assets, categories of assets or businesses of the Company or Parent or their respective Affiliates; (iB) terminating existing relationships, contractual rights or obligations of the Company or Parent or their respective Affiliates; (C) terminating any decision venture or other arrangement; (D) creating any relationship, contractual rights or obligations of the Company or Parent or their respective Affiliates, (E) agreeing to pull and refile mitigation measures regarding post-closing operations of the Company or its Affiliates required by the National Security Authorities or (F) effectuating any Governmental Filing other change or voluntarily extend 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 waiting period or review period under attorney general of any state of the HSR Act United States, the European Commission or any other applicable 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 Law Authorities”); or (z) all other Governmental Authorities; in connection with any of the foregoing (each a “Divestiture Action”)), and (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 decision 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 enter intoensure 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 the contents ofshall not permit their respective Affiliates to take, any agreement action (including a 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 to the consummation of the transactions contemplated hereby as promptly as practicable. In the event that any action is threatened or instituted challenging the Merger as violative of any Antitrust Law or any Regulatory Law, Parent shall, and shall cause its Affiliates to, defend and contest (including through litigation on the merits), or otherwise resolve, the action (with the Company’s cooperation), and shall take all other actions necessary, including but not limited to any Divestiture Action, to allow the consummation of the transactions by the 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 Agreement unlawful or that would restrain, enjoin or otherwise prevent or materially delay the consummation of the transactions 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 agreementof 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 Governmental Entity Regulatory Authority or other third party regarding any Divestiture Action. Notwithstanding anything to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreementcontrary in this Agreement, the term thereof would not reasonably process for obtaining CFIUS approval shall be expected to extend beyond such time managed jointly by Parent and Company, Parent and Company shall jointly make all final determinations as would allow the parties sufficient time to consummate the Closing prior to the Outside Date appropriate course of action and all communications and filings (yincluding, 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 doing so it must act reasonably advance, and must consider in good faith the views of the Companyother 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.
(cd) In connection with and without limiting For purposes of this Agreement, “Regulatory Law” means the foregoingDefense Production Act of 1950, in the event that Parent requests the Company to do soas amended, the Company shall give 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 notices to third parties required under ContractsExecutive 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 Company shall usepurpose or effect of monopolization or restraint of trade or lessening competition through merger or acquisition, and cause each (ii) regulate the business or operations of the Company or its Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (iiiii) subject to protect the occurrence national security or the national economy of the Closing)any nation.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, Parent each of the parties shall, and shall cause their respective Subsidiaries and controlled Affiliates to, use their reasonable best efforts to fulfill all conditions to Closing applicable to such party pursuant to this Agreement and to consummate and make effective, in the most expeditious manner reasonably practicable, the Merger and the other transactions contemplated by this Agreement, including (i) using reasonable best efforts to (A) obtain all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Company Approvals and the Parent SubsidiariesApprovals, from applicable Governmental Entities and Self-Regulatory Organizations and (B) make all necessary registrations and the Company (filings and the Company Subsidiaries) shall use reasonable best efforts to taketake all steps as may be necessary to obtain an approval, clearance or waiver from, or cause to be takenavoid an Action by, any Governmental Entity or Self-Regulatory Organization, (ii) the obtaining of all actions necessary consents, approvals or waivers from third parties (other than Governmental Entities or Self-Regulatory Organizations) and to do, or cause to be done, all things necessary, proper or advisable under applicable Law (iii) the execution and delivery of any additional instruments reasonably necessary to consummate the Transactionstransactions contemplated by this Agreement; provided, however, that in no event shall the Company or any of its controlled Affiliates be required to (A) pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval under any contract or agreement required for the consummation of the transactions contemplated by this Agreement or (B) agree to any material term, condition, obligation, restriction, requirement, limitation, qualification, remedy or other action imposed, required or requested by any Governmental Entity in connection with its grant of any nonactions, waivers, consents, clearances, approvals with respect to the transactions contemplated by this Agreement, including the MergerCompany Approvals and Parent Approvals, as soon as practicable after unless such term, condition, obligation, restriction, requirement, limitation, qualification, remedy or other action imposed is binding on the date hereof Company or any of its controlled Affiliates only in the event that the Closing occurs.
(b) Subject to the terms and conditions herein provided (including, for the avoidance of doubt, the proviso in any event by the Outside Datefirst sentence of Section 5.6(a)) and without limiting the foregoing, including the Company, Parent and Merger Sub shall, and shall cause their respective Subsidiaries and controlled Affiliates to (i) preparing and filing or otherwise providingpromptly, but in consultation with the other Party and as promptly as reasonably practicable and advisable no event later than ten (10) Business Days after the date hereof, file any and all documentation to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as reasonably practicable (and in any event by the Outside Date) 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 Transactions, including the Merger, and (ii) taking all steps as may be necessary, subject to the limitations in this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation of the foregoing, each Party, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a required Notification and Report Form pursuant to Forms under the HSR Act with respect to the Transactions as promptly as reasonably practicableMerger and the other transactions contemplated by this Agreement, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary use reasonable best efforts to cause the expiration or termination of the any applicable waiting period periods under the HSR Act as soon Act, (ii) use reasonable best efforts to obtain the Regulatory Approvals (and in the case of the Company and its applicable Insurance Subsidiaries, the Loss Portfolio Approvals), (iii) promptly, but in no event later than twenty-five (25) Business Days after the date hereof give, file or make the Notices specified on Section 6.1(c) of the Company Disclosure Schedules (other than Biographical Affidavits, fingerprints and financial information regarding any individuals, which shall be filed within thirty (30) Business Days after the date hereof), (iv) in the case of the Company, promptly, but in no event later than thirty (30) Business Days after the date hereof, file or make the Loss Portfolio Approvals, (v) use reasonable best 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 third parties or other Governmental Entities or Self-Regulatory Organizations in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (B) promptly as reasonably practicable (making all such filings and in any event by the Outside Date) and (y) make timely obtaining all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicablesuch consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods, (vi) supply to supply the relevant Governmental Entity or Self-Regulatory Organization as promptly as reasonably practicable and advisable any additional information and documentary materials or documents that may be required by any Law or reasonably requested under any by such Governmental Entity or Self-Regulatory Laws. Notwithstanding anything to Organization and in the contrary set forth in this Agreement, none case of Parent, promptly as reasonably practicable provide, or cause to be provided, all information, including copies of all agreements, documents and instruments, as well as affidavits, statements or other information, that may be required or reasonably requested by any Governmental Entity relating to Parent (including any of its directors, officers, employees, partners, members or shareholders) and all persons who will “control” Parent or Merger Sub within the meaning of applicable Insurance Laws (including any of their respective directors, officers, employees, partners, members or shareholders), or its or their structure, ownership, businesses, operations, regulatory and legal compliance, assets, liabilities, financing, financial condition or results of operations, or any of its or their directors, officers, employees, partners, members or shareholders, and (vii) use reasonable best efforts to take all actions that are necessary or reasonably advisable or as may be required by any Governmental Entity to consummate the transactions contemplated by this Agreement as soon as reasonably possible, including the prompt use of its reasonable best efforts to avoid the entry of, or to effect the dissolution of, any permanent, preliminary or temporary injunction or other order that would delay, restrain, prevent, enjoin or otherwise prohibit consummation of the transactions contemplated by this Agreement. All filings and presentations made available to the public or to third parties (including Governmental Entities) that are made by or on behalf of Parent or any of its control persons under applicable Law in connection with the transactions contemplated by this Agreement that include or require a description of, or an attachment of, any plans for the business, operations or management of the Company or any of its Subsidiaries after the Closing shall be consistent in all material respects with the summary business plan provided by Parent to the Company on January 14, 2021 (the “Summary Business Plan”). Nothing herein shall require Parent or Merger Sub or any of their respective Subsidiaries controlled Affiliates or any of Parent’s direct or indirect equity holders to initiate, defend, maintain, or participate in any Action in connection with the transactions contemplated hereby or their respective obligations set forth herein.
(c) Without limitation to the foregoing, Parent shall be required to, and the Company may not, and shall cause its controlled Affiliates not permit any Company Subsidiary to, without the prior written consent of Parentdirectly or indirectly (whether by merger, become subject toconsolidation or otherwise), consent toacquire, purchase, lease or license (or agree to acquire, purchase, lease or license) any business, corporation, partnership, association or other business organization or division or part thereof, or offer any securities or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose collection of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or if doing so would reasonably be expected to: (Bi) impose any restrictionmaterial delay in the obtaining of, requirement or limitation on materially increase the operation risk of not obtaining, consents, approvals, authorizations or waivers of Governmental Entities necessary, proper or advisable to consummate the business transactions contemplated by this Agreement and secure the expiration or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary termination of any of applicable waiting period under the foregoing HSR Act; (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on ii) materially increase the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary probability of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or Governmental Entity entering an order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on prohibiting the consummation of the Transactionstransactions contemplated by this Agreement; (iii) materially increase the risk of not being able to remove any such order on appeal or otherwise; or (iv) otherwise impair or delay the ability of Parent and Merger Sub to perform their material obligations under this Agreement.
(d) Notwithstanding anything to the contrary contained in this Agreement, including the MergerParent shall not be obligated to (i) take, or the ownership or operation by refrain from taking, and no party shall agree to Parent, any Investor, the Company or any of their respective its Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend controlled Affiliates taking or contest, including through litigation or other meansrefraining from taking, any objection toaction, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of permit or suffer to exist any communication received by such Party fromcondition, limitation, restriction, or given by such Party torequirement that, individually or in the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private partyaggregate, with any other Personactions, and to the extent not prohibited conditions, limitations, qualifications, restrictions or requirements (each, a “Condition”) that would constitute a Burdensome Condition. A “Burdensome Condition” shall mean any Condition imposed by the DOJ, the FTC or other applicable a Governmental Entity on its grant of any consent, authorization, order, approval, expiration or other Persontermination of waiting periods or exemption set forth in Section 6.1(c) that, give individually or in the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to aggregate with all such Conditions would or would reasonably be provided pursuant to the foregoing clauses expected to: (i) - require the contribution of capital or the provision of any guarantee, keep-well or capital or surplus maintenance agreement, or pledge of assets or similar arrangement by Parent or any Investor (other than any capital requirements set forth in the Summary Business Plan); (ii) restrict the payment or declaration of dividends or distributions by any Insurance Subsidiary (other than restrictions or conditions on extraordinary dividends set forth in the applicable Laws in the state of domicile of the relevant Insurance Subsidiary that are generally applicable to similarly situated insurance companies domiciled in the relevant state) for a period greater than two (2) years from the Closing Date; (iii) may be redacted adverse to a material extent to the business, assets, liabilities, results of operations or condition (Afinancial or otherwise) of Parent and its Subsidiaries (including the Company and its Subsidiaries), taken as a whole, after the Closing; (iv) materially increase the amount of capital required to remove references concerning implement in all material respects the valuation Summary Business Plan as compared to the capital set forth in the Summary Business Plan; (v) require any modification or amendment of the Loss Portfolio Binder, the Loss Portfolio Contract or the Reinsurance Agreement or require the termination of any of the foregoing, in each case, that would have a non-de minimis adverse impact on Parent and its Subsidiaries (including the Company and its Subsidiaries), taken as a whole, after the Closing; (vi) require any modification or amendment of, or any adverse deviation, in each case, in any material respect from the Summary Business Plan; or (vii)(A) restrict the operations of business or use of properties of any Investor after the Closing Date, other than restrictions on the businesses or assets of the Company, Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and prohibit any Investor from engaging in, investing in or acquiring any type or line of business or (C) as necessary require any Investor to address reasonable privilege divest or confidentiality concerns; provided, further, that each dispose of Parent any business or assets. Without limiting and in furtherance of the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under parties’ obligations otherwise set forth in this Section 6.2(b) as “Outside Counsel Only Material” which such material and the information contained therein shall be given only 5.6, prior 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 on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be being entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including invoke a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreementBurdensome Condition, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably their respective controlled Affiliates and must consider Representatives shall promptly confer in good faith in order to (1) exchange and review their respective views and positions as to any Burdensome Condition or potential Burdensome Condition; (2) discuss in good faith potential approaches that would avoid such Burdensome Condition or mitigate its impact including with respect to further discussions with or analyses or other information to be provided to any Governmental Entity; and (3) negotiate in good faith with respect to any potential modification of the views terms of this Agreement or the other agreements or transactions contemplated hereby, on mutually acceptable terms and on an equitable basis, in a way that would substantially eliminate any such Burdensome Condition or sufficiently mitigate its adverse effect so that it would no longer constitute a Burdensome Condition hereunder; provided that none of the Company.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company Parent or any of their respective Subsidiaries Merger Sub shall be required to pay enter into an amendment or modification of this Agreement or any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed agreements or indemnified for by Parent or (ii) subject transactions contemplated hereby pursuant to the occurrence of the Closing)process set forth in this sentence.
Appears in 1 contract
Efforts. (a) Subject Each of the Parties agrees to the terms and conditions of this Agreement, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use its respective 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, all things necessary, proper or advisable under this Agreement and applicable Law Laws to consummate the TransactionsTransactions as promptly as practicable, including the Merger, as soon as practicable after the date hereof (and in any event by the Outside Date), including including: (i) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably practicable and advisable after the date hereof, all documentation to effect obtaining of all necessary applicationsactions or nonactions, noticeslicenses, petitionspermits, filings and other documents and to obtain as promptly as reasonably practicable (and in any event by the Outside Date) all waiting period expirations or terminationsorders, consentsnotifications, clearances, waivers, licensesauthorizations, ordersexpirations or terminations of waiting periods, registrationsclearances, approvals, permits Consents and authorizations approvals from Governmental Entities and the making of all necessary or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate registrations and filings and the Transactions, including the Merger, and (ii) taking of all steps as may be necessarynecessary to obtain an approval or waiver from, subject or to avoid any Action, injunction or proceeding by, any Governmental Entity, including in 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 limitations 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 6.25.3(b) of the Sellers Disclosure Schedule (collectively, the “Governmental Consents”); and (iii) to obtain 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 waiting period expirations applications and filings and seeking all such actions or terminationsnonactions, consentslicenses, permits, orders, clearances, waivers, licenses, registrations, permits, authorizations, orders 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, each Partythe Parties shall, as applicableand shall cause their Affiliates to, agrees use reasonable best efforts to (x) make, or cause undertake promptly any and all action required to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to complete the Transactions as promptly as reasonably practicable, and practicable (but in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and prior to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make any and all other action necessary filings under or advisable to avoid, prevent, eliminate or remove the actual or threatened commencement of any applicable Regulatory Law as promptly as reasonably practicableAction in any forum by or on behalf of any Governmental Entity or the issuance of any Order that would delay, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreementenjoin, none of Parentprevent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate restrain or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including to (x) proffer or consent and/or agree to any Order or other agreement providing for the Mergersale, licensing or other disposition, or the ownership holding separate, of particular assets, categories of assets or operation 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 Parentany Governmental Entity, in each case, as may be necessary to permit the Company lawful consummation of the Transaction on or any of their respective Subsidiaries of all prior to the Outside Date and except as would have or any portion of their respective businesses would reasonably be expected to materially and adversely affect the Business, taken as presently conducted and as currently proposed to be conducteda whole, Parent (following Closing. The Sellers and the Parent Subsidiaries) and Purchaser shall only be required to undertake any action contemplated by the Company (and immediately preceding sentence in the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, event that such action is conditioned on the consummation of the Transactions, 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, including the Merger.
(bc) Each of Parent The Sellers, on the one hand, and the Company shallPurchaser, 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 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 and without obtaining any consent.
(d) Without limiting the efforts referenced in generality of the rest of this Section 6.2(a) to obtain all waiting period expirations or terminations5.3, consentseach of the Parties shall cooperate, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably requestpracticable, and consult in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiryinquiry and shall, including any proceeding initiated by a private partysubject to applicable Law and reasonable confidentiality considerations, including by allowing as promptly as reasonably practicable (i) furnish to the other such necessary information and reasonable assistance as the other Party to have a reasonable opportunity to review may reasonably request in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of connection with the other Party, foregoing; (ii) promptly notify and inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other of their Affiliates to any Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions Transactions; and (iii) permit provide counsel for the other Party to review in advance any communication that it gives towith copies of all filings made by such Party, and consult all correspondence between such Party (and its advisors) with each other in advance of any in-person meetingGovernmental Entity, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or and any other information supplied by such Party and such Party’s Affiliates to a Governmental Entity or, or received from such a Governmental Entity in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereatTransactions; provided, however, that materials required to may be provided pursuant to the foregoing clauses (i) - (iii) on an outside counsel-only basis, and/or may be redacted (A) to remove references concerning competitively sensitive information and the valuation of Parent, Company or any of their respective Subsidiaries, the Business and the transactions contemplated thereby and (B) as necessary to comply with contractual arrangements and (C) as necessary arrangements. Each Party shall, subject to address reasonable privilege or confidentiality concerns; providedapplicable Law, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to permit counsel for the other under this Section 6.2(b) as “Outside Counsel Only Material” which such material and the information contained therein shall be given only Parties a reasonable opportunity 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 review in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter intoadvance, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Companyother Party in connection with, any proposed written communication, draft filing, correspondence or submission to any Governmental Entity in connection with the Transactions. Each Party agrees not to participate, or to permit any of its Affiliates or their respective Representatives to participate, in any 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 extent not prohibited by such Governmental Entity, gives the other Parties the opportunity to attend and participate.
(ce) In connection 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 without limiting its Representatives in accordance with, and shall be subject to, the foregoing, confidentiality obligations set forth in the event that Parent requests Confidentiality Agreement.
(f) During the Company to do soperiod from the date hereof until the earlier of the termination of this Agreement in accordance with its terms and the Closing Date, the Company Parties shall give any notices to third parties required under Contractsnot, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or not permit any of their respective Subsidiaries shall be required to pay Affiliates to, knowingly take any consent action that could prevent, materially delay or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in materially impede the case consummation of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing)Transaction.
Appears in 1 contract
Sources: Purchase Agreement (Act II Global Acquisition Corp.)
Efforts. (a) Subject to the terms and conditions of this Agreement, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall each party will use 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 each other in doing, all things necessary, proper or advisable under applicable Law to consummate and make effective the TransactionsMergers and the other transactions contemplated by this Agreement, including the Merger, as soon as practicable after the date hereof (and in any event by the Outside Date), including (i) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably practicable and advisable after the date hereof, all documentation to effect all necessary applicationsfilings, notices, petitions, filings statements, registrations, submissions of information, applications and other documents and to obtain as promptly as reasonably practicable (and in any event by the Outside Date) 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 Transactions, including Mergers and the Merger, and (ii) taking all steps as may be necessary, subject to the limitations in other transactions contemplated by this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvalsAgreement. In furtherance and not in limitation of the foregoing, each Party, as applicable, party hereto agrees (i) to (x) make, or cause to be made, an make appropriate filing filings of a Notification and 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 Transactions as promptly as reasonably practicableAcquisition Merger without giving effect to a Management Business Sale, and any other filings pursuant to applicable Regulatory Laws with respect to the transactions contemplated hereby, which filings shall be made promptly, but in any no event within fifteen later than ten (1510) Business Days after the execution date hereof (in the case of this Agreement the filing pursuant to clause (unless y)), or ten (10) Business Days after the date the Company enters into a later date is mutually agreed between definitive agreement (in the Partiescase of the filing pursuant to clause (x)), and as promptly as practicable after the date hereof with respect to any filing pursuant to other applicable Regulatory Laws, (ii) to use reasonable best efforts to cooperate with each other in (A) determining which filings are required to be 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 and advisable any additional information and documentary materials material that may be requested pursuant to the HSR Act or any other applicable Regulatory Laws and (v) to use reasonable best efforts to take or cause to be taken all other actions necessary necessary, proper or advisable to obtain applicable clearances, consents, authorizations, approvals or waivers and to cause the expiration or termination of the applicable waiting period periods with respect to the approval of the Mergers and any Management Business Sale under the HSR Act and any other applicable Regulatory Laws as soon promptly as reasonably practicable (and in any event by no later than the Outside End Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(b) Each of Parent and Merger Sub, on the Company one hand, and the Company, on the other hand, shall, in connection with and without limiting the efforts referenced in Section 6.2(a) 7.2(a), use its reasonable best efforts to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, ; (ii) promptly inform notify the other Party party of any communication concerning this Agreement and any of the transactions contemplated hereby to that party from any Governmental Authority and consider in 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 party from, or given by such Party party to, the Federal Trade Commission (the “FTC”), the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other U.S. or foreign Governmental Entity, by promptly providing copies to the other Party of any such written communications, Authority and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions transactions contemplated hereby; and (iii) permit the other Party party to review in advance draft any proposed communication that to be submitted by it gives to, 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 in-person meeting, telephone call or other telephonic meeting or conference (whether by video or otherwise) with, the DOJFTC, the FTC DOJ or any other Governmental Entity Authority or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited permitted by the DOJFTC, the FTC DOJ or such other applicable Governmental Entity Authority or other Person, give not agree to participate in any meeting or substantive discussion (including any discussion relating to the antitrust merits, any potential remedies, commitments or undertakings, the timing of any waivers, consents, approvals, permits, orders or authorizations, 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 investigations concerning this Agreement and any of the transactions contemplated hereby unless it consults with the other Party party and its Representatives in advance and invites the reasonable opportunity other party’s Representatives to attend and participate thereatin accordance with Regulatory Laws; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything nothing in this Agreement shall prevent a party from responding to the contrary, Parent shall be entitled or complying with a subpoena or other legal process required by Law or submitting factual information in response to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Companyrequest therefor.
(c) In connection with furtherance and without limiting the foregoing, not in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each limitation of the Company Subsidiaries to usecovenants of the parties contained in Section 7.2(a) and Section 7.2(b), each party hereto shall use its reasonable best efforts to obtain resolve objections, if any, as may be asserted with respect to the transactions contemplated by this Agreement under any third Regulatory Laws, including defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the 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 event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Authority, or private party consents challenging the Mergers, the Management Business Sale or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, each of Parent, Merger Sub and the Company shall cooperate with the other and use its respective reasonable best efforts to contest and resist any Contracts 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 are is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(d) In furtherance of, and not in limitation of, the covenants of the parties contained in Section 7.2(a), Section 7.2(b), Section 7.2(c) and Section 7.2(d), Parent and Merger Sub shall take, or cause to be taken, all such further actions as may be necessary to consummate resolve such objections, if any, as the TransactionsFTC, 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 the other transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Authority with respect to the Mergers, the Management Business Sale and the other transactions contemplated hereby so as to enable the Closing to occur as promptly as reasonably practicable and in any event no later than the End Date, including (i) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, regardless of the Merger. Notwithstanding anything consideration, the sale, divestiture, license or disposition of 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 or its Subsidiaries’ or Joint Ventures’ businesses, product lines or assets, in each case as may be required in order to effect the satisfaction of the conditions to the contrary hereinMergers set forth in Article VIII prior to the End Date and to avoid the entry of, none or to effect the dissolution of, any injunction, temporary restraining order or other Order in any suit or proceeding that would otherwise have the effect of preventing the Closing or delaying the 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 assets or business of Holdco, the 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 or Affiliates to sell, divest, license or dispose of or hold separate (or to propose or agree to 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 of their respective Subsidiaries shall or Affiliates, if such action would be required to pay any consent reasonably expected to, individually or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case aggregate, result in (after giving effect to any reasonably expected proceeds of any sale, divestiture, license or disposition) a material adverse effect on the business or financial condition of the Company, if requested the Subsidiary and the Joint Ventures, taken together as a whole.
(e) Any other provision of this Agreement notwithstanding, in connection with obtaining any approval or consent from any Person (other than a Governmental Authority) with respect to the Mergers, the Management Business Sale or the other transactions contemplated by Parent and either this Agreement, (i) reimbursed if reasonably requested in writing by Parent, the Company shall, shall cause its Subsidiaries or indemnified for shall use reasonable best efforts to cause its Significant Joint Ventures to, execute any documents, agreements and instruments and take such other actions to the extent practicable, all in such order, form and substance as reasonably requested by Parent or Parent, and (ii) subject without the prior written consent of Parent, none of the Company or any of its Subsidiaries or Significant Joint Ventures shall take any action, agree to take any action or consent to the occurrence taking of the Closingany action pursuant to this Section 7.2 (including with respect to selling, holding separate or otherwise disposing of assets or conducting its business in a specified manner).
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of this AgreementThe Company, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) Merger Sub shall use all 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 parties in doing, all things reasonably necessary, proper or advisable under applicable Law or otherwise to consummate and make effective the TransactionsMerger and the other transactions contemplated by this Agreement as promptly as practicable, including (ii) take all such actions as may be reasonably required to cause the Merger, expiration of the notice periods under Competition Laws with respect to such transactions as soon promptly as practicable after the date hereof execution of this Agreement, (iii) obtain (A) from any Governmental Entities 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 by not later than three (3) Business Days prior to the Outside Date (including any such approvals required under the HSR Act), and to avoid any action or proceeding by any Governmental Entity (including those in connection with the pre-merger notification obligations of the HSR Act) or any other Person, in connection with the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, 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 only to the extent that Parent, Merger Sub and the Company reasonably determine, after consultation and cooperation with one another, that such consent or notice should be obtained or made; provided, that none of Parent, Merger Sub or the Company shall be required to incur any liabilities, expend any funds or pay any expenses or fees in connection with obtaining such Third Party consents, (iv) cause the satisfaction of all conditions set forth in Article 6, (v) defend and seek to prevent the initiation of all actions, lawsuits or other legal, regulatory or other Proceedings to which it is a party challenging or affecting this Agreement or the consummation of the transactions contemplated by this Agreement, in each case until the issuance of a final, nonappealable Order, (vi) seek to have lifted or rescinded any injunction or restraining order which may adversely affect the ability of the parties to consummate the transactions contemplated hereby, in each case until the issuance of a final, nonappealable Order, (vii) as promptly as practicable, make or cause to be made all necessary applications and filings (and in any event by the Outside Date), including file all required HSR Act notifications within ten (i10) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably practicable and advisable Business Days after the date hereof), make any other required submissions, and pay any fees due in connection therewith (all such fees to be solely the responsibility of, and to be paid by, Parent and Merger Sub), with respect to this Agreement and the Merger required under any Competition Laws and the parties shall request early termination of the waiting period under the HSR Act in making such filings, (viii) prepare and file as promptly as practicable all documentation to effect all necessary applications, notices, petitions, filings filings, ruling requests, and other documents and to obtain as promptly as reasonably practicable (and in any event by the Outside Date) all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits permits, rulings, authorizations and authorizations clearances necessary or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate the TransactionsMerger or the other transactions contemplated by this Agreement (collectively, including the Merger“Required Approvals”), and (iiix) taking take all reasonable steps as may be necessary, subject to the limitations in this Section 6.2, necessary to obtain all such waiting period expirations or terminationsconsents and the Required Approvals, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation of the foregoing, each Party, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable after the date hereof, make all necessary filings, and advisable thereafter make any additional information other required submissions, and documentary materials that pay any fees due in connection therewith, with respect to this Agreement and the Merger required under any other applicable Law. 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, which consent shall not be unreasonably withheld, delayed or conditioned. Parent and Merger Sub shall not, except as may be requested pursuant consented to in advance in writing by the HSR Act and to take all other actions necessary Company, directly or indirectly through one or more of its affiliates, acquire any Person or material assets thereof or interest therein, if such acquisition would reasonably be expected to cause a material delay in or otherwise result in the expiration or termination failure to satisfy any of the applicable waiting period under conditions contained in Article 6 or the HSR Act as soon as reasonably practicable (and in any event by consummation of the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory LawsMerger. Notwithstanding anything to the contrary set forth contained in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries the parties hereby agree and acknowledge that neither this Section 5.4 nor the “reasonable best efforts” standard shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent torequire, or offer or agree to, take or commit be construed to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Companyrequire, the Surviving Company, Parent, Merger Sub or their respective Subsidiaries or affiliates to sell, dispose of or divest any Subsidiary of any of the foregoing assets or (B) impose any restrictionbusinesses, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall other than as would not be reasonably expected to have no a material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding adverse effect on the Company or the any Company Subsidiaries in the event the Closing occurs. FurtherSubsidiaries, if any Action, including any proceeding by taken as a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Mergerwhole, or the ownership or operation by Parent, the Company Parent or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts , taken as a whole, in order to defend or contest, including through litigation or other means, obtain any objection to, or Actions challenging, the consummation of the Transactions, and to have vacated, lifted, reversed or overturned required approval from 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, including the MergerGovernmental Entity.
(b) Each of Parent and the Company shall, in connection with and without Without limiting the efforts referenced generality of anything contained in this Section 6.2(a) to obtain all waiting period expirations or terminations5.4, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, each party hereto shall (i) cooperate in all respectsgive the other parties prompt notice of the making or commencement of any request, including inquiry, investigation, action or Proceeding by furnishing or before any Governmental Entity with respect to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with Merger or any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Partytransactions contemplated by this Agreement, (ii) promptly inform keep the other Party 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 fromparty, or given by such Party toany of its Subsidiaries, from or to any Governmental Entity with respect to the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) Merger or any other Governmental Entity, transactions contemplated by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereatthis Agreement; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems reasonably and in good ▇▇▇▇▇ ▇▇▇▇▇ advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) section as “Outside Antitrust Counsel Only Material.” which such 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 on the one hand or the Company on Company, as the othercase may be) or its legal counsel. Notwithstanding anything in this Agreement Each party hereto will consult and cooperate with the other parties with respect to and provide any necessary information and assistance as the contraryother parties may reasonably request with respect to all notices, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations submissions, or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) 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 delay review and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date discuss in advance and (y) in doing so it must act reasonably and must consider in good faith the views of the Companyother 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 Law, in connection with any such request, inquiry, investigation, action or other Proceeding, each party hereto will consult with the other parties in advance and give the other parties or their authorized representatives the opportunity to be present at each meeting or teleconference relating to such request, inquiry, investigation, action or other Proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation, action or other Proceeding.
(c) In connection with and without limiting Nothing contained in this Agreement shall give Parent or Merger Sub, directly or indirectly, the foregoing, in right to control or direct the event that Parent requests operations of the Company prior to do sothe consummation of the Merger. Prior to the Effective Time, the Company shall give any notices to third parties required under Contractsexercise, consistent with the terms and the Company shall useconditions of this Agreement, complete unilateral control and cause each of the Company Subsidiaries to use, supervision over its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing)business operations.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of this Agreement, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall each party will use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law Applicable Laws to consummate the Transactions, including Merger and the Merger, other transactions contemplated by this Agreement as soon as practicable after the date hereof (and in any event by the Outside Date)of this Agreement, including including, without limitation, (i) preparing and filing or otherwise providingfiling, in consultation with the other Party party and as promptly as reasonably practicable and advisable after the date hereofof this Agreement, all documentation to effect all necessary applications, notices, petitions, filings filings, and other documents and to obtain as promptly as reasonably practicable (and in any event by the Outside Date) all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits permits, and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity Entity, including but not limited to, the Merger Filing Documents and the filings set forth on Schedule 3.4 of the Company Disclosure Schedule in order to consummate the Transactions, including Merger or any of the Merger, other transactions contemplated by this Agreement and (ii) taking all steps as may be necessary, subject to the limitations in this Section 6.2, necessary to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation of the foregoing, each Party, as applicable, party hereto agrees to (xw) make, or cause to be made, make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions transactions contemplated hereby as promptly as reasonably practicable, and in any event within fifteen twenty (1520) Business Days after the execution of this Agreement, (x) make any filings in connection with any Regulatory Approvals as promptly as practicable, including making the filings set forth in item 2 of Schedule 8.1(d) of the Company Disclosure Schedule within 15 Business Days after the execution of this Agreement or such other time in which the Company and Parent shall otherwise agree, (unless a later date is mutually agreed between the Parties), and to y) supply as promptly as reasonably practicable and advisable any additional information and documentary materials material that may be requested pursuant to the HSR Act or by any Governmental Entity under any Regulatory Law, and to (z) take all other actions necessary to cause the expiration or termination of the applicable waiting period periods under the HSR Act or obtain all Regulatory Approvals as soon as reasonably practicable (and in any event by practicable. For the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicableavoidance of doubt, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries Parent shall be required to, and responsible for the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries payment of all or filing fees payable to any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the MergerGovernmental Entity.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a7.5(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits permits, and authorizations for the Transactions transactions contemplated by this Agreement under the HSR Act or any other Regulatory LawLaw (as defined below), (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, respects and consult with each other in connection with any communication, filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private partyparty with respect to Regulatory Laws, including by allowing the other Party 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 reasonably considering in good faith comments of the other Party, documents submitted therewith); (ii) promptly inform the other Party party of any communication received by such Party party from, or given by such Party party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or ), any other Governmental EntityEntity or, in connection with any proceeding by a private party, with any other person, including by promptly providing copies to the other Party party of any such written communications, and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions transactions contemplated by this Agreement; and (iii) permit the other Party party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call call, or other meeting or conference (whether by video or otherwise) with, videoconference with the DOJ, the FTC FTC, or any such other Governmental Entity or, in connection with any proceeding by a private party, with any or other Personperson, and to the extent not prohibited permitted by the DOJ, the FTC FTC, or any other applicable Governmental Entity or other Person, give the other Party party and/or its counsel the reasonable opportunity to attend and participate thereat; in such meetings, substantive telephone calls and conferences, provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (Ax) to remove references concerning the valuation of Parent, the Company or any of their respective Subsidiaries, (By) as necessary to comply with contractual arrangements arrangements, and (Cz) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of . Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material to be provided to the other under this Section 6.2(b7.5(b) as “Outside Antitrust Counsel Only Material.” which such 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 on the one hand or the Company on Company, as the othercase may be) or its legal counsel. Notwithstanding anything in For purposes of this Agreement to Agreement, “Regulatory Law” means Antitrust Laws, the contraryDefense Production Act of 1950, Parent shall be entitled to lead the strategy as amended, and course of action for seeking and obtaining all waiting period expirations other national, federal or terminationsstate, consentsdomestic or foreign, clearancesif any, waiversstatutes, licensesrules, regulations, orders, registrationsdecrees, approvalsadministrative and judicial doctrines and other laws that are designed or intended to prohibit, permits restrict or regulate actions on the basis of national security or national interest and authorizations for the Transactions under the HSR Act Applicable Laws relating to change of control or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with approvals required from any Governmental Entity to delay (including Governmental Entities responsible for the regulation of asset managers and not to consummate the Transactions, provided, that (xproviders of financial products and services) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views for completion of the Companytransactions contemplated by this Agreement.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing).
Appears in 1 contract
Efforts. (a) Subject From and after the date hereof, and subject to the terms and conditions of this Agreement, Parent (the Parties shall, and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall cause their respective Affiliates to, use their respective reasonable best efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Law to consummate and make effective as promptly as reasonably practicable the Transactions, including transactions contemplated by this Agreement and the Merger, as soon as practicable after the date hereof (and in any event by the Outside Date)other Transaction Documents, including (i) preparing the preparation and filing of all forms, registrations, Filings and notices required to be filed to satisfy the conditions precedent to this Agreement (including those set forth in Section 11.1) and to consummate the transactions contemplated by this Agreement as soon as practicable, (ii) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement, and (iii) obtaining necessary waivers, consents and approvals from applicable third parties required under Section 3.4 of the Georgia Disclosure Schedules. Without limiting the foregoing, (x) Georgia and Florida shall, and shall cause their respective Affiliates to, with respect to Regulatory Approvals required for the closing of the Purchased Entity Sale (the “Purchased Entity Sale Regulatory Approvals”), and (y) Georgia, Washington and Florida shall, and shall cause their respective Affiliates to, with respect to Regulatory Approvals required for the closing of the Washington Florida Interest Sale and the Mergers (including the issuance of the Washington Stock Consideration) (the “Washington Sale Regulatory Approvals”), use their respective reasonable best efforts to obtain (and shall cooperate with each other and Chicago in obtaining) any such Regulatory Approvals (which actions shall include promptly furnishing the other Party and Chicago (or otherwise providingthe applicable Governmental Entity) with all information reasonably required in connection therewith) required to be obtained or made by such Parties or any of their Affiliates in connection with the transactions contemplated by this Agreement, including filing as soon as practicable and, in consultation any event, no later than required by applicable Law, with the relevant Governmental Entity any notices required to be filed by such Parties or their Affiliates in connection with, or as necessary to consummate, the transactions contemplated by this Agreement. Each of Georgia and the Purchased Entity (and its Subsidiaries), on the one hand, and Florida, on the other hand, shall cooperate in good faith with the other Party (or its legal counsel) to satisfy all required obligations in relation to Purchased Entity Sale Regulatory Approvals. Each of Georgia, on the one hand, and Florida and Washington (and its Subsidiaries), on the other hand, shall cooperate in good faith with the other Party and as promptly as reasonably practicable Chicago (or their respective legal counsels) to satisfy all required obligations in relation to Washington Sale Regulatory Approvals. Chicago is hereby expressly made a third-party beneficiary of Section 8.1(a).
(b) The Parties shall not, and advisable shall cause their respective Affiliates not to, take any action after the date hereofof this Agreement that would reasonably be expected to impair or materially delay the obtaining of, all documentation to effect all or result in not obtaining, any Regulatory Approval, including any Purchased Entity Sale Regulatory Approvals or Washington Sale Regulatory Approval necessary applications, notices, petitions, filings and other documents and to obtain as promptly as reasonably practicable (and in any event by the Outside Date) 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 Transactions, including the Merger, and (ii) taking all steps as may be necessary, subject prior to the limitations in this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvalsClosing. In furtherance and not in limitation of Without limiting the foregoing, each PartyGeorgia, as applicableWashington and Florida shall not, agrees and shall cause their respective Affiliates not to, acquire or enter into a definitive agreement to (x) makeacquire, by merger, consolidation, stock or asset purchase or otherwise, any business or corporation, partnership or other business organization or division thereof, or cause merge or consolidate with any other Person, if such transaction would reasonably be expected to materially impair or materially delay the obtaining of, or result in not obtaining, any Regulatory Approval required to be made, an appropriate filing of a Notification and Report Form pursuant obtained to satisfy the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary conditions set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries Section 11.1(a). The Parties shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parentall of the Parties, become subject to, consent to, extend or offer or agree to, take or commit to take extend any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory LawLaw or other Law under which a Regulatory Approval is required, or enter into any agreement with any Governmental Entity related to this Agreement, the other Transaction Documents or the transactions contemplated by this Agreement.
(c) Prior to the Closing, the Parties shall each keep the other reasonably apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement and work cooperatively in connection with obtaining all Regulatory Approvals. In that regard, prior to the Closing, (x) subject to the Confidentiality Agreement and Section 6.2, with respect to the Purchased Entity Sale Regulatory Approvals, Georgia and the Purchased Entity, on the one hand, and Florida, on the other hand, and (y) subject to the Confidentiality Agreement and Section 7.2, with respect to the Washington Sale Regulatory Approvals, Georgia, on the one hand, and Florida and Washington, on the other hand, shall (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity provide any necessary information with respect to review (and, in advance and comment on drafts the case of filings and submissions and reasonably considering in good faith comments of correspondence, provide the other PartyParty (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 material correspondence with, a Governmental Entity, in each case, in connection with such Regulatory Approval; (ii) 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 material 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”) or any other of its Affiliates or Representatives from any Governmental Entity, by promptly providing copies to the other Party of any Entity regarding such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and Regulatory Approval; (iii) permit the other Party reasonable and sufficient time to review and discuss in advance any communication that it gives toadvance, and consult with each consider in good faith the views of the other Party in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) connection with, the DOJ, the FTC or any other proposed communication with any such Governmental Entity or, in connection with such Regulatory Approval; (iv) if such Party or any proceeding Affiliate or Representative of such Party receives a request for additional information or documentary material from any Governmental Entity with respect to such Regulatory Approval, then such Party shall use its reasonable best efforts to comply with such request as promptly as reasonably practicable; (v) unless otherwise required by a private partythe applicable Governmental Entity, not participate in any material meeting with any Governmental Entity in connection with such Regulatory Approval (or make oral submissions at meetings or in telephone, videoconference, or other Personconversations) unless it consults with the other Party in advance and, and to the extent not prohibited by the DOJ, the FTC or other applicable such Governmental Entity or other Personany applicable Law, give gives the other Party the reasonable opportunity to attend and participate thereat; (vi) furnish the other Party with copies of all correspondence and Filings (or, in the case of oral communications, advise the other Party of the substance thereof) between it or any of its Affiliates or Representatives, on the one hand, and any Governmental Entity, on the other hand, with respect to such Regulatory Approval; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company a Party may, as each it deems advisable and necessary, reasonably designate any competitively portions of correspondence or Filings that contain sensitive material provided personal data or commercially sensitive information relating to the other under this Section 6.2(b) such Party or its controllers or control persons as “Outside Counsel Only Materialoutside counsel only,” which such material and the information contained therein portions shall be given only to the recipient’s outside antitrust 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 (Parent on the one hand or the Company on the other) or its legal counsel, and (vii) promptly furnish the other Party with such necessary information and reasonable assistance as the other Party may reasonably request in connection with its preparation of Filings to any such Governmental Entity for any Regulatory Approval; provided that a Party may, as it deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Agreement as “outside counsel only,” which such materials and the information contained therein shall be given only to the recipient’s outside legal counsel 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 or its legal counsel; provided, however, that materials provided to another Party pursuant to this Section 8.1 may be redacted by the providing Party (i) to remove references concerning the valuation of or future plans for the Business, Washington Business, Business Sale Process or the Washington Sale Process, (ii) as necessary to comply with contractual obligations or applicable Law and (iii) as necessary to address reasonable privilege or confidentiality concerns. The cooperation covenants set forth in this Section 8.1(c) shall apply mutatis mutandis to Chicago with respect to the Regulatory Approvals (as defined in the Chicago Transaction Agreement) required to be obtained under the Chicago Transaction Agreement, and shall require the Parties and Chicago to cooperate with each other in respect of the Regulatory Approvals required hereunder and under the Chicago Transaction Agreement in the manner set forth in this Section 8.1(c) (other than the right to participate in meetings under the foregoing clause (v)). Chicago is hereby expressly made a third-party beneficiary of Section 8.1(c). For the sake of clarity, nothing in this Section 8.1 shall require Georgia or any of its Affiliates to share any Filings, documents, correspondence or other information with Washington or its Affiliates or Representatives (other than Florida) and/or secure the participation of Washington or its Affiliates or Representatives (other than Florida) in any meeting or other interaction with any Governmental Entity with respect to any Purchased Entity Sale Regulatory Approvals that are not also Washington Sale Regulatory Approvals; provided that Georgia shall answer reasonable questions of Washington related to any Purchased Entity Sale Regulatory Approvals that are not also Washington Sale Regulatory Approvals.
(d) Without limiting the foregoing, (i) the Parties shall, and shall cause their respective Affiliates to, file, as promptly as practicable notifications under the HSR Act; (ii) Georgia and Florida shall, and shall cause their respective Affiliates to, file as promptly as practicable following the date of this Agreement, any other Filing required to obtain any other Purchased Entity Sale Regulatory Approvals; and (iii) Georgia, Florida and Washington shall, and shall cause their respective Affiliates to, file as promptly as practicable, following the date of this Agreement, any other Filing required to obtain any Washington Sale Regulatory Approvals.
(e) In furtherance of the foregoing, and notwithstanding anything in this Agreement to the contrary, Florida, Washington and Georgia shall, and shall cause their Affiliates to, use reasonable best efforts to take all such action as may be necessary to avoid or eliminate each and every impediment under any applicable Law with respect to the Purchased Entity Sale and to resolve such objections, if any, as any Governmental Entity or any other Person may assert under any applicable Law with respect to the Purchased Entity Sale, so as to enable the Closing to occur as soon as reasonably practicable (and in any event so as to enable the Closing to occur prior to the Outside Date), including using reasonable best efforts (including proffering and agreeing to the remedies set forth in this Section 8.1(e)) to resolve such objections of the applicable Governmental Entities with respect to the Regulatory Approvals set forth in Section 11.1(a)(i) and Section 11.1(a)(ii), subject to the terms of the remainder of this Section 8.1(e). With respect to the Regulatory Approvals set forth in Section 11.1(a)(i) with respect to the Purchased Entity Sale, Florida shall direct the timing of proffering and agreeing to the remedies set forth in this Section 8.1(e), subject to the terms of the remainder of this Section 8.1(e), and further subject to consulting in good faith with Georgia prior to making any such timing decisions. With respect to the Regulatory Approvals set forth in Section 11.1(a)(ii) with respect to the Purchased Entity Sale, Florida, Washington and Georgia shall, and shall cause their Affiliates to, use reasonable best efforts (including proffering and agreeing to the remedies set forth in this Section 8.1(e)) to resolve such objections of the applicable Governmental Entities at both (i) their initial stage of review in order to mitigate the risk of referral of the Purchased Entity Sale by such applicable Governmental Entities to an in-depth investigation or review, and (ii) in the event of such referral, at the earliest available opportunity during the in-depth investigation or review, including at their outset, in order to secure the approval of the Purchased Entity Sale by such applicable Governmental Entities prior to the Outside Date, subject to the terms of the remainder of this Section 8.1(e). In furtherance of the foregoing, Florida shall proffer to and agree to sell, divest, lease, license, transfer, dispose of or otherwise encumber or hold separate, before or after the Closing, any assets, licenses, operations, rights, product or service lines, businesses or interests therein (each, a “Divestiture Remedy”) of the Business and/or of Florida or its Subsidiaries and agree to make any material changes (including through a licensing arrangement) or implement any restriction or condition on, or other impairment of Florida’s and/or the Purchased Entity’s or its Subsidiaries’ ability to own, retain, manage or operate, any such assets, licenses, product or service lines, businesses or interests therein and/or Florida’s ability to vote, transfer, receive dividends, or otherwise exercise full ownership rights with respect to ownership interests in the Business and/or of Florida or its Subsidiaries; provided, however, that, notwithstanding any other provisions of this Agreement, neither Florida nor any of its Subsidiaries shall be required to take or agree to take any such action that would reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business, financial condition or operations of Florida and its Subsidiaries (including for this purpose, the Purchased Entity and its Subsidiaries) from and after the Closing (but, for purposes of determining whether any action would reasonably be expected to have, individually or in the aggregate, a material adverse effect, calculated as if Florida and its Subsidiaries from and after the Closing were collectively the same size as the Business as of the date of this Agreement). Notwithstanding anything in this Agreement to the contrary, Parent none of Georgia, Florida or their respective Affiliates shall be entitled obligated to lead take or agree or commit to take any action in connection with obtaining the strategy Purchased Entity Sale Regulatory Approvals that is not conditioned on the Closing. Additionally, in connection with obtaining the Purchased Entity Sale Regulatory Approvals, Georgia and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but its Affiliates shall not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter intobe obligated to, and none of the contents ofParties shall take or agree or commit to take any action that relates to any Excluded Assets or Retained Businesses. In addition, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at Florida and, to the time of extent applicable, Washington, shall defend through litigation on the merits any claim asserted in court or before any other Governmental Entity by any party in order to avoid entry into of, or to have vacated or terminated, any timing Judgment (whether temporary, preliminary or similar agreement, the term thereof permanent) that would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate prevent the Closing prior to of the Purchased Entity Sale by the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the TransactionsDate, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing).pursuing all a
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, Parent (each of the Sellers and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) Purchaser Group shall use their respective 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 Laws to consummate and make effective the Transactions, including Sale and the Merger, other transactions contemplated by this Agreement as soon as practicable after the date hereof (and in any event by the Outside Date)reasonably practicable, including (i) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably practicable and advisable after the date hereof, all documentation to effect obtaining of all necessary applicationsactions or nonactions, notices, petitions, filings and other documents and to obtain as promptly as reasonably practicable (and in any event by the Outside Date) all waiting period expirations or terminationswaivers, consents, clearances, waiversdecisions, licensesdeclarations, ordersapprovals and, registrations, approvals, permits expirations or terminations of waiting periods from Governmental Entities and authorizations the making of all necessary or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate registrations and filings and the Transactions, including the Merger, and (ii) taking of all steps as may be necessarynecessary to obtain an approval, clearance or waiver from, or to avoid an action or proceeding by, any Governmental Entity, including in connection with any Antitrust Law (all of the foregoing, collectively, the "Governmental Consents"); (ii) the obtaining of all necessary consents, authorizations, approvals or waivers from third parties; and (iii) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated this Agreement. To the extent any out‑of‑pocket fees or expenses are required to be paid to third parties in connection with the transfer at Closing, or the use by the Purchaser Group or its Affiliates following the Closing, of contractual rights or licenses related to software used in the Business, the Sellers and the Purchaser Group shall each pay fifty percent (50%) of all such fees or expenses; provided, however, the Sellers shall, jointly and severally, pay one hundred percent (100%) of any such fees and expenses (A) payable pursuant to the SAP Contract or any Contracts with Oracle Corporation or its Affiliates or (B) which constitute Losses for which the Purchaser Indemnified Parties would otherwise be indemnified pursuant Section 9.2, subject to the limitations in this Section 6.2, terms of Article IX.
(b) Subject to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders the terms and approvals. In furtherance conditions herein provided and not in limitation of without limiting the foregoing, each Party, as applicable, agrees to the Purchaser Group and the Sellers shall (xi) make, make or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly soon as reasonably practicable, all appropriate notification filings, forms and submissions required under any Antitrust Laws with the Governmental Entities identified in any event within fifteen Section 4.3(b) of the Seller Disclosure Schedule on or prior to the date which is five (155) Business Days after following the date hereof; and (ii) 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 or third parties in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (unless a later B) to the extent not made prior to the date is mutually agreed between the Parties)of this Agreement or otherwise, making, or causing to be made, as soon as reasonably practicable, all such applications and to 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 supply as promptly as reasonably practicable and advisable any additional information and documentary materials such information, documentation, other material or testimony that may be requested pursuant to by any Governmental Entity, including by complying at the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as earliest reasonably practicable (date with any request under or with respect to any Governmental Consent and in any event such other applicable Laws for additional information, documents or other materials received by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to Sellers or the contrary set forth in this Agreement, none of Parent, Merger Sub Purchaser Group or any of their respective Subsidiaries Affiliates from any Governmental Entity in connection with such applications or filings or the transactions contemplated by this Agreement. The Purchaser Group shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to responsible for paying one hundred percent (A100%) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion filing fees of their respective businesses as presently conducted all Parties associated with all appropriate notification filings, forms and as currently proposed to be conducted, Parent (and submissions required under the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the MergerHSR Act.
(bc) Each of Parent and the Company shallFurther, in connection with and without limiting the efforts referenced in generality of the rest of this Section 6.2(a) to obtain all waiting period expirations or terminations4.3, consentseach of the Parties shall cooperate, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably requestpracticable, and consult in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiryinquiry and shall, including any proceeding initiated by a private partysubject to applicable Law, including by allowing promptly (i) furnish to the other Party to have a such necessary information and reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of assistance as the other Party, Parties may request in connection with the foregoing; (ii) promptly inform the other Party Parties of any material communication received by such Party from, with or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or to any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case Entity regarding any of the Transactions transactions contemplated by this Agreement; and (iii) permit provide counsel for the other Party to review in advance any communication that it gives toParties with copies of all filings made by such Party, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference all correspondence between such Party (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreementadvisors) with any Governmental Entity and any other information supplied by such Party and such Party's Subsidiaries to delay a Governmental Entity or received from such a Governmental Entity in connection with the transactions contemplated by this Agreement. Each Party shall, subject to applicable Law and not attorney‑client privilege, permit counsel for the other Parties to consummate the Transactionsreview in advance, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In other Parties in connection with, any proposed written communication, draft filing, correspondence or submission to any Governmental Entity in connection with and without limiting the foregoingtransactions contemplated by this Agreement. The Parties shall not participate, or to permit their Subsidiaries to participate, in any meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the event that Parent requests transactions contemplated by this Agreement unless it consults with the Company to do soother Parties in advance and, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary hereinextent not prohibited by such Governmental Entity, none of Parent, gives the Company or any of their respective Subsidiaries shall be required other Parties the opportunity to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent attend and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing)participate.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions set forth in this Agreement, each of the parties hereto shall use its reasonable best efforts to take, or to cause to be taken, all 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, all things necessary, proper or advisable to consummate and make effective, as promptly as practicable, the Offer and Merger and the other transactions contemplated hereby, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Company Approvals and the Parent Approvals, from Governmental Authorities 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 Authorities, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, including a waiver by the lenders of the change of control and merger restrictions contained in the Fourth Amended and Restated Credit Agreement among the Company, Citibank, N.A., BNP Paribas and the lenders thereunder, dated as of May 16, 2008, as amended, (iii) the giving of notice, if required, under real property leases, (iv) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the 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 contemplated hereby. In furtherance of the foregoing, the Company may, but in no event shall the Company or any of its Subsidiaries be required to, pay prior to the Board Appointment Date any fee, penalties or other consideration to any third party to obtain any consent or approval required for the consummation of the Offer or the Merger. No party hereto shall take any action that would reasonably be expected to prevent or materially delay or impede the receipt of any necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Company Approvals and the Parent Approvals, from Governmental Authorities.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, if required under the HSR Act, the Company and Parent shall (i) promptly, but in no event later than 5:30 p.m. Eastern Daylight Savings time on the fifth Business Day after the date of this Agreement, Parent (file any and all Notification and Report Forms required under the HSR Act with respect to the Offer, the Merger and the Parent Subsidiariesother transactions contemplated hereby, and use reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act, (ii) use reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, Authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Authorities in connection with the execution and delivery of this Agreement and the Company consummation of the transactions contemplated hereby and (y) timely making all such filings and the Company Subsidiariestimely obtaining all such consents, permits, Authorizations or approvals, (iii) shall 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 to do, or cause to be done, all other things necessary, proper or advisable under applicable Law to consummate and make effective the TransactionsOffer, including the MergerMerger and the other transactions contemplated hereby.
(c) Each of Parent and the Company shall, as soon as practicable after the date hereof (and in any event upon request by the Outside Date)other, including (i) preparing and filing or otherwise providing, in consultation with furnish the other Party with all information concerning itself, its Subsidiaries, directors, officers and equityholders, and such other matters as promptly as may be reasonably 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 reasonably practicable (and in any event by the Outside Date) all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations necessary or advisable in connection with any statement, filing, notice or application made by or on behalf of Parent, the Company or any of their respective Subsidiaries to be obtained 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 completion 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 Entity 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 order to consummate the Transactions, including the Mergeradvance, and (ii) taking all steps as may be necessaryconsider in good faith the views of the other party in connection with, subject 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 limitations in this Section 6.2extent not prohibited by such Governmental Authority, gives the other party the opportunity to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders attend and approvals. participate.
(d) In furtherance and not in limitation of the foregoing, each Party, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination covenants of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth parties contained in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. FurtherSection 6.10, if any Actionadministrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatenedthreatened to be instituted) challenging the Offer, the Merger or seeking to restrainany other transaction contemplated by this Agreement as violative of any Regulatory Law, prohibit or place conditions on the consummation each of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of and Parent shall cooperate in all or any portion of their respective businesses as presently conducted respects with each other and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their its respective reasonable best efforts to defend contest and resist any such action or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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 TransactionsOffer, including the MergerMerger or any other transaction contemplated hereby.
(be) Each For purposes of Parent 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 Company shallconsent, clearance or approval of, any Governmental Authority, or that otherwise may cause any restriction, in connection with the Offer, the Merger and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminationstransactions contemplated thereby, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts ▇▇▇▇▇▇▇ Act of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to1890, the ▇▇▇▇▇▇▇ Antitrust Division Act of 1914, the Department of Justice (the “DOJ”)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 “FTC”) purpose or any other Governmental Entityeffect of monopolization or restraint of trade or lessening competition through merger or acquisition, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and Law governing the contents of, direct or indirect ownership or control of any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each operations or assets of the Company and its Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (iiiii) subject to any Law with the occurrence purpose of protecting the Closing)national security or the national economy of any nation.
Appears in 1 contract
Efforts. (a) Subject Each of the parties agrees to the terms and conditions of this Agreement, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate and make effective as promptly as practicable the transactions contemplated hereby and to cooperate with the other in connection with the foregoing, including using its commercially reasonable efforts (i) to obtain all necessary waivers, consents and approvals from other parties to the Contracts listed in Exhibit 7.2(c)(i) or such other parties as Purchaser may reasonably request (it being understood and agreed that Sellers shall not be required to make any payment or furnish any other consideration to obtain any such consent) and to send notices to customers and data source providers in the manner required in any Acquired Customer Contract or Acquired Data Sourcing Contract, (ii) subject to Sections 5.2(b) and 5.2(c), to obtain all consents, approvals and authorizations that are required to be obtained under applicable Law any federal, state, local or foreign law or regulation (it being understood and agreed that except with respect to registration and filing fees, Sellers and Purchaser shall not be required to make any payment or furnish any other consideration or make any accommodation to obtain any such consent, approval or authorization), (iii) subject to Section 5.2(c), to lift or rescind any injunction or restraining order or other order adversely affecting the ability of the parties hereto to consummate the Transactionstransactions contemplated hereby, including the Merger, as soon as practicable after the date hereof (and in any event by the Outside Date), including (iiv) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably practicable and advisable after the date hereof, all documentation to effect all necessary applicationsregistrations and filings, notices, petitions, filings and other documents and to obtain as promptly as reasonably practicable (and in if any event by the Outside Date) 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 Transactions, including the Merger, and (iiv) taking to fulfill all steps as may be necessaryconditions to this Agreement. Sellers and Purchaser further covenant and agree, subject to the limitations in this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation of the foregoing, each Party, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration threatened or termination of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub pending preliminary or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, and to have vacated, lifted, reversed or overturned any decree, judgment, permanent injunction or other order, whether temporarydecree or ruling or statute, preliminary rule, regulation or permanent, executive order that is in effect and that prohibits, prevents or restricts consummation would adversely affect the ability of the Transactionsparties hereto to consummate the transactions contemplated hereby, including to use their respective commercially reasonable efforts to prevent the Mergerentry, enactment or promulgation thereof, as the case may be.
(b) Each of Parent Sellers and the Company Purchaser shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as before the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party expiration of any communication received by such Party fromrelevant legal deadline, or given by such Party tobut in no event later than five Business Days following the execution and delivery of this Agreement, file with (i) the Antitrust Division of the Department of Justice (the “DOJ”), the United States Federal Trade Commission (the “FTC”) or and the United States Department of Justice (“DOJ”), the notification and report form required for the transactions contemplated hereby and any supplemental information requested in connection therewith pursuant to the HSR Act, which forms shall specifically request early termination of the waiting period prescribed by the HSR Act and (ii) any other Governmental Entity, by promptly providing copies any other filings, reports, information and documentation required for the transactions contemplated hereby pursuant to any other Antitrust Laws. Each of Sellers and Purchaser shall furnish to each other’s counsel such necessary information and reasonable assistance as the other Party of any such written communications, and of any communication received or given may request in connection with its preparation of any proceeding by a private partyfiling or submission that is necessary under the HSR Act and any other Antitrust Laws. Sellers and Purchaser shall each bear their respective expenses and fees incurred and payable in connection with such filings; in that regard, in Purchaser, shall pay the applicable HSR Act filing fee.
(c) Sellers and Purchaser shall use their commercially reasonable efforts to obtain promptly any clearance required under the HSR Act and any other Antitrust Laws for the consummation of this Agreement and the transactions contemplated hereby and shall keep each case regarding any other apprised of the Transactions and (iii) permit the other Party to review in advance status of any communication that it gives tocommunications with, and consult with each other in advance of any in-person meeting, telephone call inquiries or other meeting or conference (whether by video or otherwise) with, the DOJrequests for additional information from, the FTC or and the DOJ and any other Governmental Entity or, in connection and shall comply promptly with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC such inquiry or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereatrequest; provided, however, that materials Purchaser shall not be required to be provided pursuant consent to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation divestiture or other disposition of Parent, Company or any of their respective Subsidiariesits or its Affiliates’ assets or to any other structural or conduct relief and Purchaser and its Affiliates shall have no obligation to contest, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege administratively or confidentiality concernsin court, any ruling, order or other action of any Governmental Entity respecting the transactions contemplated by this Agreement; provided, further, however, that Sellers and Purchaser shall both promptly respond to the DOJ or the FTC to a Request for Additional Information. In addition, each party shall furnish promptly to any other party upon request a copy of Parent each report, schedule and other document filed or received by it pursuant to the requirements of any applicable law or filed by it with any Governmental Entity in connection with this Agreement and the Company maytransactions contemplated hereby.
(d) Sellers and Purchaser hereto commit to instruct their respective counsel to cooperate with each other and use commercially reasonable efforts to facilitate and expedite the identification and resolution of any such issues and, as each deems advisable and necessaryconsequently, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such material expiration of the applicable HSR Act waiting period 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 on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions periods under the HSR Act or any other Regulatory LawAntitrust Laws at the earliest practicable dates. Said commercially reasonable efforts and cooperation include, including but are not limited to directing and unilaterally determining to, counsel’s undertaking (i) any decision to pull keep each other appropriately informed of communications from and refile any Governmental Filing or voluntarily extend any waiting period or review period under to personnel of the HSR Act or any other applicable Regulatory Law reviewing antitrust authority, and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) confer with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In connection each other regarding appropriate contacts with and without limiting the foregoing, response to personnel of said antitrust authority whether orally or in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing)writing.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Interactive Data Corp/Ma/)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, Parent each of the parties hereto shall use its reasonable best efforts to take, or to cause to be taken, all 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, all things necessary, proper or advisable to consummate and make effective, as promptly as practicable, the Offer and Merger and the other transactions contemplated hereby, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Company Approvals and the Parent Subsidiaries) Approvals, from Governmental Entities and the Company (making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance, or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties, (iii) the 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 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 contemplated hereby; provided, however, that in no event shall the Company Subsidiariesor any of its Subsidiaries be required to pay prior to the Board Appointment Date any fee, penalties or other consideration to any third party to obtain any consent or approval required for the consummation of the Offer or the Merger. No party hereto shall take any action that would reasonably be expected to prevent or materially delay or impede the receipt of any necessary actions or nonactions, waivers, consents, clearances, approvals, and expirations or terminations of waiting periods, including the Company Approvals and the Parent Approvals, from Governmental Entities.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the Company and Parent shall (i) promptly, but in no event later than 5:30 p.m. Eastern Daylight Savings time on July 28, 2009, file any and all Notification and Report Forms required under the HSR Act with respect to the Offer, 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) use reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely obtaining all such consents, permits, authorizations or approvals, (iii) supply to any Governmental Entity as promptly as practicable any additional information or documentary material that may be requested pursuant to any Regulatory Law or by such Governmental Entity, and (iv) use reasonable best efforts to take, or cause to be taken, all other actions and to do, or cause to be done, all other things necessary, proper or advisable under applicable Law to consummate and make effective the TransactionsOffer, including the MergerMerger and the other transactions contemplated hereby.
(c) Each of Parent and the Company shall, as soon as practicable after the date hereof (and in any event upon request by the Outside Date)other, including (i) preparing and filing or otherwise providing, in consultation with furnish the other Party with all information concerning itself, its Subsidiaries, directors, officers and stockholders and such other matters as promptly as may be reasonably 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 reasonably practicable (and in any event by the Outside Date) all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations necessary or advisable in connection with any statement, filing, notice or application made by or on behalf of Parent, the Company or any of their respective Subsidiaries to be obtained any third party and/or any Governmental Entity in A-30 connection with the Merger and the transactions contemplated by this Agreement. Subject to applicable legal limitations and the instructions of any Governmental Entity, the Company and Parent shall keep each other apprised of the status of matters relating to the completion of the Offer, the Merger and the other transactions contemplated 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 Merger or transactions. The Company and Parent shall permit counsel for the other party reasonable opportunity to review in order to consummate the Transactions, including the Mergeradvance, and (ii) taking all steps as may be necessaryconsider in good faith the views of the other party in connection with, subject 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 limitations in this Section 6.2extent not prohibited by such Governmental Entity, gives the other party the opportunity to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders attend and approvals. participate.
(d) In furtherance and not in limitation of the foregoing, each Party, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination covenants of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth parties contained in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. FurtherSection 6.4, if any Actionadministrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatenedthreatened to be instituted) challenging the Offer, the Merger or seeking to restrainany other transaction contemplated by this Agreement as violative of any Regulatory Law, prohibit or place conditions on the consummation each of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of and Parent shall cooperate in all or any portion of their respective businesses as presently conducted respects with each other and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their its respective reasonable best efforts to defend contest and resist any such action or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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 TransactionsOffer, including the MergerMerger or any other transaction contemplated hereby.
(be) Each For purposes of Parent 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 Company shallconsent, clearance or approval of, any Governmental Entity, or that otherwise may cause any restriction, in connection with the Offer, the Merger and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminationstransactions contemplated thereby, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts S▇▇▇▇▇▇ Act of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to1890, the C▇▇▇▇▇▇ Antitrust Division Act of 1914, the Department of Justice (the “DOJ”)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 “FTC”) purpose or any other Governmental Entityeffect of monopolization or restraint of trade or lessening competition through merger or acquisition, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and Law governing the contents of, direct or indirect ownership or control of any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each operations or assets of the Company and its Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (iiiii) subject to any Law with the occurrence purpose of protecting the Closing)national security or the national economy of any nation.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of this Agreementherein provided, Parent (and the Parent Subsidiaries) Purchaser, ▇▇ ▇▇▇▇▇▇▇, Management Blocker and the Company (and the Company Subsidiaries) shall use its respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate the Transactions, including the Merger, as soon as practicable after the date hereof (and in any event by the Outside Date), including (i) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably 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 reasonably practicable (and in any event by the Outside Date) 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 Transactions, including the Merger, and (ii) taking all steps as may be necessary, subject to the limitations in this Section 6.2efforts, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation of the foregoing, each Party, as applicable, agrees to (x) make, promptly make or cause to be made, an and to the extent applicable: (i) as soon as practicable and in any event, within twenty (20) Business Days after the date of this Agreement, all appropriate filing filings of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions transactions contemplated by this Agreement; and (ii) as promptly as reasonably practicable, and in any event within fifteen (15) Business Days practicable after the execution date of this Agreement, all other necessary filings, forms, declarations, notifications, registrations and notices with other Governmental Entities under any other Antitrust Law applicable to the transactions contemplated by this Agreement (unless a later collectively the “Government Approvals”). Each Party shall use its reasonable best efforts to: (w) respond at the earliest practicable date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any requests for additional information made by the U.S. Department of Justice, the Federal Trade Commission, or any other Governmental Entity in connection with any Antitrust Law applicable to the transactions contemplated by this Agreement; (x) act in good faith and documentary materials that may be requested pursuant reasonably cooperate with the other party in connection with any investigation by any Governmental Entity in connection with any Antitrust Law applicable to the transactions contemplated by this Agreement; (y) furnish to each other all information required for any filing, form, declaration, notification, registration and notice under any Antitrust Law applicable to the transactions contemplated by this Agreement, subject to advice of such party’s antitrust counsel; and (z) request early termination of the waiting period under the HSR Act and to take all other actions reasonably necessary and consistent with this Section 7.2 to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions periods under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing Antitrust Law applicable to the other as promptly as practicable information and assistance as transactions contemplated by this Agreement. In connection with the foregoing, each party hereto shall use its reasonable best efforts: (1) to give the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a party reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party prior notice 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”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communicationswith, and of any communication received proposed understanding or given in connection with agreement with, any proceeding by a private party, in each case Governmental Entity regarding any of the Transactions investigations, proceedings, filings, forms, declarations, notifications, registrations or notices, and (iii) permit the other Party to review and discuss in advance any communication that it gives toadvance, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
other in connection with, any proposed communication, understanding or agreement with any Governmental Entity, in each case under any Antitrust Law applicable to the transactions contemplated by this Agreement, subject to advice of such party’s antitrust counsel; (c2) In not to participate in any meeting or conversation, or engage in any substantive conversation with any Governmental Entity in respect of any filings or inquiry under any Antitrust Law applicable to the transactions contemplated by this Agreement, without giving the other party prior notice of the meeting or conversation and, unless prohibited by such Governmental Entity, the opportunity to attend and/or participate therein; (3) if attending a meeting, conference, or conversation with a Governmental Entity in connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything Antitrust Law applicable to the contrary hereintransactions contemplated by this Agreement, none of Parentfrom which the other party is prohibited by applicable Law or by the applicable Governmental Entity from participating in or attending, to keep the Company other reasonably apprised with respect thereto; and (4) to consult and cooperate with the other party in connection with any information or proposals submitted in connection with any of their respective Subsidiaries shall be required to pay any consent proceeding, inquiry, or other similar fee, payment or consideration, make proceeding under any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject Antitrust Law applicable to the occurrence of the Closing)transactions contemplated by this Agreement.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of this Agreement, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall each party will use 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 each other in doing, all things necessary, proper or advisable under applicable Law to consummate and make effective the TransactionsMergers and the other transactions contemplated by this Agreement, including the Merger, as soon as practicable after the date hereof (and in any event by the Outside Date), including (i) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably practicable and advisable after the date hereof, all documentation to effect all necessary applicationsfilings, notices, petitions, filings statements, registrations, submissions of information, applications and other documents and to obtain as promptly as reasonably practicable (and in any event by the Outside Date) 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 Transactions, including Mergers and the Merger, and (ii) taking all steps as may be necessary, subject to the limitations in other transactions contemplated by this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvalsAgreement. In furtherance and not in limitation of the foregoing, each Party, as applicable, party hereto agrees (i) to (x) make, or cause to be made, an make appropriate filing filings of a Notification and 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 Transactions as promptly as reasonably practicableAcquisition Merger without giving effect to a Management Business Sale, and any other filings pursuant to applicable Regulatory Laws with respect to the transactions contemplated hereby, which filings shall be made promptly, but in any no event within fifteen later than ten (1510) Business Days after the execution date hereof (in the case of this Agreement the filing pursuant to clause (unless y)), or ten (10) Business Days after the date the Company enters into a later date is mutually agreed between definitive agreement (in the Partiescase of the filing pursuant to clause (x)), and as promptly as practicable after the date hereof with respect to any filing pursuant to other applicable Regulatory Laws, (ii) to use reasonable best efforts to cooperate with each other in (A) determining which filings are required to be 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 and advisable any additional information and documentary materials material that may be requested pursuant to the HSR Act or any other applicable Regulatory Laws and (v) to use reasonable best efforts to take or cause to be taken all other actions necessary necessary, proper or advisable to obtain applicable clearances, consents, authorizations, approvals or waivers and to cause the expiration or termination of the applicable waiting period periods with respect to the approval of the Mergers and any Management Business Sale under the HSR Act and any other applicable Regulatory Laws as soon promptly as reasonably practicable (and in any event by no later than the Outside End Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(b) Each of Parent and Merger Sub, on the Company one hand, and the Company, on the other hand, shall, in connection with and without limiting the efforts referenced in Section 6.2(a) 7.2(a), use its reasonable best efforts to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, ; (ii) promptly inform notify the other Party party of any communication concerning this Agreement and any of the transactions contemplated hereby to that party from any Governmental Authority and consider in 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 party from, or given by such Party party to, the Federal Trade Commission (the "FTC"), the Antitrust Division of the Department of Justice (the “"DOJ”), the Federal Trade Commission (the “FTC”") or any other U.S. or foreign Governmental Entity, by promptly providing copies to the other Party of any such written communications, Authority and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions transactions contemplated hereby; and (iii) permit the other Party party to review in advance draft any proposed communication that to be submitted by it gives to, 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 in-person meeting, telephone call or other telephonic meeting or conference (whether by video or otherwise) with, the DOJFTC, the FTC DOJ or any other Governmental Entity Authority or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited permitted by the DOJFTC, the FTC DOJ or such other applicable Governmental Entity Authority or other Person, give not agree to participate in any meeting or substantive discussion (including any discussion relating to the antitrust merits, any potential remedies, commitments or undertakings, the timing of any waivers, consents, approvals, permits, orders or authorizations, 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 investigations concerning this Agreement and any of the transactions contemplated hereby unless it consults with the other Party party and its Representatives in advance and invites the reasonable opportunity other party's Representatives to attend and participate thereatin accordance with Regulatory Laws; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything nothing in this Agreement shall prevent a party from responding to the contrary, Parent shall be entitled or complying with a subpoena or other legal process required by Law or submitting factual information in response to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Companyrequest therefor.
(c) In connection with furtherance and without limiting the foregoing, not in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each limitation of the Company Subsidiaries to usecovenants of the parties contained in Section 7.2(a) and Section 7.2(b), each party hereto shall use its reasonable best efforts to obtain resolve objections, if any, as may be asserted with respect to the transactions contemplated by this Agreement under any third Regulatory Laws, including defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the 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 event that any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Authority, or private party consents challenging the Mergers, the Management Business Sale or any other transaction contemplated by this Agreement, or any other agreement contemplated hereby, each of Parent, Merger Sub and the Company shall cooperate with the other and use its respective reasonable best efforts to contest and resist any Contracts 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 are is in effect and that prohibits, prevents or restricts consummation of the transactions contemplated by this Agreement.
(d) In furtherance of, and not in limitation of, the covenants of the parties contained in Section 7.2(a), Section 7.2(b), Section 7.2(c) and Section 7.2(d), Parent and Merger Sub shall take, or cause to be taken, all such further actions as may be necessary to consummate resolve such objections, if any, as the TransactionsFTC, 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 the other transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Authority with respect to the Mergers, the Management Business Sale and the other transactions contemplated hereby so as to enable the Closing to occur as promptly as reasonably practicable and in any event no later than the End Date, including (i) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, regardless of the Merger. Notwithstanding anything consideration, the sale, divestiture, license or disposition of 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 or its Subsidiaries' or Joint Ventures' businesses, product lines or assets, in each case as may be required in order to effect the satisfaction of the conditions to the contrary hereinMergers set forth in Article VIII prior to the End Date and to avoid the entry of, none or to effect the dissolution of, any injunction, temporary restraining order or other Order in any suit or proceeding that would otherwise have the effect of preventing the Closing or delaying the 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 assets or business of Holdco, the 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 or Affiliates to sell, divest, license or dispose of or hold separate (or to propose or agree to 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 of their respective Subsidiaries shall or Affiliates, if such action would be required to pay any consent reasonably expected to, individually or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case aggregate, result in (after giving effect to any reasonably expected proceeds of any sale, divestiture, license or disposition) a material adverse effect on the business or financial condition of the Company, if requested the Subsidiary and the Joint Ventures, taken together as a whole.
(e) Any other provision of this Agreement notwithstanding, in connection with obtaining any approval or consent from any Person (other than a Governmental Authority) with respect to the Mergers, the Management Business Sale or the other transactions contemplated by Parent and either this Agreement, (i) reimbursed if reasonably requested in writing by Parent, the Company shall, shall cause its Subsidiaries or indemnified for shall use reasonable best efforts to cause its Significant Joint Ventures to, execute any documents, agreements and instruments and take such other actions to the extent practicable, all in such order, form and substance as reasonably requested by Parent or Parent, and (ii) subject without the prior written consent of Parent, none of the Company or any of its Subsidiaries or Significant Joint Ventures shall take any action, agree to take any action or consent to the occurrence taking of the Closingany action pursuant to this Section 7.2 (including with respect to selling, holding separate or otherwise disposing of assets or conducting its business in a specified manner).
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of this Agreement, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) Parent shall use their reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law Applicable Law, as promptly as practicable, to cause the conditions to Closing to be satisfied and to consummate the Transactions, including the Merger, as soon as practicable after the date hereof (and in any event transactions contemplated by the Outside Date)this Agreement, including (i) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably practicable and advisable after the date hereof, with any Governmental Authority or other third party all documentation to effect all necessary applicationsfilings, notices, petitions, filings and other documents and to obtain as promptly as reasonably practicable (and in any event by the Outside Date) all waiting period expirations or terminations, consents, clearances, waivers, licenses, ordersstatements, registrations, approvalssubmissions of information, permits applications and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate the Transactions, including the Merger, and other documents; (ii) taking obtaining and maintaining all steps as may be necessary, subject to the limitations in this Section 6.2, to obtain all such waiting period expirations or terminationsmaterial approvals, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders expirations or terminations of waiting periods, and approvalsother confirmations required to be obtained from any Governmental Authority or other third party that are necessary, proper or advisable to consummate the transactions contemplated by this Agreement; and (iii) completing the remediation matters described in clause (ii) of Section 6.10(b) of the Company Disclosure Schedule prior to the Measurement Date; provided that the parties hereto understand and agree that the reasonable best efforts of any party hereto shall not be deemed to include (A) divesting or otherwise holding separate (including by establishing a trust or otherwise), or taking any other action (or otherwise agreeing to do any of the foregoing) with respect to any of its or the other party’s businesses, assets or properties or agree to limit the ownership or operation by Parent or any of its Affiliates of any businesses, assets or properties, including without limitation the businesses, assets, and properties to be acquired under this Agreement, (B) entering into any settlement, undertaking, consent decree, stipulation or agreement with any Governmental Authority in connection with the transactions contemplated hereby or (C) litigating, challenging or taking any action with respect to any action or proceeding by any Governmental Authority. Notwithstanding the foregoing and any other provision of this Agreement, any act taken by Parent in respect of this Section 8.01 may be conditioned upon consummation of the Merger. Subject to the proviso to the immediately preceding sentence, each of the Company and Parent will not, and will not direct any of their respective Affiliates to, take any actions that would, or that could reasonably be expected to, result in any of the conditions set forth in Article 9 either being delayed or not being satisfied.
(b) In furtherance and not in limitation of the foregoing, each Party, as applicable, agrees to of Parent and the Company shall (xA) make, or cause to be made, make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions transactions contemplated hereby as promptly as reasonably practicable, and in any event within fifteen (15) 10 Business Days Days, after the execution of this Agreement date hereof, (unless a later B) make appropriate filings pursuant to any other Required Antitrust Law with respect to the transactions contemplated hereby as promptly as practicable after the date is mutually agreed between the Parties), hereof and to (C) supply as promptly as reasonably practicable and advisable any additional information and documentary materials material that may be requested pursuant to the HSR Act in connection therewith and to use their reasonable best efforts to take or cause to be taken all other actions consistent with this Section 8.01 necessary to cause the expiration or termination of the applicable waiting period periods under the HSR Act such Required Antitrust Law as soon as practicable. Each of the Company and Parent will furnish to the other such information and assistance as the other reasonably practicable may request in connection with its preparation of any filing or submission under the Required Antitrust Laws.
(c) In furtherance and not in any event by limitation of Section 8.01(a), each of the Outside DateCompany and Parent shall exercise 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 to this Agreement in doing, all things necessary, proper or advisable to satisfy the CFIUS Condition, including (i) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, but in no event later than 15 Business Days after the date of this Agreement, make the draft filing with CFIUS contemplated under 31 C.F.R. § 800.401(f) with respect to the Merger and to supply other transactions contemplated hereby and engage in the pre-notice consultation process with CFIUS, (ii) following such pre-notice consultation, as promptly as reasonably practicable and, in any event, within five Business Days of notification from CFIUS that the draft filing meets all requirements of 31 C.F.R. § 800.402 of the regulations and advisable any additional is, accordingly, complete, file with CFIUS a voluntary notice as contemplated by 31 C.F.R. § 800.401(a) and with respect to Parent and Merger Subsidiary the personal identifier information and documentary materials that may required to be requested under any Regulatory Laws. Notwithstanding anything submitted separately from such notice as contemplated by 31 C.F.R. § 800.402(c)(6)(vi)(B) with respect to the contrary set forth Merger and other transactions contemplated hereby, (iii) promptly and, in this Agreementall events, none consistent with any deadline imposed under Exon-▇▇▇▇▇▇ or other Applicable Law, comply with any request received by any of Parent, Merger Sub them or any of their respective Subsidiaries shall be required tofrom any Governmental Authority for any certification, additional information, documents or other materials in respect of such notice or such transactions, (iv) ensure that any information furnished in respect of this Section 8.01(c) is true, complete and correct in all material respects, and (v) cooperate with each other in connection with any such filing (including, to the extent permitted by Applicable Law, providing copies, or portions thereof, of all such documents to the non-filing parties to this Agreement prior to filing and considering all reasonable additions, deletions or changes suggested in connection therewith) and in connection with resolving any investigation or other inquiry of any Governmental Authority under Exon-▇▇▇▇▇▇ with respect to any such filing or any such transaction. Each of the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their its reasonable best efforts to defend furnish to the other all information required for any such filing or contestproceeding under Exon-▇▇▇▇▇▇. To the extent permitted by Applicable Law, including through litigation each of the Company and Parent shall promptly inform the other of any oral communication with, and provide copies of written communications with, any Governmental Authority regarding any such filings or proceedings, provided, however, that neither Parent nor Merger Subsidiary shall be required by the terms of this Section 8.01(c) to disclose to the Company nonpublic information about Parent or its Affiliates that Parent considers to be confidential or proprietary. Neither the Company nor Parent shall independently participate in any formal meeting with any Governmental Authority in respect of any such filings, investigation or other meansinquiry without giving the other party sufficient prior notice of the meeting and, any objection to, or Actions challengingto the extent permitted by such Governmental Authority, the consummation opportunity for the other party to attend and/or participate in such meeting. Subject to Applicable Law, each of the TransactionsCompany and Parent will consult and cooperate with the other in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and to have vacated, lifted, reversed proposals made or overturned any decree, judgment, injunction submitted by or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation on behalf of the TransactionsCompany or Parent relating to proceedings under Exon-▇▇▇▇▇▇. Without limiting the foregoing, including the Merger.
(b) Each each of Parent and the Company shallshall use its reasonable best efforts to take such actions and agree to such requirements or conditions to mitigate any national security concerns as may be requested or required by CFIUS in connection with, or as a condition of, the satisfaction of the CFIUS Condition; provided, however, that, notwithstanding any provision of this Agreement to the contrary, neither Parent nor the Company shall be required to agree to any term or take any action in connection with the satisfaction of the CFIUS Condition that (i) is not conditioned upon consummation of the Merger, (ii) it is excused from taking pursuant to the proviso to the first sentence to Section 8.01(a), or (iii) would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect (provided that, for purposes of this Section 8.01(c), clause (E) in the definition of “Company Material Adverse Effect” shall be inapplicable).
(d) To the extent permitted by Applicable Law and without limiting subject to the proviso to the first sentence of Section 8.01(a), each of Parent and the Company shall use its reasonable best efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, Authority and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions transactions contemplated hereby, and (iii) permit the other Party party to review in advance any communication that given by it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other such Governmental Entity Authority or, in connection with any proceeding by a private party, with any other Person, and and, to the extent reasonably practicable and not prohibited by the DOJ, the FTC or other applicable Governmental Entity Authority or other Person, give the other Party party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements in such meetings and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Companyconferences.
(ce) In connection with furtherance and without limiting the foregoingnot in limitation of Section 8.01(a), in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, and Parent shall exercise its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty)take, or amend or modify any Contract, cause to obtain such third party consents be taken (exceptincluding, in the case of the Company, if requested by Parent its Subsidiaries), all actions and either to do, or cause to be done, and to assist and cooperate with the other parties to this Agreement in doing, all things necessary, proper or advisable to satisfy the 60-Day Notice Condition, including (i) reimbursed the Company, as the registrant, shall submit to the DDTC the ITAR 60-Day Notice relating to the Merger and the transactions contemplated by this Agreement as promptly as reasonably practicable, but in no event later than five Business Days after the date of the receipt by the Company of the registration complete letter or indemnified for by Parent or another written indication from DDTC that the Company has properly registered as a manufacturer under the ITAR in accordance with Section 122.2 of the ITAR, (ii) subject promptly and, in all events, consistent with any deadline imposed under the ITAR or other Applicable Law, comply with any request received by it or any of its Subsidiaries from any Governmental Authority for any certification, additional information, documents or other materials in respect of such notice or such transactions, (iii) ensure that any information furnished by such party in respect of this Section 8.01(e) is true, complete and correct in all material respects, and (iv) cooperate with each other in connection with any such filing (including, to the occurrence extent permitted by Applicable Law, providing copies, or portions thereof, of all such documents to the non-filing parties to this Agreement prior to filing and considering all reasonable additions, deletions or changes suggested in connection therewith) and, in connection with resolving any investigation or other inquiry of any Governmental Authority under the ITAR, with respect to any such filing or any such transaction. Each of the ClosingCompany and Parent shall use its reasonable best efforts to furnish to the other all information required to be provided by it or any of its Subsidiaries for any such filing or proceeding under the ITAR. To the extent permitted by Applicable Law, each of the Company and Parent shall promptly inform the other of any oral communication with, and provide copies of written communications with, any Governmental Authority regarding any such filings or proceedings, provided, however, that neither Parent nor Merger Subsidiary shall be required by the terms of this Section 8.01(e) to disclose to the Company nonpublic information about Parent or its Affiliates that Parent considers to be confidential or proprietary unless such information is required to be included in the ITAR 60-Day Notice. Neither the Company nor Parent shall independently participate in any formal meeting with any Governmental Authority in respect of any such filings, investigation or other inquiry without giving the other party sufficient prior notice of the meeting and, to the extent permitted by such Governmental Authority, the opportunity for the other party to attend or participate in such meeting. Subject to Applicable Law, the Company and Parent 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 the Company or Parent relating to proceedings under the ITAR. Without limiting the foregoing, each of Parent and the Company shall use its reasonable best efforts to take such actions and agree to such requirements or conditions to mitigate any ITAR concerns as may be requested or required by DDTC in connection with, or as a condition of, the satisfaction of the 60-Day Notice Condition; provided, however, that, notwithstanding any provision of this Agreement to the contrary, neither Parent nor the Company shall be required to agree to any term or take any action in connection with the satisfaction of the 60-Day Notice Condition that (x) is not conditioned upon consummation of the Merger, (y) it is excused from taking pursuant to the proviso to the first sentence to Section 8.01(a), or (z) would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect (provided that, for purposes of this Section 8.01(e), clause (E) in the definition of “Company Material Adverse Effect” shall be inapplicable).
(f) The Company shall consult, and shall cause its Subsidiaries to consult, with Parent regarding the notifications, filings and submissions (if any) that should be made with the U.S. Department of Commerce regarding potential violations of the U.S. Department of Commerce’s regulations with respect to the Subject Product businesses of the Company and its Subsidiaries. The Company shall inform, and shall cause it Subsidiaries to inform, Parent promptly if it or any of its Subsidiaries determines that the Company or any of its Subsidiaries exported any Subject Product, or other export-controlled item without a Permit from the appropriate export control authority, or that it violated any other Trade Control Law. To the extent not prohibited by Applicable Law and the applicable Governmental Authority, the Company agrees to, and to cause its Subsidiaries to, (a) give Parent and its counsel reasonable advance notice of all meetings or telephone conferences with any Governmental Authority relating to any voluntary disclosure process, (b) give Parent and such counsel an opportunity to participate in each of such meetings and conferences, (c) provide Parent and such counsel with a reasonable advance opportunity to review and comment upon any comprehensive disclosure report and all other written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Authority regarding such voluntary disclosure process, and (d) promptly provide Parent and its counsel with copies of all written communications to or from any Governmental Authority relating to such voluntary disclosure process.
(g) Notwithstanding anything in this Section 8.01 to the contrary, neither Parent nor the Company will be required to share any information with the other party to the extent it determines, after consultation with outside counsel, that such disclosure or access would reasonably be likely to (i) violate the terms of any confidentiality agreement or other Contract with a Third Party (provided that Parent or the Company, as applicable, shall use its reasonable best efforts to obtain the required consent of such Third Party to such access or disclosure); (ii) result in the loss of any attorney-client privilege (provided that Parent or the Company, as applicable, shall use its reasonable best e
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of this Agreement and except as otherwise expressly provided in this Agreement, Purchaser, Parent (and the Parent Subsidiaries) Seller shall, and the Company (and the Company Subsidiaries) shall cause their respective Affiliates to, 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, all things necessary, proper or advisable under any applicable Law to consummate and make effective in the Transactions, including most expeditious manner possible the Merger, as soon as practicable after Transaction and the date hereof (other transactions contemplated by this Agreement and in any event by the Outside Date)other Transaction Documents, including (i) preparing the preparation and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably practicable and advisable after the date hereof, of all documentation to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as reasonably practicable (and in any event by the Outside Date) all waiting period expirations or terminations, consents, clearances, waivers, licenses, ordersforms, registrations, approvals, permits Filings and authorizations necessary or advisable notices required to be obtained from any third party and/or any Governmental Entity filed to satisfy the conditions precedent to this Agreement (including those set forth in order Section 8.1) and to consummate the Transactions, including Transaction and the Merger, other transactions contemplated by this Agreement and the other Transaction Documents as soon as practicable and (ii) taking the execution and delivery of any additional 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 shall cause their respective Affiliates to, promptly take all steps as may actions reasonably necessary to obtain (and shall cooperate with each other in obtaining) any Regulatory Approvals (which actions shall include furnishing all information required in connection with such Regulatory Approvals) required to be necessaryobtained or made by Purchaser, Parent, Seller, the other Seller Entities or any of their respective Affiliates in connection with the Transaction or the other transactions contemplated by this Agreement and the other Transaction Documents. Additionally, Purchaser, Parent and Seller shall not, and shall cause their respective Affiliates not to, take any action after the date of this Agreement that would reasonably be expected to impair or materially delay the obtaining of, or result in not obtaining, any Regulatory Approval necessary to be obtained prior to the Closing.
(b) Prior to the Closing, the Purchaser Parties and Seller shall each keep the other apprised of the status of matters relating to the completion of the Transaction and the other transactions contemplated by this Agreement and the other Transaction Documents and consult and cooperate in all respects with each other, and consider in good faith the views of the other Parties with respect to obtaining all required Regulatory Approvals. In that regard, prior to the Closing, subject to the limitations Confidentiality Agreements and Section 5.4, each Party shall promptly consult with the other Parties to provide any necessary information with respect to (and, in the case of correspondence, provide the other Parties (or its counsel) copies of) all Filings made by such Party or any of its Affiliates with any Governmental Entity or any other information supplied by such Party or any of its Affiliates to, or correspondence with, a Governmental Entity in connection with this Agreement, the Transaction and the other transactions contemplated by this Agreement and the other Transaction Documents. Subject to the Confidentiality Agreements and Section 6.25.4, 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 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 Parties to obtain all such waiting period expirations or terminationsreview and discuss in advance, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not consider in limitation good faith the views of the foregoingother Parties in connection with, each Partyany 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, as applicable, agrees to (x) then such Party will make, or cause to be made, promptly and after consultation with the other Parties, an appropriate filing of a Notification and Report Form pursuant to the HSR Act response in compliance with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Lawssuch request. Notwithstanding anything to the contrary set forth in this Agreement, none None of Parent, Merger Sub Purchaser or Seller, or any of their respective Subsidiaries Affiliates or Representatives, shall be required to, and the Company may not, and not permit participate in any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take meeting with any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(b) Each of Parent and the Company shall, Governmental Entity in connection with this Agreement and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations Transaction or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information transactions contemplated by this Agreement and assistance as the other may reasonably request, and consult with each other Transaction Documents (or make oral submissions at meetings or in connection with any filing or submission and in connection with any investigation telephone or other inquiry, including any proceeding initiated by a private party, including by allowing conversations) unless it consults with the other Party to have a reasonable opportunity to review Parties in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Partyand, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJsuch Governmental Entity, the FTC or other applicable Governmental Entity or other Person, give gives the other Party Parties the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant . Subject to the foregoing clauses Confidentiality Agreements and Section 5.4, each Party shall furnish the other Parties with copies of all correspondence and Filings (iand memoranda setting forth the substance thereof) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company between it or any of their respective Subsidiariesits Affiliates or Representatives, (B) as necessary on the one hand, and any Governmental Entity, on the other hand, with respect to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent this Agreement and the Company Transaction or the other transactions contemplated by this Agreement and the other Transaction Documents, and furnish the other Parties with such necessary information and reasonable assistance as the other Parties may reasonably request in connection with its preparation of Filings to any such Governmental Entity. Parent, Purchaser and Seller may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) Agreement as “Outside Counsel Only Materialoutside counsel only” which such material (including documents filed pursuant to Item 4(c) and Item 4(d) of the HSR Notification and Report Form). Such materials and the information contained therein shall be given only to the outside antitrust legal 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, Purchaser or Seller, as the case may be). Materials provided pursuant to this Agreement may be redacted (i) to remove references concerning the valuation of or future plans for the Business or the Sale Process or any Party’s negotiating objectives, strategies or purchase price expectations, (ii) as necessary to comply with contractual obligations or applicable Law and (iii) as necessary to address reasonable privilege concerns.
(c) Without limiting the foregoing, Parent, Purchaser and Seller shall, and shall cause their respective Affiliates to, file, as promptly as practicable, but in any event no later than ten (10) days after the date of this Agreement, notifications under the HSR Act (the filing fees of any such Filings to be borne by the Purchaser Parties, except that Seller shall be responsible for any filing fees in connection with any Filings under the HSR Act relating to its acquisition of Parent Shares).
(d) In furtherance of the foregoing, and with the exceptions noted below, Purchaser shall, and shall cause its Affiliates to, promptly take all action as may be reasonably necessary to avoid or eliminate each and every impediment under any applicable Law with respect to the transactions contemplated hereby and by the other Transaction Documents and to resolve such objections, if any, as any Governmental Entity or any other Person may assert under any applicable Law with respect to the transactions contemplated hereby, so as to enable the Closing to occur as soon as reasonably possible (and in any event so as to enable the Closing to occur prior to the Outside Date). Notwithstanding the foregoing, the Purchaser Parties shall not be required to (i) proffer to and agree to sell, divest, lease, license, transfer, dispose of or otherwise encumber or hold separate, before or after the Closing, any assets, licenses, operations, rights, product lines, businesses or interests therein of the Business or of Parent or its Affiliates (and shall not be required to consent to any sale, divestiture, lease, license, transfer, disposition or other 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 assets, licenses, product lines, businesses or interests therein or Parent’s or Purchaser’s ability to vote, transfer, receive dividends, or otherwise exercise full ownership rights with respect to ownership interests in the Business or of Parent, Purchaser or their Affiliates; provided, however, that, to the extent required to satisfy the condition set forth in Section 8.1(a), Purchaser and Parent shall take any of the foregoing actions set forth above in this Section 5.1(d) 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 one hand date of this Agreement. Notwithstanding anything to the contrary set forth in this Agreement, the Purchaser Parties shall not be required to defend, contest, resist, or participate in any Proceeding or investigation, whether judicial or administrative, or to take any action to have vacated, lifted, reversed or overturned any Judgment, whether temporary, preliminary or permanent, in connection with the Company on transactions contemplated by this Agreement and the other) or its legal counselother Transaction Documents. Notwithstanding anything in this Agreement to the contrary, Parent Seller and its Affiliates shall not be entitled obligated to lead the strategy and course of take or agree or commit to take any action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing that is not conditioned on the Closing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) that relates to any decision assets or businesses of Seller; and in no event shall Seller or any of its Affiliates be required to enter intobe the licensing, selling, divesting, leasing, transferring, disposing or encumbering party under any such agreements, and, in any case, Seller and its Affiliates shall have no direct or indirect obligation or Liability in respect of any such agreements, transactions or relationships, including any indemnification obligations, for which Seller and its Affiliates are not fully indemnified by the contents ofPurchaser Parties.
(e) Each of the Purchaser Parties agrees to provide such security and assurances as to financial capability, any agreement (including a timing agreement) with resources and creditworthiness as may be reasonably requested by any Governmental Entity or other third party whose Approval is sought in connection with the Transaction and the other transactions contemplated by this Agreement and the other Transaction Documents. Whether or not the Transaction is consummated, the Purchaser Parties shall be responsible for all fees and payments (including filing fees and legal and professional fees) to delay any third party or any Governmental Entity that are incurred in order to obtain any Approvals pursuant to this Agreement, other than the fees of and payments to Seller’s legal and professional advisors and any filing fees that are the responsibility of Seller pursuant to Section 5.1(c) or any of the other Transaction Documents. Notwithstanding anything in this Agreement to the contrary, except for payment of filing fees required pursuant to Section 5.1(c) and as set forth and subject to the limitations in Section 5.1(d), Purchaser shall not under any circumstance be required to consummate 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 Transactionscontrary in the underlying Contract, providedincluding any requirements for the securing or posting of any bonds, that (x) at the time letters of entry into any timing credit or similar agreementinstruments, or the term thereof would not reasonably be expected furnishing of any guarantees) to extend beyond such time as would allow the parties sufficient time any Person to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Companyobtain any Approval.
(cf) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything in this Agreement to the contrary hereincontrary, none of ParentSeller, the Company other Seller Entities or any of their respective Subsidiaries Affiliates shall under any circumstance be required to pay or commit to pay any consent 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 similar feePurchased Asset as a result thereof. The Purchaser Parties acknowledge that no representation, payment warranty or considerationcovenant of Seller contained herein shall be breached or deemed breached, make any and no condition to the Purchaser Parties’ obligations to consummate the transactions contemplated by this Agreement or the other concession or provide any additional security Transaction Documents (including other than as a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case result of the Company, if requested by Parent and either failure to satisfy a condition expressly set forth in Section 8.1(a) or Section 8.1(b)) shall be deemed not satisfied solely as a result of (i) reimbursed or indemnified for by Parent or the failure to obtain any Approval, (ii) subject any such termination, default, acceleration or loss of benefit, or (iii) any Proceeding commenced or threatened by or on behalf of any Person arising out of or relating to the occurrence failure to obtain any such Approval or any of the Closing)foregoing. For the avoidance of doubt, Seller’s and its Affiliates’ obligations under this Section 5.1 shall be subject in all respects to the applicable provisions of Section 2.10.
Appears in 1 contract
Efforts. (a) Subject Each of the Company, Parent, Merger Sub I, and Merger Sub II shall use its respective reasonable best efforts to the terms and conditions of this Agreement, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall each of them will cause its respective Subsidiaries to use reasonable best efforts to 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, all things necessary, proper or advisable under applicable Law or otherwise to consummate and make effective the TransactionsMergers, including the MergerParent Common Share Issuance and the other transactions contemplated by this Agreement as promptly as practicable, (ii) take all such actions (if any) as soon 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 date hereof 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 I, Merger Sub II or the Company, or any of their respective Subsidiaries, to effect the Closing as promptly as practicable, and in any event by not later than 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 Mergers, and (B) from any Third Party (other than a Governmental Entity) any consents or notices that are required to be obtained or made by Parent, Merger Sub I, Merger Sub II 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), including only to the extent that Parent, Merger Sub I, Merger Sub II and the Company reasonably determine, after consultation and cooperation with one another, that such consent or notice should be obtained or made (iit being understood that the failure to receive or make any such consents or notices will not be a condition precedent to Parent’s, ▇▇▇▇▇▇ Sub I’s, Merger Sub II’s or the Company’s obligations to consummate the transactions contemplated hereby), (iv) preparing cause the satisfaction of all conditions within its control set forth in Article VI, and filing or otherwise providing, in consultation with the other Party (v) prepare and file as promptly as reasonably practicable and advisable after the date hereof, all documentation to effect all necessary applications, notices, petitions, filings filings, ruling requests, and other documents and necessary to obtain as promptly as reasonably practicable (and in any event by the Outside Date) all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits approvals and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity other deliverables set forth in order to consummate the Transactions, including the Mergerclauses (A) and (B) above, and (ii) taking take all reasonable steps as may be necessary, subject to the limitations in this Section 6.2, necessary to obtain all such consents, approvals and other deliverables; provided, however, that, in the case of clause (B), in no event will Parent, Merger Sub I, Merger Sub II or the Company, or any of their respective Subsidiaries be required to pay prior to the First Effective Time any fee, penalty or other consideration to any such Third Party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any Contract.
(b) Notwithstanding anything to the contrary in this Agreement, (i) Parent shall, after considering in good faith the views and comments of the Company (and its outside legal counsel) and acting in good faith, exercise principal responsibility to direct and control all aspects of the Parties’ efforts to gain regulatory clearance before any Governmental Entity of the transactions contemplated hereby pursuant to any Competition Law; provided, however, that Parent shall not enter into any agreement with a Governmental Entity to extend any waiting period expirations under the Competition Laws or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and to delay or not in limitation to consummate the transactions contemplated by this Agreement without the prior written consent of the foregoingCompany, except that Parent may once withdraw and refile its “Notification and Report Form” under the HSR Act as provided by 16 C.F.R. 803.12, (ii) nothing in this Agreement shall require the Company, Parent, Merger Sub I or Merger Sub II to defend through litigation any claim asserted in any court or other governmental body with respect to the Mergers by the United States Federal Trade Commission, the United States Department of Justice or any other applicable Governmental Entity, (iii) none of the Company, Parent, Merger Sub I or Merger Sub II and none of their respective affiliates shall be required to offer, negotiate, commit to, effect, enter into or take any action, agreement, condition, commitment or remedy of any kind, including any remedy that would require the Company, Parent, Merger Sub I or Merger Sub II or any of their respective affiliates to sell, divest, lease, license, transfer, dispose of, or otherwise encumber, impair, limit or restrict any of their or their respective affiliates’ ownership, control, management or operation of assets or businesses (including for the avoidance of doubt, any equity or other interests) of any of Parent, Merger Sub I, Merger Sub II, the Merger I Surviving Corporation, the Merger II Surviving Company, any Parent Subsidiary, the Company or any Company Subsidiary, or any of their respective affiliates, and (iv) the Company shall not, and shall cause the Company Subsidiaries and their respective controlled affiliates not to, without the prior written consent of Parent, offer, negotiate, commit to, effect, enter into or take any action, agreement condition, commitment or remedy as described in Section 5.5(b)(iii).
(c) Without limiting the generality of anything contained in this Section 5.5, each PartyParty shall, as applicable, agrees (i) make with respect to (x) make, or cause to be made, the transactions contemplated hereby an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, practicable and advisable (and in any event within fifteen twenty (1520) Business Days after the execution date of this Agreement (unless a later date is otherwise mutually agreed between in writing by the Parties)), and to supply as promptly as reasonably practicable and advisable (ii) give the other Parties prompt notice of the making or commencement of any additional information and documentary materials that may be requested pursuant request, inquiry, investigation, action or Proceeding by or before any Governmental Entity with respect to the HSR Act and to take all other actions necessary to cause the expiration Mergers or termination any of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event other transactions contemplated by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none (iii) keep the other Parties notified as to the status of Parentany such request, Merger Sub inquiry, investigation, action or other Proceeding, (iv) promptly notify the other Parties of any oral or written communication to or from any Governmental Entity regarding the Mergers or any of their respective Subsidiaries shall be required tothe other transactions contemplated by this Agreement, and (v) promptly provide to the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose other Parties copies of any assetswritten communications received or provided by such Party, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all its Subsidiaries, from or to any portion of their respective businesses as presently conducted and as currently proposed Governmental Entity with respect to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act Mergers or any other Regulatory Lawtransactions contemplated by this Agreement, and (ivi) cooperate in all respects, including by furnishing to the other respond as promptly as practicable to any inquiries received from any Governmental Entity enforcing applicable Competition Laws for additional information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquirydocumentation material, including any proceeding initiated request for additional information or documentary material issued by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing).15 U.S.C.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of this Agreement, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) Parent shall 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 Transactions, including the Merger, Transactions as soon promptly as practicable after the date hereof (and in any event by prior to the Outside End Date), including (i) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably practicable and advisable after the date hereof, all documentation to effect obtaining of all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as reasonably practicable (and in any event by the Outside Date) all waiting period expirations or terminations, consents, clearancesactions, waivers, licensesconsents and approvals from Governmental Authorities, orders, registrations, approvals, permits and authorizations necessary the expiry or advisable to be obtained from early termination of any third party and/or any Governmental Entity in order to consummate the Transactions, including the Mergerapplicable waiting periods, and the making of all necessary registrations and filings (iiincluding filings with Governmental Authorities, if any) and the taking of all steps as may be necessary, subject to the limitations in this Section 6.2, reasonably necessary to obtain all such waiting period expirations an approval or terminationswaiver from, consentsor to avoid an action or proceeding by, clearancesany Governmental Authorities, waivers(ii) the delivery of required notices to, licensesand the obtaining of required consents or waivers from, registrations, permits, authorizations, orders Third Parties and approvals. (iii) the execution and delivery of any additional instruments necessary to consummate the Merger and to fully carry out the purposes of this Agreement.
(b) In furtherance and not in limitation of the foregoingundertakings pursuant to this Section 6.10, each Partyof Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act 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 applicablepromptly as practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of any notification and report forms and related material required under the HSR Act except by mutual consent confirmed in writing), agrees to (xii) make, provide or cause to be madeprovided as promptly as 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) 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, an appropriate including to cause to be lifted or vacated any restraint, injunction or other legal impediment to any of the Transactions. Parent shall pay all filing of a Notification and Report Form fees payable pursuant to the HSR Act or other applicable Antitrust Laws (if any).
(c) Subject to Applicable Law, the Company and Parent and their respective counsel shall (i) 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, (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 and (iii) promptly 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 as promptly as reasonably practicable, Transactions. The Company and in Parent shall (with respect to any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Partiesin-person discussion or meeting), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant shall to the HSR Act 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 take all participate in any material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other actions necessary inquiry in connection with the Transactions. Neither Parent nor the Company shall commit to cause the expiration or termination of the agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the other. The Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) 6.10 as “Outside Antitrust Counsel Only Material.” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary hereinin this Section 6.10, none materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in and the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing)Company Subsidiaries.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of this Agreement, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use reasonable best efforts to take, or cause to be taken, all actions necessary to consummate the Merger and make effective the other transactions contemplated by this Agreement as promptly as practicable During the Pre-Closing Period: (i) the Company shall use reasonable best efforts to dotake, or cause to be donetaken, all things necessaryactions necessary to satisfy the conditions set forth in Section 7, proper or advisable under applicable Law to consummate the Transactions, including the Merger, as soon as practicable after the date hereof (Merger and in any event by the Outside Date), including (i) preparing and filing or otherwise providing, in consultation with make effective the other Party and transactions contemplated by this Agreement as promptly as reasonably 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 reasonably practicable (and in any event by the Outside Date) 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 Transactions, including the Merger, practicable; and (ii) taking Parent and Merger Sub shall use reasonable best efforts to take, or cause to be taken, all steps actions necessary to satisfy the conditions set forth in Section 8, consummate the Merger and make effective the other transactions contemplated by this Agreement as may be necessary, subject to promptly as practicable. Without limiting the limitations in this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation generality of the foregoing, each Party, as applicable, agrees party to this Agreement: (xi) makeshall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement; and (ii) shall use commercially reasonable efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or cause to be made, an appropriate filing otherwise) by such party in connection with the Merger or any of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution other transactions contemplated by this Agreement. For purposes of this Section 5.1, “reasonable best efforts” of Parent (or its Affiliates, if applicable) shall not require (nor shall anything in this Section 5.1 or otherwise in this Agreement require) Parent (unless a later date is mutually agreed between the Parties)or its Affiliates, and if applicable) to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicableoffer, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreementnegotiate, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect toor effect, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divestby consent decree, hold separate order or otherwise dispose otherwise, (1) the sale, divestiture, license or other disposition of any assets, business or portion of business and all of the Companycapital stock or other equity or voting interest, the Surviving Companyassets (whether tangible or intangible), Parentrights, Merger Sub products or any Subsidiary businesses of any of the foregoing Parent (or (B) impose any restrictionits Affiliates, requirement or limitation if applicable), on the operation of the business or portion of the business of the Companyone hand, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and its Affiliates, if applicable) on the other hand; and (2) any other restrictions on the activities of Parent (and its Affiliates, if applicable), on the one hand, and the Company Subsidiaries(and its Affiliates, if applicable), on the other hand; or (z) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection todefend, or Actions challengingappeal any legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Transactions, 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, including the MergerMergers.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing).
Appears in 1 contract
Sources: Merger Agreement (Life360, Inc.)
Efforts. (a) Subject to the terms and conditions set forth herein and to applicable Law, each of this Agreementthe Company, Parent (and the Parent Subsidiaries) Merger Sub shall cooperate and the Company (and the Company Subsidiaries) shall use their respective reasonable best efforts to take, or cause to be taken, all actions necessary action, and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate and make effective, as expeditiously as practicable, the TransactionsMerger and the other transactions contemplated hereby, including the Merger, as soon as practicable after the date hereof (and in any event by the Outside Date), including (i) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably 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 reasonably practicable (and in any event by the Outside Date) 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 Transactions, including the Merger, and (ii) taking all steps as may be necessary, subject to the limitations in this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation satisfaction of the foregoing, each Party, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary respective conditions set forth in this AgreementARTICLE VI. Neither Parent nor the Company shall take, none of Parent, Merger Sub or nor permit any of their respective Subsidiaries shall be required toto take, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order that is reasonably likely to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on prevent the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(b) Each of Subject to Section 5.6, the Company, Parent and the Company shallMerger Sub will use reasonable best efforts to: (i) prepare, as soon as reasonably practicable, all filings and other presentations in connection with and without limiting seeking any regulatory approval, exemption or other authorization from any Governmental Entity necessary to consummate the efforts referenced in Section 6.2(atransactions contemplated hereby; (ii) to obtain obtain, as soon as reasonably practicable, all waiting period expirations necessary or terminations, advisable consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act approvals or any waivers from such Governmental Entities or other Regulatory Lawthird parties, (iiii) cooperate in all respectsprosecute such filings and other presentations with diligence; and (iv) oppose any objections to, including appeals from or petitions to reconsider or reopen any such approval by furnishing Persons not party to this Agreement. In furtherance thereof, the Company, Parent and Merger Sub will (A) use their respective reasonable best efforts to facilitate obtaining any final order or orders approving such transactions, consistent with this Agreement and to remove any impediment to the consummation of the transactions contemplated hereby and (B) timely furnish all information in connection with the approvals of or filings with any Governmental Entity. The Company, Parent and Merger Sub will each advise the other party as promptly as reasonably practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any material communication received by such Party from, party or given by such Party to, any of its Affiliates from any Governmental Entity regarding the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) Merger or any other Governmental Entity, by promptly providing copies to the other Party of any such written communicationstransactions contemplated hereby, and of any communication received understandings, undertakings or given agreements (oral or written) such party proposes to make or enter into with any Governmental Entity in connection with any proceeding by a private partythe Merger or other transactions contemplated hereby. The Company, in Parent and Merger Sub will each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each the other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or material meetings with any other Governmental Entity or, in connection with any proceeding by a private party, with any the Merger or other Person, transactions contemplated hereby and to the extent allowed by such Governmental Entity, not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give participate independently in any such meeting without first giving the other Party the reasonable party an opportunity to attend and participate thereat; providedin such meeting. The Company, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as Merger Sub shall provide each deems advisable other with advance opportunity to review and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such material comment upon 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 on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Companyother in connection with all written communications with a 56 Governmental Entity, and promptly provide each other with copies of all written communications to or from any Governmental Entity in connection with the Merger or other transactions contemplated hereby. Written communications may be redacted and provided solely to the other party’s outside counsel to comply with contracts, to preserve legal privileges, or to comply with the Antitrust Laws.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the The Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, use its reasonable best efforts to obtain obtain, as promptly as possible after the date hereof, (i) for each Real Property Lease that requires the landlord thereunder to deliver an estoppel certificate in a specified form, the landlord estoppel certificate in that form; (ii) for each Real Property Lease not described in clause (i) immediately above, the Landlord Estoppel Certificate; (iii) for each Owned Real Property Lease that requires the tenant thereunder to deliver an estoppel certificate in a specified form, the tenant estoppel certificate in that form; and (iv) for each Owned Real Property Lease not described in clause (iii) immediately above, the Tenant Estoppel Certificate; in each case of clauses (i)–(iv) above executed and delivered by the appropriate counterparties thereto. If requested by any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parentsuch counterparty, the Company shall be obligated to pay to such counterparty, as applicable, (i) any amounts payable for provision of estoppel certificates pursuant to the applicable Real Property Lease or Owned Real Property Lease or (ii) up to the amount specified in Section 5.4(c) of the Company Disclosure Schedule any reasonable consideration to obtain such Landlord Estoppel Certificate or Tenant Estoppel Certificate.
(d) Between the date of this Agreement and the Closing Date, the Company shall, and shall cause the Company Subsidiaries to, as promptly as reasonably practicable following a request by Parent, reasonably cooperate with and provide reasonable support to Parent and its Affiliates and their respective Representatives (including by providing financial information in its possession, reasonable access to its Representatives and otherwise providing reasonable assistance to Parent) in Parent’s preparation of any financial statements, as well as related footnote information, of the AGF Entities that may be required for the preparation of any unaudited interim financial statements, or audited year-end financial statements of the Company and pro forma financial statements of Parent or any of their respective its Affiliates, solely for purposes of Parent’s financial reporting requirements under Regulation S‑X of the Securities Act, Exchange Act, Investment Company Act of 1940, as amended, Investment Advisers Act of 1940, as amended, and Energy Policy and Conservation Act of 1975, as amended (“Regulation S‑X”). In addition, between the date of this Agreement and the Closing Date, the Company shall, and shall cause the Company Subsidiaries shall be required to pay any consent or other similar feeto, payment or considerationas promptly as reasonably practicable following a request by Parent, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, reasonably participate in the case preparation of unaudited interim financial statements of the Company, if requested by and the related efforts of determining the Company’s interim period reporting periods, and allow Parent and either (i) reimbursed to enter into an agreement with the Company’s independent auditors for the purpose of providing financial statement preparation assistance for such unaudited interim financial statements or indemnified for by Parent or (ii) subject any required changes that may need to be made to the occurrence audited year-end financial statements of the ClosingCompany, solely for purposes of Parent’s financial reporting requirements as required under Regulation S-X. Parent will reimburse the Company for its reasonable out-of-pocket expenses incurred in connection with fulfilling its obligations under this Section 5.4(d).
Appears in 1 contract
Sources: Merger Agreement (Supervalu Inc)
Efforts. (a) 6.9.1 Subject to the terms and conditions of this Agreement, Parent each of the Parties shall cooperate with each other and each use (and the Parent Subsidiariesshall cause their respective Subsidiaries to use) and the Company (and the Company Subsidiaries) 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 Party in doing, all things necessary, proper or advisable reasonably necessary under applicable Applicable Law to consummate the Transactions, including the Merger, Merger as soon promptly as practicable after the date hereof (and in any event by the Outside Date)practicable, including (i) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably practicable and advisable after the date hereof, all documentation to effect obtaining of all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as reasonably practicable (and in any event by the Outside Date) all waiting period expirations or terminations, consents, clearancesactions, waivers, licensesconsents and approvals from Governmental Entities, orders, registrations, approvals, permits and authorizations necessary the expiry or advisable to be obtained from early termination of any third party and/or any Governmental Entity in order to consummate the Transactions, including the Mergerapplicable waiting periods, and the making of all necessary registrations and filings (iiincluding filings with Governmental Entities, if any) and the taking all of such reasonable steps as may be necessaryreasonably necessary to obtain an approval or waiver from, subject or to avoid a Proceeding by, any Governmental Entities, (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 Merger and 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 limitations in this Section 6.2Company paying, any material cash consideration to obtain all such waiting period expirations any Third Party from whom consent or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. approval is required (other than filing fees payable to Governmental Entities).
6.9.2 In furtherance and not in limitation of the foregoingundertakings pursuant to this Section 6.9, each Party, as applicable, agrees to of Parent and the Company shall (xi) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) 30 Business Days after of the execution of this Agreement date hereof prepare and file any notification and report forms and related material required under the HSR Act and any additional filings or notifications and related material that are necessary, proper or advisable to obtain SARB Approval, (unless a later date is mutually agreed between the Partiesii)
(A) submit, and to supply as promptly as reasonably practicable and advisable in any event within 30 Business Days of the date hereof, to CFIUS a draft joint voluntary notice under Exon-▇▇▇▇▇▇ with respect to the Merger, (B) as promptly as practicable thereafter, file with CFIUS a final joint voluntary notice, and (C) supply any additional information and documentary materials information or material that may be requested pursuant in connection with the CFIUS review process within the amount of time allowed by CFIUS, and (iii) cooperate with the other Parties in connection with any such filings or notifications, and in connection with resolving any investigation or other inquiry of any Governmental Entity in relation to such filings or notifications, including the U.S. Department of Justice or the U.S. Federal Trade Commission under the HSR Act.
6.9.3 Subject to Applicable Law relating to the HSR Act exchange of information, the Company and to take all Parent and their respective counsel shall (i) cooperate with each other actions necessary to cause in determining whether any action by or in respect of, or filing with, any Governmental Entity is required, in connection with the expiration or termination consummation of the applicable waiting period Merger and seeking any such actions, consents, approvals or waivers or making any such filings, (ii) furnish to each other all information required for any application or other filing under the rules and regulations of any Applicable Law in connection with the transactions contemplated by this Agreement (including in connection with CFIUS Clearance), (iii) 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 as soon as reasonably practicable or in connection with CFIUS Clearance) with a Governmental Entity in connection with the transactions contemplated hereby, (iv) promptly inform each other of any material communication (or other material correspondence or memoranda) received from, or given to, any Governmental Entity in connection with the transactions contemplated hereby, and (v) promptly 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 Entity or its respective staff, on the other hand, with respect to the transactions contemplated hereby. The Company and Parent shall, to the extent practicable, provide the other Party and its counsel with advance notice of and the opportunity to participate in any event material discussion or meeting with any Governmental Entity in respect of any filing, investigation or other inquiry in connection with the transactions contemplated hereby (including in connection with CFIUS Clearance).
6.9.4 Notwithstanding anything else contained herein, Parent and its Subsidiaries shall take, and cause to be taken, all steps necessary to avoid or eliminate any impediment under Applicable Law that may be asserted by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicablea Governmental Entity with respect to, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything satisfy all conditions to the contrary set forth in this Agreementconsummation of, none of Parentthe Merger; provided, Merger Sub or however, that neither Parent nor any of their respective its Subsidiaries shall be required to, and the Company may shall not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (Ax) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all the expiry or early termination of any applicable waiting period expirations (or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions any extensions thereof) under the HSR Act or any other Regulatory Lawto obtain SARB Approval, offer, propose, agree or commit (i) cooperate in all respectsto sell, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably requestdivest, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiryhold separate, including any proceeding initiated by license, cause a private party, including by allowing the other Third Party to have a reasonable opportunity to review in advance and comment on drafts acquire or otherwise dispose of filings and submissions and reasonably considering in good faith comments of the other Party, (iiA) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each Affiliates of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing).or
Appears in 1 contract
Sources: Agreement and Plan of Merger (Stillwater Mining Co /De/)
Efforts. (a) Subject From and after the date hereof, and subject to the terms and conditions of this Agreement, Parent (the Parties shall, and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall cause their respective Affiliates to, use their respective reasonable best efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Law to consummate and make effective as promptly as reasonably practicable the Transactions, including transactions contemplated by this Agreement and the Merger, as soon as practicable after the date hereof (and in any event by the Outside Date)other Transaction Documents, including (i) preparing the preparation and filing of all forms, registrations, Filings and notices required to be filed to satisfy the conditions precedent to this Agreement (including those set forth in Section 11.1) and to consummate the transactions contemplated by this Agreement as soon as practicable, (ii) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement, and (iii) obtaining necessary waivers, consents and approvals from applicable third parties required under Section 4.4 of the Washington Disclosure Schedules. Without limiting the foregoing, Georgia, Merger Subs, Sellers and Washington shall, and shall cause their respective Affiliates to, with respect to Regulatory Approvals required for the closing of the Washington Pre-Closing Reorganization and the Washington Florida Interest Sale and the Mergers (including the issuance of the Washington Stock Consideration) (the “Washington Sale Regulatory Approvals”), use their respective reasonable best efforts to obtain (and shall cooperate with each other and Florida in obtaining) any such Regulatory Approvals (which actions shall include promptly furnishing the other Party and Florida (or otherwise providingthe applicable Governmental Entity) with all information reasonably required in connection therewith) required to be obtained or made by such Parties or any of their Affiliates in connection with the transactions contemplated by this Agreement, including filing as soon as practicable and, in consultation any event, no later than required by applicable Law, with the relevant Governmental Entity any notices required to be filed by such Parties or their Affiliates in connection with, or as necessary to consummate, the transactions contemplated by this Agreement. Each of Georgia and Merger Subs, on the one hand, and Sellers, Blockers and Washington (and its Subsidiaries), on the other hand, shall cooperate in good faith with the other Party and as promptly as reasonably practicable Florida (or their respective legal counsels) to satisfy all required obligations in relation to Washington Sale Regulatory Approvals. Florida is hereby expressly made a third-party beneficiary of this Section 8.1(a).
(b) The Parties shall not, and advisable shall cause their respective Affiliates not to, take any action after the date hereofof this Agreement that would reasonably be expected to impair or materially delay the obtaining of, all documentation to effect all or result in not obtaining, any Regulatory Approvals, including any Purchased Entity Sale Regulatory Approvals or Washington Sale Regulatory Approval necessary applications, notices, petitions, filings and other documents and to obtain as promptly as reasonably practicable (and in any event by the Outside Date) 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 Transactions, including the Merger, and (ii) taking all steps as may be necessary, subject prior to the limitations in this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvalsClosing. In furtherance and not in limitation of Without limiting the foregoing, each Partythe Parties shall not, as applicableand shall cause their respective Affiliates not to, agrees acquire or enter into a definitive agreement to (x) makeacquire, by merger, consolidation, stock or asset purchase or otherwise, any business or corporation, partnership or other business organization or division thereof, or cause merge or consolidate with any other Person, if such transaction would reasonably be expected to materially impair or materially delay the obtaining of, or result in not obtaining, any Regulatory Approval required to be made, an appropriate filing of a Notification and Report Form pursuant obtained to satisfy the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary conditions set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries Section 11.1(a). The Parties shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of ParentGeorgia, become subject toWashington and Chicago, consent to, extend or offer or agree to, take or commit to take extend any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory LawLaw or other Law under which a Regulatory Approval is required, or enter into any agreement with any Governmental Entity related to this Agreement, the other Transaction Documents or the transactions contemplated by this Agreement.
(c) Prior to the Closing, the Parties shall each keep the other reasonably apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement and work cooperatively in connection with obtaining all Regulatory Approvals. In that regard, prior to the Closing, subject to the Confidentiality Agreement and Section 7.2, Georgia and Merger Subs, on the one hand, and Sellers, Blockers and Washington, on the other hand, shall (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity provide any necessary information with respect to review (and, in advance and comment on drafts the case of filings and submissions and reasonably considering in good faith comments of correspondence, provide the other PartyParty (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 material correspondence with, a Governmental Entity, in each case, in connection with such Regulatory Approval; (ii) 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 material 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”) or any other of its Affiliates or Representatives from any Governmental Entity, by promptly providing copies to the other Party of any Entity regarding such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and Regulatory Approval; (iii) permit the other Party reasonable and sufficient time to review and discuss in advance any communication that it gives toadvance, and consult with each consider in good faith the views of the other Party in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) connection with, the DOJ, the FTC or any other proposed communication with any such Governmental Entity or, in connection with such Regulatory Approval; (iv) if such Party or any proceeding Affiliate or Representative of such Party receives a request for additional information or documentary material from any Governmental Entity with respect to such Regulatory Approval, then such Party shall use its reasonable best efforts to comply with such request as promptly as reasonably practicable; (v) unless otherwise required by a private partythe applicable Governmental Entity, not participate in any material meeting with any Governmental Entity in connection with such Regulatory Approval (or make oral submissions at meetings or in telephone, videoconference, or other Personconversations) unless it consults with the other Party in advance and, and to the extent not prohibited by the DOJ, the FTC or other applicable such Governmental Entity or other Personany applicable Law, give gives the other Party the reasonable opportunity to attend and participate thereat; (vi) furnish the other Party with copies of all correspondence and Filings (or, in the case of oral communications, advise the other Party of the substance thereof) between it or any of its Affiliates or Representatives, on the one hand, and any Governmental Entity, on the other hand, with respect to such Regulatory Approval; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company a Party may, as each it deems advisable and necessary, reasonably designate any competitively portions of correspondence or Filings that contain sensitive material provided personal data or commercially sensitive information relating to the other under this Section 6.2(b) such Party or its controllers or control persons as “Outside Counsel Only Materialoutside counsel only,” which such material and the information contained therein portions shall be given only to the recipient’s outside antitrust 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 (Parent on the one hand or the Company on the other) or its legal counsel; and (vii) promptly furnish the other Party with such necessary information and reasonable assistance as the other Party may reasonably request in connection with its preparation of Filings to any such Governmental Entity for any Regulatory Approval; provided that a Party may, as it deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Agreement as “outside counsel only,” which such materials and the information contained therein shall be given only to the recipient’s outside legal counsel 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 or its legal counsel; provided, however, that materials provided to another Party pursuant to this Section 8.1 may be redacted by the providing Party (i) to remove references concerning the valuation of or future plans for the Washington Business or the Washington Sale Process, (ii) as necessary to comply with contractual obligations or applicable Law and (iii) as necessary to address reasonable privilege or confidentiality concerns. The cooperation covenants set forth in this Section 8.1(c) shall apply mutatis mutandis to Florida with respect to the Regulatory Approvals (as defined in the Florida Transaction Agreement) required to be obtained under the Florida Transaction Agreement, and shall require the Parties and Florida to cooperate with each other in respect of the Regulatory Approvals required hereunder and under the Florida Transaction Agreement in the manner set forth in this Section 8.1(c). Florida is hereby expressly made a third-party beneficiary of Section 8.1(c). For the sake of clarity, nothing in this Section 8.1 shall require Georgia or any of its Affiliates to share any Filings, documents, correspondence or other information with Sellers, Blockers, Washington, their Affiliates or Representatives and/or secure the participation of Sellers, Blockers, Washington, their Affiliates or Representatives in any meeting or other interaction with any Governmental Entity with respect to any Purchased Entity Sale Regulatory Approvals that are not also Washington Sale Regulatory Approvals; provided that Georgia shall answer reasonable questions of Sellers, Blockers or Washington related to any Purchased Entity Sale Regulatory Approvals that are not also Washington Sale Regulatory Approvals.
(d) Without limiting the foregoing, the Parties shall, and shall cause their respective Affiliates to, file as promptly as practicable notifications under the HSR Act and any other Filing required to obtain any Washington Sale Regulatory Approvals.
(e) In furtherance of the foregoing, and notwithstanding anything in this Agreement to the contrary, the Parties shall, and shall cause their controlled Affiliates (excluding portfolio companies of the Sellers and their Affiliates) to, use reasonable best efforts to take all such action as may be necessary to avoid or eliminate each and every impediment under any applicable Law with respect to the Washington Florida Interest Sale and the Mergers (including the issuance of the Washington Stock Consideration) and to resolve such objections, if any, as any Governmental Entity or any other Person may assert under any applicable Law with respect to the Washington Florida Interest Sale and the Mergers (including the issuance of the Washington Stock Consideration), so as to enable the Closing to occur as soon as reasonably practicable (and in any event so as to enable the Closing to occur prior to the Outside Date), including using reasonable best efforts (including proffering and agreeing to the remedies set forth in this Section 8.1(e)) to resolve such objections of the applicable Governmental Entities with respect to the Regulatory Approvals set forth in Section 11.1(a)(i) and Section 11.1(a)(ii), subject to the remainder of this Section 8.1(e). With respect to the Regulatory Approvals set forth in Section 11.1(a)(i) with respect to the Washington Florida Interest Sale and the Mergers (including the issuance of the Washington Stock Consideration), Georgia shall direct the timing of proffering and agreeing to the remedies set forth in this Section 8.1(e), subject to the terms of the remainder of this Section 8.1(e), and further subject to consulting in good faith with Washington and Chicago prior to making any such timing decisions. With respect to the Regulatory Approvals set forth in Section 11.1(a)(ii) with respect to the Washington Florida Interest Sale and the Mergers (including the issuance of the Washington Stock Consideration), Georgia, Florida and Washington shall, and shall cause their Affiliates to, use reasonable best efforts (including proffering and agreeing to the remedies set forth in this Section 8.1(e)) to resolve such objections of the applicable Governmental Entities at both (i) their initial stage of review in order to mitigate the risk of referral of the Washington Florida Interest Sale or the Mergers (including the issuance of the Washington Stock Consideration) by such applicable Governmental Entities to an in-depth investigation or review, and (ii) in the event of such referral, at the earliest available opportunity during the in-depth investigation or review, including at their outset, in order to secure the approval of the Washington Florida Interest Sale and the Mergers (including the issuance of the Washington Stock Consideration) by such applicable Governmental Entities, prior to the Outside Date, subject to the terms of the remainder of this Section 8.1(e). In furtherance of the foregoing, Georgia shall (i) defend through litigation any claim asserted in court or before any other Governmental Entity by any 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 prevent the Closing by the Outside Date, including by pursuing all available avenues of administrative and judicial appeal, and (ii) proffer to and agree to sell, divest, lease, license, transfer, dispose of or otherwise encumber or hold separate, before or after the Closing, any assets, licenses, operations, rights, product or service lines, businesses or interests therein of the Washington Business and/or of Georgia or its Subsidiaries and agree to make any material changes (including through a licensing arrangement) or implement any restriction or condition on, or other impairment of Georgia’s and/or Washington’s or its Subsidiaries’ ability to own, retain, manage or operate, any such assets, licenses, product or service lines, businesses or interests therein and/or Georgia’s ability to vote, transfer, receive dividends, or otherwise exercise full ownership rights with respect to ownership interests in the Washington Business and/or of Georgia or its Subsidiaries; provided, however, that, notwithstanding any other provisions of this Agreement, neither Georgia nor any of its Subsidiaries shall be required to take or agree to take any such action that would reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business, financial condition or operations of Georgia and its Subsidiaries (including for this purpose Washington and its Subsidiaries) from and after the Closing (but, for purposes of determining whether any action would reasonably be expected to have, individually or in the aggregate, a material adverse effect, calculated as if Georgia and its Subsidiaries from and after the Closing were collectively the same size as the merchant solutions business segment of Georgia and its Subsidiaries as of the date of this Agreement). Notwithstanding anything in this Agreement to the contrary, Parent none of Georgia, Chicago, Washington or their respective Affiliates shall be entitled obligated to lead take or agree or commit to take any action in connection with obtaining the strategy and course of action for seeking and obtaining all waiting period expirations or terminationsWashington Sale Regulatory Approvals that is not conditioned on the Closing. In addition, consentsas applicable, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at Washington shall defend through litigation on the time merits any claim asserted in court or before any other Governmental Entity by any Person in order to avoid entry of, or to have vacated or terminated, any Judgment (whether temporary, preliminary or permanent) that would prevent the closing of entry into any timing or similar agreementthe Purchased Entity Sale, the term thereof would not reasonably be expected to extend beyond such time as would allow Washington Florida Interest Sale and the parties sufficient time to consummate Mergers (including the Closing prior to issuance of the Washington Stock Consideration) by the Outside Date Date, including by pursuing all available avenues of administrative and judicial appeal, and (y) Chicago shall defend through litigation on the merits any claim asserted in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company court or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make before any other concession or provide Governmental Entity by any additional security (including a guaranty)Person in order to avoid entry of, or amend to have vacated or modify terminated, any ContractJudgment (whether temporary, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (ipreliminary or permanent) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing).that would preve
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, Parent (and each of the Parent Subsidiaries) and the Company (and the Company Subsidiaries) parties hereto shall use 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 Laws to consummate and make effective the Transactions, including Merger and the Merger, as soon as practicable after the date hereof (and in any event other transactions contemplated by the Outside Date)this Agreement, including (i) preparing the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals, and filing expirations or otherwise providingterminations of waiting periods, in consultation with 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 necessary consents, approvals or waivers from third parties, (iii) the defending of any investigations or proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger and the other Party transactions contemplated hereby, including seeking to avoid the entry of, or to have reversed, terminated, lifted or vacated, any stay, temporary restraining order or other injunctive relief or order entered by any Governmental Entity that could prevent or delay the transactions or the consummation of the transactions contemplated hereby and as promptly as reasonably practicable (iv) the execution and advisable delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall the Company or any of its Subsidiaries or Parent or Merger Sub be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party (other than with respect to Parent and Merger Sub, any filing fees to any Governmental Entity) for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) The Company, Parent and Merger Sub shall (i) promptly, but in no event later than ten (10) Business Days after the date hereof, file any and all documentation to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as reasonably practicable (and in any event by the Outside Date) 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 Transactions, including the Merger, and (ii) taking all steps as may be necessary, subject to the limitations in this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation of the foregoing, each Party, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a required Notification and Report Form pursuant to Forms under the HSR Act with respect to the Transactions as promptly as reasonably practicable, Merger and in any event within fifteen (15) Business Days after the execution of other transactions contemplated by this Agreement (unless a later date is mutually agreed between the Parties“HSR Filings”), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary use best efforts to cause the expiration or termination of the any applicable waiting period periods under the HSR Act, (ii) promptly file any and all required applications and notifications under the Competition Act with respect to the Merger and the other transactions contemplated by this Agreement, including a submission requesting from the Commissioner of Competition an advance ruling certificate pursuant to subsection 102(1) of the Competition Act, and use best efforts to cause the expiration or termination of any applicable waiting periods under the Competition Act, except that the parties will only make a filing pursuant to Part IX of the Competition Act if determined by Parent to be reasonably advisable after consultation with the Company (the “Canadian Antitrust Filings” and together with the HSR Filings, the “Antitrust Filings”), (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity, and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking 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 or any other Person may assert under any Law with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Merger so as to enable the Closing to occur as soon as reasonably practicable possible (and in any event no later than the End Date), including, without limitation, (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the Outside Date) sale, divestiture or disposition of any assets or businesses of Parent or its Subsidiaries or of the Company or its Subsidiaries and (y) make all other necessary filings under otherwise taking or committing to take any applicable Regulatory Law actions that after the Closing Date would limit the freedom of Parent or its Subsidiaries’ (including the Surviving Corporation’s or its Subsidiaries’) 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, in each case as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under required in order to avoid the entry of, or to effect the dissolution of, any Regulatory Laws. Notwithstanding anything to injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the contrary set forth in this Agreementeffect of preventing the Closing, none of Parent, Merger Sub materially delaying the Closing or delaying the Closing beyond the End Date; provided that neither the Company nor any of their respective its Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, or consent to, or offer or agree to, take to or commit to otherwise take any action with respect to, any requirement, condition, limitation, understanding, agreement or order of a Governmental Entity to (A) sell, license, assign, transfer, divest, to hold separate or otherwise dispose of any assetsof, business or portion of to conduct, restrict, operate, invest or otherwise change the assets or business of the Company, the Surviving Company, Parent, Merger Sub Company or any Subsidiary of any of the foregoing or (B) impose any restrictionits Affiliates, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any unless such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries only in the event that the Closing occurs. FurtherExcept 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 with respect to the matters set forth in this Section 5.6 that would be reasonably likely to prevent or materially delay the Closing. Notwithstanding any other provision of this Agreement, the Equity Investors shall have no obligation, and Parent shall have no obligation to cause the Equity Investors, to sell, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets or business of the Equity Investors or their Affiliates, in each case other than the Company and its Subsidiaries.
(c) The Company, Parent and Merger Sub shall cooperate and consult with each other in connection with the making of all registrations, filings, notifications, communications, submissions, and any other material actions pursuant to this Section 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 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 (w) to exclude documents filed in response to Items 4(c) and 4(d) of the HSR Filing, (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 concerns. Each of the Company, Parent and Merger Sub agrees not to participate in any substantive meeting or discussion, either in Person or by telephone, with any Governmental Entity in connection with the proposed transactions unless it consults with the other party in advance and, to the extent not prohibited by such Governmental Entity, gives the other party 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 Actionadministrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatenedthreatened to be instituted) challenging or seeking to restrainany transaction contemplated by this Agreement as violative of any Law, prohibit or place conditions on the consummation each of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conductedCompany, Parent (and the Parent Subsidiaries) Merger Sub shall cooperate in all respects with each other and the Company (and the Company Subsidiaries) shall use their reasonable respective best efforts to defend contest and resist any such action or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(b) Each of Parent Merger and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act other transactions contemplated by this Agreement. The foregoing notwithstanding or any other Regulatory Lawprovision of this Agreement, (i) cooperate nothing in all respects, including by furnishing this Section 5.6 shall limit a party’s right to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party terminate this Agreement pursuant to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”Section 7.1(b) or any other Governmental EntitySection 7.1(c) so long as such party has, by promptly providing copies prior to the other Party of any such written communicationstermination, and of any communication received or given in connection complied with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other its obligations under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company5.6.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing).
Appears in 1 contract
Sources: Merger Agreement (Petsmart Inc)
Efforts. (a) Subject to the terms and conditions of this Agreement, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall each party will use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law laws and regulations to consummate the Transactions, including Merger and the Merger, other transactions contemplated by this Agreement as soon as practicable after the date hereof (and in any event by the Outside Date)hereof, including including, without limitation, (i) preparing and filing or otherwise providingfiling, in consultation with the other Party party and as promptly as reasonably practicable and advisable after the date hereof, all documentation to effect all necessary applications, notices, petitions, filings filings, and other documents and to obtain as promptly as reasonably practicable (and in any event by the Outside Date) all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits permits, and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate the Transactions, including Merger or any of the Merger, other transactions contemplated by this Agreement and (ii) taking all steps as may be necessary, subject to the limitations in this Section 6.2, necessary to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals; provided, however, that efforts in connection with the Financing and the Required Indebtedness shall be governed by Section 7.12 and not this Section 7.3. In furtherance and not in limitation of the foregoing, each Party, as applicable, party hereto agrees (i) to (x) make, or cause to be made, make an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions transactions contemplated hereby as promptly as reasonably practicable, and in any event within fifteen (15) 15 Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties)Agreement, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials material that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period periods under the HSR Act as soon as reasonably practicable practicable, (and in any event by ii) to file all applications required to be filed with the Outside Date) FCC within 30 calendar days after the execution of this Agreement; and (yiii) make to file all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, notices and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to applications with PUCs within 15 Business Days after the contrary set forth in execution of this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a7.3(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits permits, and authorizations for the Transactions transactions contemplated by this Agreement under the HSR Act, the Communications Act or any other Regulatory LawLaw (as defined below), (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, respects and consult with each other in connection with any communication, filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party 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 reasonably considering in good faith comments of the other Party, documents submitted therewith); (ii) promptly inform the other Party party of any communication received by such Party party from, or given by such Party party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with), the DOJFCC, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Personperson, and to the extent not prohibited including by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided promptly providing copies to the other under this Section 6.2(b) as “Outside Counsel Only Material” which party of any such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter intowritten communications, and the contents of, of any agreement (including a timing agreement) material communication received or given in connection with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In connection with and without limiting the foregoingproceeding by a private party, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing).each
Appears in 1 contract
Sources: Merger Agreement (Tw Telecom Inc.)
Efforts. (a) Subject to Each of the terms and conditions of this AgreementCompany, Holdings, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) Merger Sub shall use 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 parties in doing, all things necessary, proper or advisable under applicable Law or otherwise to consummate and make effective the Transactions, including the Merger, as soon as practicable after the date hereof (Merger and in any event by the Outside Date), including (i) preparing and filing or otherwise providing, in consultation with the other Party and transactions contemplated by this Agreement as promptly as reasonably practicable and advisable after practicable, (ii) take all such actions as may be required to cause the date hereof, all documentation expiration of the notice periods under Competition Laws with respect to effect all necessary applications, notices, petitions, filings and other documents and to obtain such transactions as promptly as reasonably practicable (and in any event by the Outside Date) 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 Transactions, including the Merger, and (ii) taking all steps as may be necessary, subject to the limitations in this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation of the foregoing, each Party, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none of (iii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations or orders required to be obtained by Holdings, Parent, Merger Sub or the Company, or any of their respective Subsidiaries shall be required toto effect the 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 (including those in connection with the Company pre-merger notification obligations of the HSR Act and the PRC Regulatory Approvals), in connection with the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, 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 notadversely 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 required submissions, and not permit pay any Company Subsidiary tofees due in connection therewith (all such fees to be solely the responsibility of, and to be paid by, Parent and Merger Sub), with respect to this Agreement and the Merger required under any Competition Laws and (viii) as promptly as reasonably practicable after the date hereof, make all necessary filings (and in any event file all required HSR Act notifications within ten (10) Business Days after the date hereof), 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. The Company, Holdings, Parent and Merger Sub shall cooperate with each other in connection with (A) preparing and filing the Proxy Statement and any Other Filings, (B) determining whether any action by or in respect of, or filing with, any Governmental Entity is required, in connection with the consummation of the Merger and (C) seeking any such actions, consents, approvals or waivers or making any such filings. The Company, on the one hand, and Holdings and Parent, on the other hand, shall furnish to each other all information required for any application or other filing under the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement. No party to this Agreement shall consent to any delay of the Closing at the behest of any Governmental Entity without the prior written consent of Parentthe other parties to this Agreement. Holdings, become subject toParent and Merger Sub shall not, consent to, or offer or agree to, take or commit except as may be consented to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of in advance in writing by the Company, the Surviving Companydirectly or indirectly through one or more of its affiliates, Parenttake any action, Merger Sub including acquiring or making any investment in any corporation, partnership, limited liability company or other Person or any Subsidiary of any division or assets thereof, that would reasonably be expected to cause a delay in or jeopardize the satisfaction of the foregoing conditions contained in Article 6 or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing).Without limiting this
Appears in 1 contract
Efforts. (a) Subject From and after the date hereof, and subject to the terms and conditions of this Agreement, Parent (the Parties shall, and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall cause their respective Affiliates to, use their respective reasonable best efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Law to consummate and make effective as promptly as reasonably practicable the Transactions, including transactions contemplated by this Agreement and the Merger, as soon as practicable after the date hereof (and in any event by the Outside Date)other Transaction Documents, including (i) preparing the preparation and filing of all forms, registrations, Filings and notices required to be filed to satisfy the conditions precedent to this Agreement (including those set forth in Section 11.1) and to consummate the transactions contemplated by this Agreement as soon as practicable, (ii) the execution and delivery of any additional instruments necessary to consummate the transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement, and (iii) obtaining necessary waivers, consents and approvals from applicable third parties required under Section 3.4 of the Georgia Disclosure Schedules. Without limiting the foregoing, (x) Georgia and Florida shall, and shall cause their respective Affiliates to, with respect to Regulatory Approvals required for the closing of the Purchased Entity Sale (the “Purchased Entity Sale Regulatory Approvals”), and (y) Georgia, Washington and Florida shall, and shall cause their respective Affiliates to, with respect to Regulatory Approvals required for the closing of the Washington Florida Interest Sale and the Mergers (including the issuance of the Washington Stock Consideration) (the “Washington Sale Regulatory Approvals”), use their respective reasonable best efforts to obtain (and shall cooperate with each other and Chicago in obtaining) any such Regulatory Approvals (which actions shall include promptly furnishing the other Party and Chicago (or otherwise providingthe applicable Governmental Entity) with all information reasonably required in connection therewith) required to be obtained or made by such Parties or any of their Affiliates in connection with the transactions contemplated by this Agreement, including filing as soon as practicable and, in consultation any event, no later than required by applicable Law, with the relevant Governmental Entity any notices required to be filed by such Parties or their Affiliates in connection with, or as necessary to consummate, the transactions contemplated by this Agreement. Each of Georgia and the Purchased Entity (and its Subsidiaries), on the one hand, and Florida, on the other hand, shall cooperate in good faith with the other Party (or its legal counsel) to satisfy all required obligations in relation to Purchased Entity Sale Regulatory Approvals. Each of Georgia, on the one hand, and Florida and Washington (and its Subsidiaries), on the other hand, shall cooperate in good faith with the other Party and as promptly as reasonably practicable Chicago (or their respective legal counsels) to satisfy all required obligations in relation to Washington Sale Regulatory Approvals. Chicago is hereby expressly made a third-party beneficiary of Section 8.1(a).
(b) The Parties shall not, and advisable shall cause their respective Affiliates not to, take any action after the date hereofof this Agreement that would reasonably be expected to impair or materially delay the obtaining of, all documentation to effect all or result in not obtaining, any Regulatory Approval, including any Purchased Entity Sale Regulatory Approvals or Washington Sale Regulatory Approval necessary applications, notices, petitions, filings and other documents and to obtain as promptly as reasonably practicable (and in any event by the Outside Date) 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 Transactions, including the Merger, and (ii) taking all steps as may be necessary, subject prior to the limitations in this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvalsClosing. In furtherance and not in limitation of Without limiting the foregoing, each PartyGeorgia, as applicableWashington and Florida shall not, agrees and shall cause their respective Affiliates not to, acquire or enter into a definitive agreement to (x) makeacquire, by merger, consolidation, stock or asset purchase or otherwise, any business or corporation, partnership or other business organization or division thereof, or cause merge or consolidate with any other Person, if such transaction would reasonably be expected to materially impair or materially delay the obtaining of, or result in not obtaining, any Regulatory Approval required to be made, an appropriate filing of a Notification and Report Form pursuant obtained to satisfy the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary conditions set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries Section 11.1(a). The Parties shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parentall of the Parties, become subject to, consent to, extend or offer or agree to, take or commit to take extend any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory LawLaw or other Law under which a Regulatory Approval is required, or enter into any agreement with any Governmental Entity related to this Agreement, the other Transaction Documents or the transactions contemplated by this Agreement.
(c) Prior to the Closing, the Parties shall each keep the other reasonably apprised of the status of matters relating to the completion of the transactions contemplated by this Agreement and work cooperatively in connection with obtaining all Regulatory Approvals. In that regard, prior to the Closing, (x) subject to the Confidentiality Agreement and Section 6.2, with respect to the Purchased Entity Sale Regulatory Approvals, Georgia and the Purchased Entity, on the one hand, and Florida, on the other hand, and (y) subject to the Confidentiality Agreement and Section 7.2, with respect to the Washington Sale Regulatory Approvals, Georgia, on the one hand, and Florida and Washington, on the other hand, shall (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity provide any necessary information with respect to review (and, in advance and comment on drafts the case of filings and submissions and reasonably considering in good faith comments of correspondence, provide the other PartyParty (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 material correspondence with, a Governmental Entity, in each case, in connection with such Regulatory Approval; (ii) 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 material 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”) or any other of its Affiliates or Representatives from any Governmental Entity, by promptly providing copies to the other Party of any Entity regarding such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and Regulatory Approval; (iii) permit the other Party reasonable and sufficient time to review and discuss in advance any communication that it gives toadvance, and consult with each consider in good faith the views of the other Party in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) connection with, the DOJ, the FTC or any other proposed communication with any such Governmental Entity or, in connection with such Regulatory Approval; (iv) if such Party or any proceeding Affiliate or Representative of such Party receives a request for additional information or documentary material from any Governmental Entity with respect to such Regulatory Approval, then such Party shall use its reasonable best efforts to comply with such request as promptly as reasonably practicable; (v) unless otherwise required by a private partythe applicable Governmental Entity, not participate in any material meeting with any Governmental Entity in connection with such Regulatory Approval (or make oral submissions at meetings or in telephone, videoconference, or other Personconversations) unless it consults with the other Party in advance and, and to the extent not prohibited by the DOJ, the FTC or other applicable such Governmental Entity or other Personany applicable Law, give gives the other Party the reasonable opportunity to attend and participate thereat; (vi) furnish the other Party with copies of all correspondence and Filings (or, in the case of oral communications, advise the other Party of the substance thereof) between it or any of its Affiliates or Representatives, on the one hand, and any Governmental Entity, on the other hand, with respect to such Regulatory Approval; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company a Party may, as each it deems advisable and necessary, reasonably designate any competitively portions of correspondence or Filings that contain sensitive material provided personal data or commercially sensitive information relating to the other under this Section 6.2(b) such Party or its controllers or control persons as “Outside Counsel Only Materialoutside counsel only,” which such material and the information contained therein portions shall be given only to the recipient’s outside antitrust 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 (Parent on the one hand or the Company on the other) or its legal counsel, and (vii) promptly furnish the other Party with such necessary information and reasonable assistance as the other Party may reasonably request in connection with its preparation of Filings to any such Governmental Entity for any Regulatory Approval; provided that a Party may, as it deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Agreement as “outside counsel only,” which such materials and the information contained therein shall be given only to the recipient’s outside legal counsel 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 or its legal counsel; provided, however, that materials provided to another Party pursuant to this Section 8.1 may be redacted by the providing Party (i) to remove references concerning the valuation of or future plans for the Business, Washington Business, Business Sale Process or the Washington Sale Process, (ii) as necessary to comply with contractual obligations or applicable Law and (iii) as necessary to address reasonable privilege or confidentiality concerns. The cooperation covenants set forth in this Section 8.1(c) shall apply mutatis mutandis to Chicago with respect to the Regulatory Approvals (as defined in the Chicago Transaction Agreement) required to be obtained under the Chicago Transaction Agreement, and shall require the Parties and Chicago to cooperate with each other in respect of the Regulatory Approvals required hereunder and under the Chicago Transaction Agreement in the manner set forth in this Section 8.1(c) (other than the right to participate in meetings under the foregoing clause (v)). Chicago is hereby expressly made a third-party beneficiary of Section 8.1(c). For the sake of clarity, nothing in this Section 8.1 shall require Georgia or any of its Affiliates to share any Filings, documents, correspondence or other information with Washington or its Affiliates or Representatives (other than Florida) and/or secure the participation of Washington or its Affiliates or Representatives (other than Florida) in any meeting or other interaction with any Governmental Entity with respect to any Purchased Entity Sale Regulatory Approvals that are not also Washington Sale Regulatory Approvals; provided that Georgia shall answer reasonable questions of Washington related to any Purchased Entity Sale Regulatory Approvals that are not also Washington Sale Regulatory Approvals.
(d) Without limiting the foregoing, (i) the Parties shall, and shall cause their respective Affiliates to, file, as promptly as practicable notifications under the HSR Act; (ii) Georgia and Florida shall, and shall cause their respective Affiliates to, file as promptly as practicable following the date of this Agreement, any other Filing required to obtain any other Purchased Entity Sale Regulatory Approvals; and (iii) Georgia, Florida and Washington shall, and shall cause their respective Affiliates to, file as promptly as practicable, following the date of this Agreement, any other Filing required to obtain any Washington Sale Regulatory Approvals.
(e) In furtherance of the foregoing, and notwithstanding anything in this Agreement to the contrary, Florida, Washington and Georgia shall, and shall cause their Affiliates to, use reasonable best efforts to take all such action as may be necessary to avoid or eliminate each and every impediment under any applicable Law with respect to the Purchased Entity Sale and to resolve such objections, if any, as any Governmental Entity or any other Person may assert under any applicable Law with respect to the Purchased Entity Sale, so as to enable the Closing to occur as soon as reasonably practicable (and in any event so as to enable the Closing to occur prior to the Outside Date), including using reasonable best efforts (including proffering and agreeing to the remedies set forth in this Section 8.1(e)) to resolve such objections of the applicable Governmental Entities with respect to the Regulatory Approvals set forth in Section 11.1(a)(i) and Section 11.1(a)(ii), subject to the terms of the remainder of this Section 8.1(e). With respect to the Regulatory Approvals set forth in Section 11.1(a)(i) with respect to the Purchased Entity Sale, Florida shall direct the timing of proffering and agreeing to the remedies set forth in this Section 8.1(e), subject to the terms of the remainder of this Section 8.1(e), and further subject to consulting in good faith with Georgia prior to making any such timing decisions. With respect to the Regulatory Approvals set forth in Section 11.1(a)(ii) with respect to the Purchased Entity Sale, Florida, Washington and Georgia shall, and shall cause their Affiliates to, use reasonable best efforts (including proffering and agreeing to the remedies set forth in this Section 8.1(e)) to resolve such objections of the applicable Governmental Entities at both (i) their initial stage of review in order to mitigate the risk of referral of the Purchased Entity Sale by such applicable Governmental Entities to an in-depth investigation or review, and (ii) in the event of such referral, at the earliest available opportunity during the in-depth investigation or review, including at their outset, in order to secure the approval of the Purchased Entity Sale by such applicable Governmental Entities prior to the Outside Date, subject to the terms of the remainder of this Section 8.1(e). In furtherance of the foregoing, Florida shall proffer to and agree to sell, divest, lease, license, transfer, dispose of or otherwise encumber or hold separate, before or after the Closing, any assets, licenses, operations, rights, product or service lines, businesses or interests therein (each, a “Divestiture Remedy”) of the Business and/or of Florida or its Subsidiaries and agree to make any material changes (including through a licensing arrangement) or implement any restriction or condition on, or other impairment of Florida’s and/or the Purchased Entity’s or its Subsidiaries’ ability to own, retain, manage or operate, any such assets, licenses, product or service lines, businesses or interests therein and/or Florida’s ability to vote, transfer, receive dividends, or otherwise exercise full ownership rights with respect to ownership interests in the Business and/or of Florida or its Subsidiaries; provided, however, that, notwithstanding any other provisions of this Agreement, neither Florida nor any of its Subsidiaries shall be required to take or agree to take any such action that would reasonably be expected to have, individually or in the aggregate, a material adverse effect on the business, financial condition or operations of Florida and its Subsidiaries (including for this purpose, the Purchased Entity and its Subsidiaries) from and after the Closing (but, for purposes of determining whether any action would reasonably be expected to have, individually or in the aggregate, a material adverse effect, calculated as if Florida and its Subsidiaries from and after the Closing were collectively the same size as the Business as of the date of this Agreement). Notwithstanding anything in this Agreement to the contrary, Parent none of Georgia, Florida or their respective Affiliates shall be entitled obligated to lead take or agree or commit to take any action in connection with obtaining the strategy Purchased Entity Sale Regulatory Approvals that is not conditioned on the Closing. Additionally, in connection with obtaining the Purchased Entity Sale Regulatory Approvals, Georgia and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but its Affiliates shall not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter intobe obligated to, and none of the contents ofParties shall take or agree or commit to take any action that relates to any Excluded Assets or Retained Businesses. In addition, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at Florida and, to the time of extent applicable, Washington, shall defend through litigation on the merits any claim asserted in court or before any other Governmental Entity by any party in order to avoid entry into of, or to have vacated or terminated, any timing Judgment (whether temporary, preliminary or similar agreement, the term thereof permanent) that would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate prevent the Closing prior to of the Purchased Entity Sale by the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the TransactionsDate, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing).pursuing all a
Appears in 1 contract
Sources: Transaction Agreement (Fidelity National Information Services, Inc.)
Efforts. (a) 6.9.1 Subject to the terms and conditions of this Agreement, Parent each of the Parties shall cooperate with each other and each use (and the Parent Subsidiariesshall cause their respective Subsidiaries to use) and the Company (and the Company Subsidiaries) 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 Party in doing, all things necessary, proper or advisable reasonably necessary under applicable Applicable Law to consummate the Transactions, including the Merger, Merger as soon promptly as practicable after the date hereof (and in any event by the Outside Date)practicable, including (i) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably practicable and advisable after the date hereof, all documentation to effect obtaining of all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as reasonably practicable (and in any event by the Outside Date) all waiting period expirations or terminations, consents, clearancesactions, waivers, licensesconsents and approvals from Governmental Entities, orders, registrations, approvals, permits and authorizations necessary the expiry or advisable to be obtained from early termination of any third party and/or any Governmental Entity in order to consummate the Transactions, including the Mergerapplicable waiting periods, and the making of all necessary registrations and filings (iiincluding filings with Governmental Entities, if any) and the taking all of such reasonable steps as may be necessaryreasonably necessary to obtain an approval or waiver from, subject or to avoid a Proceeding by, any Governmental Entities, (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 Merger and 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 limitations in this Section 6.2Company paying, any material cash consideration to obtain all such waiting period expirations any Third Party from whom consent or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. approval is required (other than filing fees payable to Governmental Entities).
6.9.2 In furtherance and not in limitation of the foregoingundertakings pursuant to this Section 6.9, each Party, as applicable, agrees to of Parent and the Company shall (xi) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) 30 Business Days after of the execution of this Agreement date hereof prepare and file any notification and report forms and related material required under the HSR Act and any additional filings or notifications and related material that are necessary, proper or advisable to obtain SARB Approval, (unless a later date is mutually agreed between the Parties)ii) (A) submit, and to supply as promptly as reasonably practicable and advisable in any event within 30 Business Days of the date hereof, to CFIUS a draft joint voluntary notice under Exon-▇▇▇▇▇▇ with respect to the Merger, (B) as promptly as practicable thereafter, file with CFIUS a final joint voluntary notice, and (C) supply any additional information and documentary materials information or material that may be requested pursuant in connection with the CFIUS review process within the amount of time allowed by CFIUS, and (iii) cooperate with the other Parties in connection with any such filings or notifications, and in connection with resolving any investigation or other inquiry of any Governmental Entity in relation to such filings or notifications, including the U.S. Department of Justice or the U.S. Federal Trade Commission under the HSR Act.
6.9.3 Subject to Applicable Law relating to the HSR Act exchange of information, the Company and to take all Parent and their respective counsel shall (i) cooperate with each other actions necessary to cause in determining whether any action by or in respect of, or filing with, any Governmental Entity is required, in connection with the expiration or termination consummation of the applicable waiting period Merger and seeking any such actions, consents, approvals or waivers or making any such filings, (ii) furnish to each other all information required for any application or other filing under the rules and regulations of any Applicable Law in connection with the transactions contemplated by this Agreement (including in connection with CFIUS Clearance), (iii) 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 as soon as reasonably practicable or in connection with CFIUS Clearance) with a Governmental Entity in connection with the transactions contemplated hereby, (iv) promptly inform each other of any material communication (or other material correspondence or memoranda) received from, or given to, any Governmental Entity in connection with the transactions contemplated hereby, and (v) promptly 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 Entity or its respective staff, on the other hand, with respect to the transactions contemplated hereby. The Company and Parent shall, to the extent practicable, provide the other Party and its counsel with advance notice of and the opportunity to participate in any event material discussion or meeting with any Governmental Entity in respect of any filing, investigation or other inquiry in connection with the transactions contemplated hereby (including in connection with CFIUS Clearance).
6.9.4 Notwithstanding anything else contained herein, Parent and its Subsidiaries shall take, and cause to be taken, all steps necessary to avoid or eliminate any impediment under Applicable Law that may be asserted by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicablea Governmental Entity with respect to, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything satisfy all conditions to the contrary set forth in this Agreementconsummation of, none of Parentthe Merger; provided, Merger Sub or however, that neither Parent nor any of their respective its Subsidiaries shall be required to, and the Company may shall not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to(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, consent tooffer, or offer or propose, agree to, take or commit (i) to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate separate, license, cause a Third Party to acquire or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of (A) any of the foregoing respective Affiliates of the Company or Parent or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unlessrespective operations, within such clause (B)divisions, such restrictionbusinesses, requirement products, customers, assets, properties or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary rights of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries Affiliates (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 all the foregoing’s freedom of action with respect to, or ability to retain, one or more of its operations, divisions, businesses, products, customers, assets, properties or rights, including, in the case of Parent, the right to own or operate any portion of the businesses of the Company or any of its Subsidiaries or Affiliates (a “Restraint”), or (iii) to enter into any Order, consent decree or other agreement to effectuate a Divestiture or Restraint or (y) in connection with efforts to obtain CFIUS Clearance, agree or consent to any condition, agreement, order or burden in order to obtain CFIUS Clearance that would (i) prevent Parent from appointing, removing and controlling, at its sole discretion, all of the directors of the Surviving Corporation, (ii) restrict Parent from receiving information concerning the operations, finances, sales and customers of the Surviving Corporation necessary to allow Parent to direct, operate and control the Surviving Corporation as its Subsidiary, or (iii) cause Parent’s control or ownership of the Surviving Corporation and its Subsidiaries to be passive or to otherwise restrict in any material respect the ability of Parent to control and operate the Surviving Corporation and its Subsidiaries or their respective businesses as presently conducted and as currently proposed to be conductedbusinesses; provided, Parent (and however, that the Parent Subsidiaries) and the Company (and the Company Subsidiarieslimitations on efforts in this Section 6.9.4(y)(i-iii) shall use their reasonable best not affect Parent’s efforts obligations to defend or contest, including through litigation or other means, the extent any objection restrictions proposed by CFIUS solely relate to the transmission of information to, or Actions challenging, the consummation management of the TransactionsSurviving Corporation by, and any shareholder of Parent’s ordinary shares or representatives (including board representatives) of any such shareholder. Nothing in this Section 6.9.4 shall require Parent or its Subsidiaries to contest or resist any Proceeding commenced by a Governmental Entity or to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other orderOrder entered in any such Proceeding, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Transactions, including the Merger.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing 6.9.5 Subject to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party proviso to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so6.9.1, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, use its reasonable best efforts to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all things reasonably necessary, proper or advisable to obtain the consents reasonably requested by Parent; provided that the Company shall not take any third party action to solicit or obtain such consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, unless and until the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for ’s counsel is directed to do so by Parent or (ii) subject to Parent’s counsel and then only upon the occurrence of basis so requested, no such action will be required that is not conditioned on the Closing)Closing and nothing in this Section 6.9.5 will affect the Parties’ relative rights and obligations under Article 7.
Appears in 1 contract
Efforts. (a) Subject to From and after the terms date hereof until earlier of the Closing and conditions the termination of this AgreementAgreement pursuant to Article VIII, Parent Purchaser and Seller shall (and the Parent Subsidiariesshall cause their respective Affiliates to) and the Company (and the Company Subsidiaries) shall use reasonable best efforts to take, or cause to be taken, all actions actions, and to do, or cause to be done, all things necessary, proper or advisable under any applicable Law to consummate and make effective in the Transactionsmost expeditious manner possible the Transaction, including the Merger, as soon as practicable after other transactions contemplated by this Agreement and (solely with respect to the date hereof (and in any event by Purchaser) the Outside Date)Related Transaction, including (i) preparing the preparation and filing or otherwise providingof all forms, registrations and notices required to be filed to consummate the Transaction, the other transactions contemplated by this Agreement and (solely with respect to the Purchaser) the Related Transaction, which shall occur, in consultation with the case of filing of the Notification and Report Form pursuant to the HSR Act, no later than ten (10) Business Days after the date of this Agreement unless otherwise agreed by the parties hereto (provided that, if there are any changes in the applicable regulations under the HSR Act that would apply to the Transaction, the other Party transactions contemplated by this Agreement or the Related Transaction prior to the date of filing pursuant to the HSR Act, Purchaser and Seller shall use reasonable best efforts to file or cause to be filed any and all required notification and report forms under the HSR Act as promptly as reasonably commercially practicable and advisable after the date hereofthereafter), all documentation to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as reasonably practicable (and in any event by the Outside Date) case of 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 Transactions, including the Mergerother filings as soon as practicable, and (ii) taking the execution and delivery of any additional instruments necessary to consummate the Transaction, the other transactions contemplated by this Agreement and (solely with respect to the Purchaser) the Related Transaction and to fully carry out the purposes of this Agreement and the Related Transaction, as applicable. Without limiting the foregoing, (x) Purchaser shall file to record the IP Assignment Agreement (and prepare and file to record any other documentation relating to the transfer of Transferred IP thereunder) with the applicable Governmental Entities at Purchaser’s sole cost and expense; provided that, upon Purchaser’s request, Seller shall provide reasonable assistance to Purchaser in connection therewith and (y) Purchaser and Seller shall (and Purchaser shall cause its “ultimate parent entity,” as such term is generally determined in accordance with applicable Antitrust Laws, to) use reasonable best efforts to take all steps actions reasonably necessary to obtain (and shall cooperate with each other in obtaining) any Regulatory Approvals (which actions shall include furnishing all information reasonably required in connection with such Approvals) required to be obtained or made by Purchaser, Seller, the other Seller Entities or the Purchased Companies in connection with the Transaction, the other transactions contemplated by this Agreement or (solely with respect to the Purchaser) the Related Transaction. From and after the date hereof until the earlier of the Closing and the termination of this Agreement pursuant to Article VIII, each of Purchaser and Seller shall use their respective reasonable best efforts to fulfill all conditions precedent to this Agreement (including those set forth in Section 7.1) and Purchaser shall use its reasonable best efforts to fulfill all conditions precedent to the Hitachi SPA. The parties shall use reasonable best efforts to effect the transfer of any Permits required as may be necessarya result of the execution of this Agreement or the Hitachi SPA or the consummation of the Transaction or the other transactions contemplated by this Agreement or (solely with respect to the Purchaser) the Related Transaction. Seller shall not enter into any agreement with any Governmental Entity not to consummate the transactions contemplated by this Agreement, except with the prior written consent of Purchaser or at or after the time in which this Agreement has been terminated pursuant to Article VIII. Notwithstanding the foregoing or anything in this Agreement to the contrary, Purchaser shall have the right to direct and control all matters with any Governmental Entity or with any other Person in connection with any Action or Proceeding by a private party relating to any Antitrust Laws in connection with this Agreement or the transactions contemplated by this Agreement, including by directing and controlling the strategy and making final determinations related to the review or investigation by any Governmental Entity of, and attending as reasonably possible all meetings and discussions with any Governmental Entity with respect to, the transactions contemplated by this Agreement; provided, that to the extent practicable, Purchaser will consult with Seller and consider in good faith the views of Seller in connection with such matters, including any filing made with, or written materials submitted to, any Governmental Entity in connection with the transactions contemplated hereby. Seller shall bear any filing fees payable in order to obtain any Regulatory Approvals pursuant to this Section 5.1 in an amount not to exceed three million dollars ($3,000,000), and Purchaser shall bear any such fees in excess thereof.
(b) Prior to the Closing, Purchaser and Seller shall each use reasonable best efforts to keep the other reasonably apprised of the status of matters relating to the completion of the Transaction, the other transactions contemplated by this Agreement and the Related Transaction and work cooperatively in connection with obtaining all required Regulatory Approvals. In that regard, prior to the Closing, subject to the limitations Confidentiality Agreement, Section 5.3 and the Access Limitations, each party shall promptly consult with the other party to this Agreement to provide any reasonably necessary information with respect to (and, in the case of written correspondence, provide the other party (or their outside counsel) copies of) all filings made by such party with any Governmental Entity or any other information supplied by such party to, or correspondence with, a Governmental Entity in connection with this Agreement, the Transaction, the other transactions contemplated by this Agreement (other than immaterial or ministerial filings) or the Related Transaction. Subject to the Confidentiality Agreement, Section 6.25.3 and the Access Limitations, each party shall promptly inform the other party and, if in writing, furnish the other party with copies of (or, in the case of material oral communications, advise the other party orally of) any communication from any Governmental Entity (other than immaterial communications) regarding the Transaction, the other transactions contemplated by this Agreement or the Related Transaction, and permit the other party to obtain all such waiting period expirations or terminationsreview and discuss in advance, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not consider in limitation good faith the views of the foregoingother party in connection with, each Partyany proposed written (or any material proposed oral) communication with any such Governmental Entity. If either party or any Representative of such party receives a request for additional information or documentary material from any Governmental Entity (other than immaterial communications) with respect to the Transaction, as applicablethe other transactions contemplated by this Agreement or the Related Transaction, agrees then such party will use its reasonable best efforts to (x) make, or cause to be made, promptly and after consultation with the other party, an appropriate filing of a Notification and Report Form pursuant response in compliance with such request. Neither party will participate in, or permit its Representatives to participate in, any meeting with any Governmental Entity (other than immaterial communications) in connection with this Agreement, the HSR Act with respect to Transaction, the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution of other transactions contemplated by this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all or make substantive oral submissions at meetings or in telephone or other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Dateconversations) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action Related Transaction unless it consults with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review party in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Partyand, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJsuch Governmental Entity, the FTC or gives such other applicable Governmental Entity or other Person, give the other Party the party a reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant . Subject to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of ParentConfidentiality Agreement, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent Section 5.3 and the Company Access Limitations, each party shall furnish the other party with copies of all filings, written submissions, correspondence, and material written communications between it and any such Governmental Entity (other than immaterial communications) with respect to this Agreement, the Transaction, the other transactions contemplated by this Agreement or the Related Transaction, and furnish the other party with such necessary information and reasonable assistance as the other party may reasonably request in connection with its preparation of filings or submissions of information to any such Governmental Entity. Purchaser and Seller may, as each deems reasonably advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) 5.1 as “Outside Counsel Only Materialoutside counsel only,” which and such material materials and the information contained therein shall be given only to the outside antitrust legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers officers, or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on Purchaser or Seller, as the one hand or the Company on the othercase may be) or its legal counsel. Notwithstanding anything in Any materials provided pursuant to this Agreement to Section 5.1(b) may be redacted consistent with the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the CompanyAccess Limitations.
(c) In connection with and without limiting Subject to the foregoinglast sentence of this Section 5.1(c), in the event that Parent requests the Company Purchaser agrees to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its use reasonable best efforts to take any and all steps and actions that are lawful, necessary and proper to avoid, resolve or eliminate each and every impediment that may be asserted by any Governmental Entity under any Antitrust Law with respect to the transactions contemplated by this Agreement or the Related Transaction so as to enable the Closing and the consummation of the Related Transaction to occur expeditiously, but in no case later than the Outside Date, including, as applicable, proposing, negotiating, committing to or effecting, by consent decree, hold separate order or otherwise, (i) the sale, divesture or disposition of, or holding separate (through the establishment of a trust or otherwise), of the assets, properties and businesses of (x) the Business (including the Purchased Assets and the assets of any of the Purchased Controlled Companies) or (y) Purchaser and its Subsidiaries, (ii) the termination, modification or extension of existing relationships and contractual rights and obligations of the Business (including of the Purchased Controlled Companies), (iii) the establishment or creation of relationships and contractual rights and obligations of the Business (including of the Purchased Controlled Companies), (iv) the termination of any relevant venture or other arrangement of the Business (including of the Purchased Controlled Companies) and (v) any other change or restructuring of the Business (including of the Purchased Controlled Companies) (any such action, a “Regulatory Remedy”), in each case, as may be required to be taken in order to obtain any third party consents Regulatory Approval or avoid the entry of, or to effect the dissolution of, any decree, order, Judgment, injunction, temporary restraining order or other order in any litigation by any Governmental Entity, which would otherwise have the effect of materially delaying or preventing the consummation of the transactions contemplated by this Agreement or the Related Transaction; provided that Purchaser shall not be required to agree to any Contracts Regulatory Remedy that, individually or in the aggregate, (x) would reasonably be expected to significantly impair (1) the benefits of the Transaction and the other transactions contemplated by this Agreement to the Purchaser or (2) the value of the Business, taken as a whole, or (y) solely with respect to any Regulatory Remedy that are necessary relates to consummate Purchaser’s or its Subsidiaries’ assets, properties or businesses (excluding the TransactionsBusiness, the Purchased Assets and assets of any Purchased Controlled Company), (A) would result in the sale, divestiture, disposition of or holding separate (through the establishment of a trust or otherwise) of assets, properties or businesses that generated, in the aggregate, more than $50,000,000 in revenues during the fiscal year immediately preceding the date of this Agreement, or (B) consists of any of the Regulatory Remedies described in clauses (ii) through (v) of this Section 5.1(c). Upon the reasonable request of Purchaser, Seller shall, and shall cause its Affiliates to, use reasonable best efforts to cooperate with the Purchaser and its Affiliates and its and their Representatives in order to facilitate and help effectuate any of the actions described in this Section 5.1(c) prior to the Outside Date, by (A) entering into customary, mutually acceptable non-disclosure and clean team agreements with potential buyers of assets of the Purchased Controlled Companies or Purchased Assets, (B) reasonably assisting Purchaser with the preparation of a confidential information memorandum and/or “teaser” to assist in marketing any such assets and (C) providing reasonable access to customary due diligence materials, including providing potential buyers and their Representatives with reasonable access to senior management of the MergerSeller and its Affiliates, participating in due diligence calls and taking any other actions as may be reasonably requested by Purchaser in connection with the marketing and sale of any such assets; provided that Seller shall not, and shall cause its Affiliates not to, take any such action (or agree to take any action) without the prior written consent of Purchaser. Notwithstanding anything Nothing in this Section 5.1 shall require Seller or Purchaser to effectuate, or agree to effectuate, any Regulatory Remedy unless such Regulatory Remedy is conditioned upon the contrary hereinClosing and only effective following the Closing. In addition, Purchaser shall oppose, through and including litigation on the merits (which, for the avoidance of doubt, shall not include any appeal of any decree, order or Judgment following the imposition of a preliminary injunction (or its equivalent) by any Governmental Entity), any claim asserted in court or other forum by any Governmental Entity in order to avoid entry of, or to have vacated or terminated, any decree, order or Judgment (whether temporary, preliminary or permanent) in favor of any objection by any Governmental Entity with authority under any Antitrust Law that would restrain or prevent the Closing or the consummation of the Related Transaction by the Outside Date.
(d) Any provision in this Agreement notwithstanding, none of ParentSeller, the Company other Seller Entities or any of their respective Subsidiaries Affiliates (including, prior to the Closing, the Purchased Companies) shall under any circumstance be required to pay or commit to pay any consent amount or incur any obligation in favor of or offer or grant any accommodation (financial or otherwise, regardless of any provision to the contrary in the underlying Contract, including any requirements for the securing or posting of any bonds, letters of credit or similar instruments, or the furnishing of any guarantees) to any Person to obtain any Approval. Except as otherwise provided in this Agreement, including Section 8.2(b) and Section 10.6, none of Purchaser or any of its Affiliates, on the one hand, or Seller, the other similar feeSeller Entities or any of their respective Affiliates (including, payment or considerationprior to the Closing, make any other concession or provide any additional security (including a guarantythe Purchased Companies), or amend or modify on the other hand, shall have any ContractLiability whatsoever to the other party based on the failure, in and of itself, to obtain such third party consents (exceptany Approvals that may be required in connection with the Transaction, the other transactions contemplated by this Agreement or the Related Transaction or because of the termination of any Contract or Permit as a result thereof. Purchaser acknowledges that no representation, warranty or covenant of Seller contained in the case of the CompanyTransaction Documents shall be breached or deemed breached, if requested by Parent and either no condition shall be deemed not satisfied, based solely on (i) reimbursed or indemnified for by Parent or the failure to obtain any Approval, (ii) subject any such termination of a Contract or Permit or (iii) any Action commenced or threatened by or on behalf of any Person arising out of or relating to the occurrence of the Closing).failure to obtain any such Approval or
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (Johnson Controls International PLC)
Efforts. (a) Subject to the terms and conditions of this Agreement, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall each party will use 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 each other in doing, all things necessary, proper or advisable under applicable Law to consummate and make effective the TransactionsManagement Business Sale and the other transactions contemplated by this Agreement, including the Merger, as soon as practicable after the date hereof (and in any event by the Outside Date), including (i) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably practicable and advisable after the date hereof, all documentation to effect all necessary applicationsfilings, notices, petitions, filings statements, registrations, submissions of information, applications and other documents and to obtain as promptly as reasonably practicable (and in any event by the Outside Date) 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 Transactions, including Management Business Sale and the Merger, and (ii) taking all steps as may be necessary, subject to the limitations in other transactions contemplated by this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvalsAgreement. In furtherance and not in limitation of the foregoing, each Party, as applicable, party hereto agrees (i)(x) to (x) make, or cause to be made, an make appropriate filing filings of a Notification and Report Form pursuant to the HSR Act as promptly as practicable after the date hereof and (y) to make any other filings pursuant to applicable Regulatory Laws with respect to the Transactions transactions contemplated hereby as promptly as reasonably practicablepracticable after the date hereof, (ii) to use reasonable best efforts to cooperate with each other in (A) determining which filings are required to be made prior to the Closing with, and which consents, approvals, permits or authorizations are required to be obtained prior to the Closing from, Governmental Authorities or any other Person in any event within fifteen (15) Business Days after connection with the execution and delivery of this Agreement (unless a later date is mutually agreed between the Parties)Agreement, and the consummation of the 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 and advisable any additional information and documentary materials material that may be requested pursuant to the HSR Act or any other applicable Regulatory Laws and (v) to use reasonable best efforts to take or cause to be taken all other actions necessary necessary, proper or advisable to obtain applicable clearances, consents, authorizations, approvals or waivers and to cause the expiration or termination of the applicable waiting period periods with respect to the approval of the Management Business Sale under the HSR Act and any other applicable Regulatory Laws as soon promptly as reasonably practicable (and in any event by no later than the Outside End Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing).
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Sunrise Senior Living Inc)
Efforts. (a) Subject to Each of the terms Parties shall, and conditions of this Agreementshall cause its Subsidiaries to, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use its reasonable best efforts to taketake promptly, or cause to be taken, all actions actions, and to dodo promptly, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate the Transactions, including the Merger, as soon as practicable after the date hereof (and in any event by the Outside Date), including (i) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably practicable and advisable after the date hereof, all documentation to effect obtain all necessary applicationsactions or nonactions, notices, petitions, filings and other documents and to obtain as promptly as reasonably practicable (and in any event by the Outside Date) all waiting period expirations or terminationswaivers, 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 Transactions, including the Merger, and (ii) taking all steps expirations or terminations of waiting periods as may be necessaryrequired to consummate and make effective, subject and to satisfy all conditions to, in the limitations in most expeditious manner practicable, the transactions contemplated by this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. Agreement.
(b) In furtherance and not in limitation of the foregoingcovenants of the Parties contained in this Article 5, each Partyof Parent and the Company shall use its reasonable best efforts to seek to, as applicablesoon as reasonably practicable after the date hereof:
(i) obtain all necessary permits, agrees waivers, consents, approvals and actions or nonactions from Governmental Entities necessary to (x) makeconsummate the transactions contemplated by this Agreement, or cause to be made, an appropriate filing of a including all required Notification and Report Form pursuant to Forms under the HSR Act with respect to the Transactions as promptly as reasonably practicableMerger. Parent shall, and at its own expense, pay all fees incurred in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to connection with filings made under the HSR Act and to take applicable regulations, including legal fees, fees of economists, and fees of marketing experts;
(ii) furnish all other actions necessary information in connection with the approvals of or filings with any Governmental Entity and will promptly cooperate with and furnish information in connection with any requirements imposed upon Parent or any of its Affiliates in connection with this Agreement and the transactions contemplated hereby;
(iii) request early termination of any applicable waiting period under the HSR Act, and use their reasonable best efforts to cause the expiration or termination of the any applicable waiting period periods under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable“HSR Clearance”), and shall supply to supply the Antitrust Division of the United States Department of Justice or the United States Federal Trade Commission as promptly as reasonably practicable and advisable any additional information and documentary materials or documents that may be requested under any Regulatory Laws. Notwithstanding anything to requested;
(iv) avoid the contrary set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent toentry of, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other orderOrder, whether temporary, preliminary or permanent, that is would restrain, prevent or delay the Closing on or before the End Date; and
(v) obtain all necessary consents or waivers that are or may be required by any third parties, including any consents or waivers that Parent deems necessary in effect and that prohibits, prevents or restricts consummation connection with any reorganization of the Transactions, including Surviving Corporation’s assets or liabilities that might occur contemporaneously with the MergerClosing;
(vi) provide such other assistance as Parent may deem necessary in connection with the anticipated transition of the Company; and
(vii) execute and deliver of any additional instruments necessary and acceptable to Parent’s or the Company’s respective counsel to consummate the Merger and to fully carry out the purposes of this Agreement.
(bc) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) shall cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with the making of all filings, notifications, communications, submissions and taking all other material actions pursuant to this Section 5.8, and, subject to applicable legal limitations and the instructions of any filing or submission Governmental Entity, Parent and in connection the Company shall keep each other apprised on a current basis of the status of matters relating to the completion of the transactions contemplated thereby, including promptly furnishing the other with any investigation copies of notices or other inquirymaterial communications received by Parent and the Company, including as the case may be, or any proceeding initiated by a private partyof their respective Subsidiaries or Affiliates, including by allowing from any third party and/or any Governmental Entity with respect to such transactions. Subject to applicable Law relating to the exchange of information, Parent and the Company shall permit counsel for the other Party to have a reasonable opportunity to review in advance advance, and comment on drafts of filings and submissions and reasonably considering consider in good faith comments the views of the other PartyParty in connection with, (ii) promptly inform the other Party of any proposed notifications or filings and any written communications or submissions, and with respect to any such notification, filing, written communication received by such Party fromor submission, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other documents submitted therewith to any Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (Ai) to remove references concerning the valuation of the businesses of Parent, Company or any of their respective Subsidiariesproposals from third parties with respect thereto, (Bii) as necessary to comply with contractual arrangements agreements and (Ciii) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of . Parent and the Company mayagree not to participate in any substantive meeting or discussion, as each deems advisable and necessaryeither in person or by telephone, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate in connection with the Transactionsproposed transactions unless it consults with the other Party in advance and, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date extent not prohibited by such Governmental Entity, gives the other Party the opportunity to attend and (y) in doing so it must act reasonably and must consider in good faith the views of the Companyparticipate.
(cd) In connection with and without limiting the foregoingExcept as otherwise permitted under this Agreement, in the event that neither Parent requests the Company to do so, the nor Company shall give (and shall cause its Subsidiaries and Affiliates not to) take or agree to take any notices action that would be reasonably likely to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company prevent or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of materially delay the Closing).
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, Parent each of the parties to this Agreement shall 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 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 Subsidiaries) Approvals, from Governmental Entities and the Company (making of all necessary registrations and filings and the Company Subsidiariestaking 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, (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 to consummate the transactions contemplated by this Agreement; provided, however, that in no event shall Parent, Company, or any of their respective Subsidiaries or Joint Ventures be required to pay prior to the Effective Time any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any Contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the parties shall (i) promptly, but in no event later than ten Business Days after the date hereof, file any and all required notification and report forms under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the “HSR Act”), and file as promptly as practicable any other required filings and/or notifications under other applicable Antitrust Laws, 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, (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 or by such Governmental Entity 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, all other things necessary, proper or advisable under applicable Law to consummate and make effective the Transactionstransactions contemplated by this Agreement. Company and Parent shall be equally responsible for all filing fees under the HSR Act, including the Merger, as soon as practicable after the date hereof any other Antitrust Laws and/or any such other laws or regulations applicable to any of Parent or its Affiliates. Company and Parent shall not (and in shall cause their Subsidiaries and Affiliates not to) agree to stay, toll or extend any event 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 or if any Action is instituted by any Governmental Entity or any private party challenging any of the Outside Datetransactions contemplated hereby as violative of any Antitrust Law, each of Parent and Company shall (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 (i) preparing and filing by defending any Action brought by any Governmental Entity in order to avoid entry of, or otherwise providingto have vacated, overturned or terminated, including by appeal if necessary, in consultation order to resolve any such objections or challenge as such Governmental Entity or private party may have to such transactions under such Antitrust Law so as to permit consummation of the transactions contemplated by this Agreement.
(d) The parties shall cooperate and consult with each other in connection with the other Party and as promptly as reasonably practicable and advisable after the date hereof, making of all documentation to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as reasonably practicable (and in any event by the Outside Date) all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvalsfilings, permits notifications, communications, submissions, and authorizations necessary any other 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 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 advisable to be obtained 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 in order to consummate the Transactions, including the Merger, and (ii) taking all steps as may be necessary, subject to the limitations in this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation of the foregoing, each Party, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to such transactions. Subject to applicable Law relating to the Transactions as promptly as reasonably practicableexchange of information, Company, on the one hand, and in any event within fifteen (15) Business Days after Parent, on the execution of this Agreement (unless a later date is mutually agreed between the Parties)other hand, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant shall to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as reasonably extent practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations counsel for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a party reasonable opportunity to review in advance advance, and comment on drafts of filings and submissions and reasonably considering consider in good faith comments the views of the other Partyparty in connection with, (ii) promptly inform the other Party of any proposed notifications or filings and any written communications or submissions, and with respect to any such notification, filing, written communication received by such Party fromor submission, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other documents submitted therewith to any Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (Ax) to remove references concerning the valuation of Parent, the businesses of Company or any of their respective and its Subsidiaries, or proposals from third parties with respect thereto, (By) as necessary to comply with contractual arrangements and (C) as necessary or appropriate to address reasonable privilege concerns or reasonable confidentiality concerns; provided, further, that each of concerns relating to proprietary or commercially sensitive information regarding Parent and the Company mayits operations, as each deems advisable provided that Parent shall contemporaneously provide to Company’s counsel unredacted copies of any materials redacted pursuant to this subclause (y), and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b(z) as “Outside Counsel Only Material” which such material necessary or appropriate to address reasonable privilege concerns or reasonable confidentiality concerns relating to proprietary or commercially sensitive information regarding Company and the information contained therein its operations, provided that Company shall be given only contemporaneously provide to the outside antitrust Parent’s counsel unredacted copies of any materials redacted pursuant to this subclause (z). Each of the recipient and will parties agrees not be disclosed to participate in any substantive meeting or discussion, either in person or by such outside counsel to employeestelephone, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate in connection with the Transactionstransactions contemplated by this Agreement unless it consults with the other parties in advance and, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date extent not prohibited or required otherwise by such Governmental Entity, gives the other party or if advisable the other parties’ outside counsel the opportunity to attend and (y) in doing so it must act reasonably and must consider in good faith the views of the Companyparticipate.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing).
Appears in 1 contract
Sources: Merger Agreement (Seadrill LTD)
Efforts. (a) Subject to the terms and conditions of this Agreement, Parent (each of the parties hereto shall cooperate with the other parties hereto and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their respective reasonable best efforts (unless, with respect to takeany action, or cause another standard of performance is expressly provided for herein) to be takenpromptly (i) consummate and make effective, all actions as promptly as reasonably practicable, and in any event prior to dothe Outside Date, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate the Transactions, including the Merger, as soon as practicable after the date hereof (and in any event by the Outside Date), including (i) preparing and filing or otherwise providing, in consultation with the other Party promptly and as promptly as reasonably practicable and advisable after the date hereof, fully all documentation necessary to effect all necessary applicationsfilings, notices, petitions, filings statements, registrations, submissions of information, applications and other documents and to documents, (ii) obtain as promptly as reasonably practicable (and in any event by the Outside Date) all waiting period expirations or terminationsapprovals, consents, clearancesregistrations, 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 Transactions, including the Merger, and (ii) taking all steps as may be necessary, subject to the limitations in this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and other confirmations from any Governmental Authority or third party necessary, proper or advisable to consummate the Transactions and (iii) execute and deliver any additional instruments necessary to consummate the Transactions, other than, in the case of each of clauses (i) through (iii), with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other documents, approvals, consents, registrations, permits, authorizations and other confirmations relating to Gaming Laws, Gaming Authorities or Required Gaming Approvals, which are addressed in Section 5.03(d) below. Notwithstanding anything to the contrary herein, prior to the Effective Time, no party hereto shall be required to, and the Company shall not without the consent of Parent, pay any consent or other similar fee, “profit-sharing” or other similar payment or other consideration in any form (including increased rent or other similar payment or commercial accommodation or agree to enter into any amendments, supplements or other modifications to (or waivers of) the existing terms of any Contract), or provide additional security (including a guaranty) or otherwise assume or incur or agree to assume or incur any liability, to obtain any consent or approval of any Person (other than any Governmental Authority) under any Contract.
(b) In furtherance and not in limitation of the foregoing, the Company and Parent shall each Party(i) take all action 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 applicablepromptly as practicable on the terms contemplated by this Agreement and otherwise lawfully minimize the effect of such Takeover Law on the Transactions.
(c) Notwithstanding anything to the contrary contained in this Agreement, agrees neither Parent nor its Affiliates shall be required (and the Company shall not agree to any of the following without the express written consent of Parent): (i) (A) to offer, agree or consent to sell, divest, lease, license, transfer, dispose of or otherwise encumber or hold separate (before or after the Closing) any assets, licenses, operations, rights, product lines, businesses or interests therein of Parent or any of its Affiliates (other than, after the Closing, the Company or any of its Subsidiaries), (B) to offer, agree or consent to terminate or amend any (x) makeexisting relationship, contractual right or obligation of Parent or any of its Affiliates (other than, after the Closing, the | Company or any of its Subsidiaries) or (y) venture or other similar arrangement of Parent or any of its Affiliates (other than, after the Closing, the Company or any of its Subsidiaries), or (C) to offer, agree or consent to any impairment of, or restriction on, Parent or any of its Affiliates’ ability to own or operate any assets, licenses, operations, rights, product lines, businesses or interests (other than, after the Closing, any of the assets, licenses, operations, rights, product lines, businesses or interests of the Company or any of its Subsidiaries); or (ii) to commit to or effect any action that is not conditioned upon consummation of the Merger.
(d) Parent and Merger Sub shall, and shall (i) cause any Person employed by Parent or its Affiliates and (ii) use reasonable best efforts to cause any Person holding at least five (5)-percent of the outstanding capital stock of Parent, in each case that are reasonably necessary to obtain the Required Gaming Approvals to, as soon as reasonably practicable following the date of this Agreement, file, or cause to be madefiled, an appropriate with the applicable Gaming Authorities all applications for licensure, submissions for suitability review and other appropriate, necessary and requested documentation in connection with all Required Gaming Approvals (it being understood that any such Gaming Authority’s failure to deem any such filing complete shall not, in and of itself, constitute a Notification and Report Form failure by Parent or Merger Sub to have satisfied its filing obligations pursuant to the HSR Act with respect this sentence). The parties hereto shall, and shall cause each of their respective Affiliates, as applicable, to use reasonable best efforts to comply with, pursue, and respond to any and all subsequent regulatory requests related to the Transactions as promptly as reasonably practicableRequired Gaming Approvals, and in any event within fifteen (15) Business Days after use reasonable best efforts to cause the execution of this Agreement (unless a later date is mutually agreed between the Parties)receipt of, and to supply eliminate any Restraint in respect of, the Required Gaming Approvals so as to obtain such Required Gaming Approvals as promptly as reasonably practicable following the date of this Agreement (it being understood that any failure to obtain any Required Gaming Approval shall not, in and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event itself, constitute a failure by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, the Company to have satisfied its obligations pursuant to this sentence). Parent and the Company may notshall use their respective reasonable best efforts to keep the other party reasonably informed of the status of any substantive communications with, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, substantive inquiries or offer or agree to, take or commit to take any action with respect torequests for additional information from, any requirement, condition, limitation, understanding, agreement Gaming Authorities regarding the Required Gaming Approvals received by Parent or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries and Affiliates; provided, that nothing in this Section 5.03(d) shall require Parent or Merger Sub to cause the personal applications, personal application-related materials, or communications relating to such personal applications (including formal and informal interviews by the Gaming Authority relating to such personal applications) of all any individual representative of Parent or Merger Sub (or their respective Affiliates) to be shared with the Company. Parent shall lead, control and direct the process by which the parties hereto seek to obtain the Required Gaming Approvals, including by making final determinations related to the review or investigation of the Transactions by the Gaming Authorities (including substantive analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals to be made or submitted by or on behalf of any party hereto or any portion of their respective businesses as presently conducted and as currently proposed other Persons reasonably necessary to be conducted, Parent (and obtain the Parent SubsidiariesRequired Gaming Approvals) relating to any Required Gaming Approvals) and attending all meetings and discussions with the Company Gaming Authorities except to the extent that the Gaming Authorities may request to communicate exclusively with the Company; provided, that (i) Parent shall, in good faith, take into consideration the Company’s views, suggestions and comments regarding such strategy and process and (ii) Parent shall propose the Company Subsidiaries) shall structure and use their its reasonable best efforts to defend take all other actions as Parent reasonably determines is necessary to obtain the Required Gaming Approvals. The Company shall, and shall cause its Subsidiaries to, supply to Parent as promptly as practicable any additional information and documentary material relating to the Company, its Subsidiaries or contestany applicable individuals | that may be (or is reasonably expected to be) requested by any Gaming Authority, including through litigation and use reasonable best efforts to furnish to Parent such information and reasonable assistance as Parent may request in connection with each of (i) the preparation of any required applications, notices, registrations and requests as may be required or advisable to be filed with any Gaming Authority and (ii) Parent’s efforts to obtain the Required Gaming Approvals.
(e) If during the period between the date hereof and the Effective Time, the parties hereto become aware that a consent, approval, authorization or other meansaction by, or filing with or notification to, any objection Gaming Authority on the part of, or with respect to, the Company, Parent, Merger Sub, or Actions challengingany of their respective Subsidiaries and Affiliates is required in connection with the execution, delivery and performance of this Agreement or the consummation of the Transactions, 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 which was not otherwise listed on Section 5.03(d) of the TransactionsCompany Disclosure Letter (an “Additional Required Gaming Approval”), including such party hereto shall give prompt notice of such requirement to the Mergerother parties hereto, and, upon the written consent of all parties hereto (such consent not to be unreasonably withheld, conditioned or delayed), each such Additional Required Gaming Approval shall be deemed a Required Gaming Approval solely for purposes of Section 5.03.
(bf) Each of If requested in writing by Parent and (such request to set forth the specific Gaming Approval(s) to which the request relates) the Company shall, and shall cause its Subsidiaries to, take all such actions as are reasonably necessary (which, for the avoidance of doubt, shall not include any actions that would prevent the Company’s ability to operate in connection with and without limiting the efforts referenced in Section 6.2(aordinary course of business prior to Closing) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or surrender any other Regulatory Law, (iGaming Approval(s) cooperate in all respects, including held by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective its Subsidiaries and set forth in such request (and cease business in each state or jurisdiction to which such Gaming Approval relates); provided, that such surrender (and cessation of business) shall only be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed to occur at such time the conditions to the Closing set forth in Article VI shall have been satisfied or indemnified for by waived or shall then be capable of being satisfied or waived if the Closing were to take place immediately following such surrender and cessation of business (which Parent or shall confirm in writing in connection with its request), and (ii) subject to be effective immediately prior to, and conditioned upon, the occurrence Closing. If Parent requests the surrender of any such Gaming Approval(s), and any such Gaming Approval is a Required Gaming Approval set forth in Section 5.03(d) of the Closing)Company Disclosure Letter, then for the purposes of Section 6.02(e) such Required Gaming Approval will, upon the effectiveness of such surrender (and cessation of business) in accordance with this Section 5.03, be deemed to have been obtained.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of this Agreement, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate the Transactions, including the Merger, as soon as practicable after the date hereof (and in any event by the Outside Date), including (i) preparing The Company shall, and filing shall cause each of its Subsidiaries, officers, employees, agents and representatives to, take all actions as may be requested by the Board or otherwise providing, in consultation with the other Party and SL Stockholders to give effect to a Liquidity Event as promptly as reasonably practicable and advisable after to satisfy the date hereofobligations under this Section 4.7, all documentation to effect all necessary applicationsincluding:
(A) the engagement by the Company or one of its Subsidiaries, noticespromptly, petitionsof such financial advisors, filings consultants, accountants or attorneys and other documents and to obtain as promptly as reasonably practicable (and in any event by the Outside Date) 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 Transactions, including the Merger, and (ii) taking all steps advisors as may be necessary, subject to determined by the limitations in this Section 6.2, to obtain all such waiting period expirations Board or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders the SL Stockholders (and approvals. In furtherance and not in limitation each of the foregoing, each Party, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicableStockholders shall waive, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and cause their Affiliates to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect towaive, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose conflicts of any assets, business or portion interest resulting from the engagement of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested Persons by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective its Subsidiaries);
(B) entering into confidentiality agreements with potential transferees;
(C) participating in and otherwise facilitating any due diligence process;
(D) in the event of the pursuit of a Change of Control, (1) preparing a customary confidential information memorandum and other marketing materials for any such sales process, (2) making members of the Company’s and its Subsidiaries’ senior management and other key employees available to meet with prospective transferees and participating in and otherwise cooperating and facilitating any due diligence process requested by prospective transferees, including setting up an online data room, (3) providing for prospective transferees’ reasonable inspection of the Company’s and its Subsidiaries’ offices and facilities and reasonable access to the Company’s and its Subsidiaries financial information and other books and records and (4) otherwise cooperating in any due diligence review of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contestits Subsidiaries by prospective transferees, including through litigation facilitating the cooperation of the Company’s counsel and independent public accountants with any such due diligence review; and
(E) in the event of the pursuit of a Public Company Event, (1) preparing, commenting on, revising or modifying the registration statement, prospectus, investor and/or rating agency materials, SEC correspondence and any other meansnecessary documentation, including any amendments to any of the foregoing, in each case, as may be directed by the Board, (2) engaging and entering into appropriate documentation with one or more managing underwriters as may be determined by the SL Stockholders, and implementing all necessary corporate governance procedures and policies, including those related to whistleblowers, affiliate transactions, insider trading, Regulation FD, any objection tolisting or FINRA code of business conduct or ethics, or Actions challenging(3) engaging a “big four” accounting firm and (4) participating in such number of rating agency meetings, the consummation of the Transactions, road shows 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, including the Mergerinvestor presentations as may be necessary.
(bii) Each of Parent and the Company shall, Stockholders agrees to promptly take all actions as may be reasonably requested by the Board or the SL Stockholders in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) Liquidity Event at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views expense of the Company.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing).
Appears in 1 contract
Efforts. (a) Subject Each of the Company, Parent, Merger Sub I, and Merger Sub II shall use its respective reasonable best efforts to the terms and conditions of this Agreement, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall each of them will cause its respective Subsidiaries to use reasonable best efforts to 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, all things necessary, proper or advisable under applicable Law or otherwise to consummate and make effective the TransactionsMergers, including the MergerParent Common Share Issuance and the other transactions contemplated by this Agreement as promptly as practicable, (ii) take all such actions (if any) as soon 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 date hereof 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 I, Merger Sub II or the Company, or any of their respective Subsidiaries, to effect the Closing as promptly as practicable, and in any event by not later than 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 Mergers, and (B) from any Third Party (other than a Governmental Entity) any consents or notices that are required to be obtained or made by Parent, Merger Sub I, Merger Sub II 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), including only to the extent that Parent, Merger Sub I, Merger Sub II and the Company reasonably determine, after consultation and cooperation with one another, that such consent or notice should be obtained or made (iit being understood that the failure to receive or make any such consents or notices will not be a condition precedent to Parent’s, M▇▇▇▇▇ Sub I’s, M▇▇▇▇▇ Sub II’s or the Company’s obligations to consummate the transactions contemplated hereby), (iv) preparing cause the satisfaction of all conditions within its control set forth in Article VI, and filing or otherwise providing, in consultation with the other Party (v) prepare and file as promptly as reasonably practicable and advisable after the date hereof, all documentation to effect all necessary applications, notices, petitions, filings filings, ruling requests, and other documents and necessary to obtain as promptly as reasonably practicable (and in any event by the Outside Date) all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits approvals and authorizations necessary or advisable to be obtained from any third party and/or any Governmental Entity other deliverables set forth in order to consummate the Transactions, including the Mergerclauses (A) and (B) above, and (ii) taking take all reasonable steps as may be necessary, subject to the limitations in this Section 6.2, necessary to obtain all such consents, approvals and other deliverables; provided, however, that, in the case of clause (B), in no event will Parent, Merger Sub I, Merger Sub II or the Company, or any of their respective Subsidiaries be required to pay prior to the First Effective Time any fee, penalty or other consideration to any such Third Party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any Contract.
(b) Notwithstanding anything to the contrary in this Agreement, (i) Parent shall, after considering in good faith the views and comments of the Company (and its outside legal counsel) and acting in good faith, exercise principal responsibility to direct and control all aspects of the Parties’ efforts to gain regulatory clearance before any Governmental Entity of the transactions contemplated hereby pursuant to any Competition Law; provided, however, that Parent shall not enter into any agreement with a Governmental Entity to extend any waiting period expirations under the Competition Laws or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and to delay or not in limitation to consummate the transactions contemplated by this Agreement without the prior written consent of the foregoingCompany, except that Parent may once withdraw and refile its “Notification and Report Form” under the HSR Act as provided by 16 C.F.R. 803.12, (ii) nothing in this Agreement shall require the Company, Parent, Merger Sub I or Merger Sub II to defend through litigation any claim asserted in any court or other governmental body with respect to the Mergers by the United States Federal Trade Commission, the United States Department of Justice or any other applicable Governmental Entity, (iii) none of the Company, Parent, Merger Sub I or Merger Sub II and none of their respective affiliates shall be required to offer, negotiate, commit to, effect, enter into or take any action, agreement, condition, commitment or remedy of any kind, including any remedy that would require the Company, Parent, Merger Sub I or Merger Sub II or any of their respective affiliates to sell, divest, lease, license, transfer, dispose of, or otherwise encumber, impair, limit or restrict any of their or their respective affiliates’ ownership, control, management or operation of assets or businesses (including for the avoidance of doubt, any equity or other interests) of any of Parent, Merger Sub I, Merger Sub II, the Merger I Surviving Corporation, the Merger II Surviving Company, any Parent Subsidiary, the Company or any Company Subsidiary, or any of their respective affiliates, and (iv) the Company shall not, and shall cause the Company Subsidiaries and their respective controlled affiliates not to, without the prior written consent of Parent, offer, negotiate, commit to, effect, enter into or take any action, agreement condition, commitment or remedy as described in Section 5.5(b)(iii).
(c) Without limiting the generality of anything contained in this Section 5.5, each PartyParty shall, as applicable, agrees (i) make with respect to (x) make, or cause to be made, the transactions contemplated hereby an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, practicable and advisable (and in any event within fifteen twenty (1520) Business Days after the execution date of this Agreement (unless a later date is otherwise mutually agreed between in writing by the Parties)), and to supply as promptly as reasonably practicable and advisable (ii) give the other Parties prompt notice of the making or commencement of any additional information and documentary materials that may be requested pursuant request, inquiry, investigation, action or Proceeding by or before any Governmental Entity with respect to the HSR Act and to take all other actions necessary to cause the expiration Mergers or termination any of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event other transactions contemplated by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none (iii) keep the other Parties notified as to the status of Parentany such request, Merger Sub inquiry, investigation, action or other Proceeding, (iv) promptly notify the other Parties of any oral or written communication to or from any Governmental Entity regarding the Mergers or any of their respective Subsidiaries shall be required tothe other transactions contemplated by this Agreement, and (v) promptly provide to the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose other Parties copies of any assetswritten communications received or provided by such Party, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all its Subsidiaries, from or to any portion of their respective businesses as presently conducted and as currently proposed Governmental Entity with respect to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act Mergers or any other Regulatory Lawtransactions contemplated by this Agreement, and (ivi) cooperate in all respects, including by furnishing to the other respond as promptly as practicable to any inquiries received from any Governmental Entity enforcing applicable Competition Laws for additional information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquirydocumentation material, including any proceeding initiated request for additional information or documentary material issued by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing).15 U.S.C.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of this Agreement, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) parties shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law Laws and regulations, domestic and foreign to consummate the Transactions, including the Merger, Transactions as soon promptly as practicable after the date hereof (and in any event by the Outside Date)practicable, including (i) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably practicable and advisable after the date hereof, with any Governmental Authority or other third party all documentation and to effect all necessary applicationsFilings, notices, petitions, filings and other documents (ii) obtaining and to obtain as promptly as reasonably practicable (and in any event by the Outside Date) maintaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations necessary or advisable Consents required to be obtained from any Governmental Authority or other third party and/or any Governmental Entity in order that are necessary, proper or advisable to consummate the Transactions, including merger clearance under the MergerEC Merger Regulation and the merger regulations, and (ii) taking all steps as may be necessary, subject to the limitations extent applicable, of the individual countries in this Section 6.2Europe, to obtain all Japan and any other country in which such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. clearance is required.
(b) In furtherance and not in limitation of the foregoing, each Partyof Seller Parties and Purchaser shall, as applicable(i) if required by applicable Law or regulation, agrees to (x) make, or cause to be made, make an appropriate filing Filing of a Notification and Report Form pursuant to the HSR Act and such Filings as are required under the EC Merger Regulation and in individual countries in Europe and in Japan with respect to the Transactions (including the acquisition of Purchaser Qualifying Securities by Seller Parties or any Seller Subsidiary) as promptly as reasonably practicable, practicable and in any event (x) with respect to Filings pursuant to the HSR Act, within ten Business Days of the Determination Date and (y) with respect to Filings under the EC Merger Regulation and in individual countries in Europe and in Japan, within fifteen (15) Business Days after of the execution of this Agreement (unless a later date is mutually agreed between the Parties)Determination Date, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials material that may be requested pursuant and to the HSR Act use, subject to Sections 7.01(c) and 7.01(d), its reasonable best efforts to take all other actions necessary necessary, proper or advisable to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as reasonably practicable and to obtain all such other Required Governmental Consents.
(c) Each of Purchaser, Seller Parties and the Company shall, in any event by connection with the Outside Dateefforts referenced in Sections 7.01(a) and (yb) make to obtain all Required Governmental Consents for the Transactions, use its reasonable best efforts to, subject to applicable Law: (i) cooperate in all respects with each of the other necessary parties hereto in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a third party (including sharing copies of any such filings under or submissions reasonably in advance of the filing or submission thereof); (ii) keep each of the other parties hereto informed of any applicable Regulatory Law as promptly as reasonably practicablecommunication received by any such party from, or, subject to compliance with the requirement to offer the other parties prior review of such communications, given by such party to any Governmental Authority, including the Federal Trade Commission (the "FTC"), and the Antitrust Division of the Department of Justice (the "DOJ"), and of any communication received or given in connection with any proceeding by a third party, in each case regarding any of the Transactions; and (iii) permit each of the other parties hereto to review in advance any communication intended to be given by it to, and consult with the other parties in advance of any meeting or conference with, the FTC, the DOJ or any such other Governmental Authority or, in connection with any proceeding by a third party, with any other Person, and to supply the extent requested by Purchaser or Seller Parties, and permitted by the FTC, the DOJ or such other applicable Governmental Authority or other Person, give the other parties the opportunity to attend and participate in such meetings and conferences; provided, however, that without the prior consent of Purchaser, with respect to the obtaining of Consents sought or Filings made in connection with Purchaser's acquisition of Seller Company Securities or the registration under the 1933 Act of Purchaser Qualifying Securities, or Seller Parties, with respect to any acquisition by Seller Parties of Purchaser Qualifying Securities, the Company shall not, and none of Purchaser or any Seller Party, as promptly applicable, shall, contact or communicate with (other than communications which are not material with respect to the obtaining of any such consent) any Governmental Authority with respect to the Transactions unless it has first provided the other parties with notice thereof and the right to review and reasonably comment upon any proposed communication or the opportunity to attend (including by teleconference) any discussions with such Governmental Authority, as applicable. Each of Purchaser, Seller Parties and the Company hereby agrees to reasonably practicable and advisable cooperate with the others in the making of any Filings under this Section 7.01(c), including the provision of any additional or supplementary information required or requested by the applicable Governmental Authority, including the European Commission, in connection with the obtaining of such Required Governmental Consent or the causing of the expiration or termination of any waiting periods under the HSR Act. Each of the Company and documentary materials Seller Parties will be given the opportunity to review such portions of the submissions to the European Commission which (A) reference or are otherwise relevant to Seller Parties or the Company, as applicable, and its consummation of the Transactions and (B) are not of a confidential or proprietary nature to Purchaser, prior to the filing or submission of the same; it being understood that may be requested under any Regulatory Lawsif Seller Parties or the Company, as applicable, intends to comment, it will do so promptly. Notwithstanding anything contained in Section 7.04, this Agreement and the contents hereof may be provided to the contrary set forth European Commission (and, if required by Law, made publicly available).
(d) In furtherance and not in this Agreementlimitation of the covenants of the parties contained in Sections 7.01(a), none of Parent(b) and (c), Merger Sub if any objections are asserted with respect to the Transactions under the HSR Act, or if any suit is instituted (or threatened to be instituted) by the FTC, the DOJ or any other Governmental Authority or any third party challenging any of their respective Subsidiaries shall be required tothe Transactions, or which would otherwise prohibit or materially impair or materially delay the consummation of the Transactions, each of Purchaser, Seller Parties and the Company may notshall use its reasonable best efforts to resolve any such objections or suits so as to permit consummation of the Transactions. In furtherance of the foregoing, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit Purchaser agrees to take any and all action with respect tonecessary to resolve such objections or suits, any requirement, condition, limitation, understanding, agreement or order including agreeing to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of or conduct its business in a manner which would resolve such objections or suits or permitting the sale, holding separate or other disposition of, any of its assets or the assets of its Subsidiaries or the conducting of its business in a manner which would resolve such objections or suits; provided, however, that if Liberty is Purchaser, nothing in this Agreement shall require Purchaser or any of Purchaser's Subsidiaries or Affiliates to take any action requiring, or enter into any settlement, undertaking, consent decree, stipulation or other agreement with a Governmental Authority that requires, Purchaser to (i) hold separate (including by establishing a trust or otherwise) or sell or otherwise dispose of any assets, business businesses or portion interests of business of the Company, the Surviving Company, Parent, Merger Sub Purchaser or any Subsidiary of its Subsidiaries having a fair market value in excess of 5% of Purchaser's Market Capitalization or (ii) if Liberty is Purchaser, (x) hold separate (including by establishing a trust or otherwise) or sell or otherwise dispose of any shares (or any interests in any shares) of InterActiveCorp (f/k/a USA Interactive) it owns, holds or has the foregoing right to acquire or (By) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent cause InterActiveCorp to or offer or agree to, or otherwise take any action with respect toto its interests in, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries operation of, its electronic retailing business.
(e) Subject to the obligations under and limitations of Section 7.01(d), in the event the Closing occurs. Further, if that any Action, including any administrative or judicial action or proceeding by a private party, is instituted (or threatenedthreatened to be instituted) by a Governmental Authority or third party challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Mergereach of Purchaser, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) Seller Parties and the Company (shall cooperate in all respects with each other and the Company Subsidiaries) shall use their its respective reasonable best efforts to defend defend, contest and resist any such action or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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. For purposes of this Section 7.01, including the Mergerterm "Transactions" will be deemed to include the purchase of the Defaulting Purchaser's Company Securities by Seller Parties as contemplated by Section 10.02(b) or (d), and as a result, if Seller Parties so elect, the parties will, concurrently with or promptly following the corresponding Filing made under this Section 7.01 and in addition to the Required Governmental Consents being sought and Filings made with respect to Purchaser's acquisition of Seller Company Securities, also seek to obtain all Governmental Consents and make all Filings required to be made to consummate Seller Parties' acquisition of the Defaulting Purchaser's Company Securities pursuant to Section 10.02(b) or (d).
(bf) Each of Parent The Company and Seller Parties acknowledge and agree that Purchaser will lead the Company shall, in connection with and without limiting process relating to obtaining the efforts referenced in Section 6.2(a) to obtain all waiting period expirations expiration or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments termination of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any and the other applicable Regulatory Law and (ii) any decision to enter intoRequired Governmental Consents, and the contents ofPurchaser will, any agreement (including a timing agreement) following consultation with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, Seller Parties and the Company shall useas to material regulatory matters, have primary responsibility regarding the approach to obtaining such expiration or termination and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing)Required Governmental Consents.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of this Agreement, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) Parent shall 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 reasonably necessary under applicable Applicable Law to consummate the Transactions, including the Merger, as soon as practicable after the date hereof (and in any event by the Outside Date), including (i) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably practicable and advisable after the date hereof, all documentation to effect obtaining of all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as reasonably practicable (and in any event by the Outside Date) all waiting period expirations or terminations, consents, clearancesactions, waivers, licensesconsents and approvals from Governmental Authorities, orders, registrations, approvals, permits and authorizations necessary the expiry or advisable to be obtained from early termination of any third party and/or any Governmental Entity in order to consummate the Transactions, including the Mergerapplicable waiting periods, and the making of all necessary registrations and filings (iiincluding filings with Governmental Authorities, if any) and the taking all of such commercially reasonable steps as may be necessary, subject to the limitations in this Section 6.2, reasonably necessary to obtain all such waiting period expirations an approval or terminationswaiver from, consentsor to avoid an action or proceeding by, clearancesany Governmental Authorities, waivers(ii) the delivery of required notices to, licensesand the obtaining of required consents or waivers from, registrations, permits, authorizations, orders Third Parties and approvals. (iii) the execution and delivery of any additional instruments reasonably necessary to consummate the Merger and to fully carry out the purposes of this Agreement.
(b) In furtherance and not in limitation of the foregoingundertakings pursuant to this Section 6.11, each Partyof Parent and the Company shall (i) prepare and file any notification and report forms and related material required under the HSR Act, and any additional filings or notifications and related material that are necessary, proper or advisable to permit consummation of the Transactions, as applicablepromptly as practicable (but in no event later than ten (10) Business Days from the date of this Agreement for the filing of any notification and report forms and related material required under the HSR Act) except by mutual consent confirmed in writing), agrees to (xii) make, provide or cause to be made, an appropriate filing of a Notification provided as promptly as practicable any information and Report Form pursuant to documentary material that may be requested by the DOJ or FTC under the HSR Act and (iii) use their reasonable best efforts to take such actions as are necessary or advisable to obtain expiration or termination of any applicable waiting period or other approval of consummation of the Transactions by the DOJ or FTC as promptly as practicable, including to cause to be lifted any restraint, injunction or other legal impediment to the Merger.
(c) Subject to Applicable Law relating to the exchange of information, the Company and Parent and their respective counsel shall (i) 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, (ii) promptly inform each other of any material communication (or other material correspondence or memoranda) received from, or given to, the DOJ or the FTC and (iii) promptly 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 Transactions as promptly as reasonably Transactions. The Company and Parent shall, to the extent practicable, provide the other party and its counsel with advance notice of and the opportunity to participate in any event within fifteen (15) Business Days after material discussion or meeting with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the execution of this Agreement (unless a later date is mutually agreed between Transactions. Neither Parent nor the Parties)Company shall commit to or agree with any Governmental Authority to stay, and to supply as promptly as reasonably practicable and advisable toll or extend any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the other. The Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) 6.11 as “Outside Antitrust Counsel Only Material.” which such material Notwithstanding anything to the contrary in this Section 6.11, materials provided to the other party or its counsel may be redacted to remove references concerning the valuation of the Company and the information contained therein Company Subsidiaries.
(d) Parent shall be given only have, except where prohibited by Applicable Law, responsibility for determining the strategy for dealing with any Governmental Authority regarding Applicable Law relating 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 on the one hand or the Company on the other) or its legal counselmatters. Notwithstanding anything Nothing in this Agreement to the contrary, shall obligate Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act Merger Sub or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time Subsidiary of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contractsto, and the Company shall use, not and shall cause each Company Subsidiary to not, agree to limit in any manner whatsoever (i) any rights of ownership of any securities (including the Shares), or to divest, dispose of or hold separate any securities or all or a portion of their respective businesses, assets or properties or of the Company Subsidiaries business, assets or properties of their repective Subsidiaries, or (ii) the ability of such entities (A) to use, its reasonable best efforts conduct their respective businesses or own such assets or properties or to obtain any third party consents to any Contracts that are necessary to consummate conduct the Transactions, including businesses or own the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company properties or any assets of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (iiB) subject to control their respective businesses or operations or the occurrence businesses or operations of the Closing)their respective Subsidiaries.
Appears in 1 contract
Sources: Merger Agreement (Open Text Corp)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, Parent (and each of the Parent Subsidiaries) and the Company (and the Company Subsidiaries) parties hereto shall use 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 Laws to consummate and make effective the Merger and the other Transactions, including (i) the 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 necessary consents, approvals or waivers from third parties, (iii) the execution and delivery of any additional instruments necessary to consummate the Transactions; provided, however, that in no event shall Parent, the Company, 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 or approval required for the consummation of the Transactions under any Contract or agreement.
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the Company, Parent and Merger Sub shall (i) promptly, but in no event later than five (5) 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 filings and/or notifications that are required to be filed under any other applicable Antitrust Laws as set forth in Section 6.6(b) of the Company Disclosure Letter to consummate the Transactions, including the Merger, as soon as practicable after the date hereof (and in any event by the Outside Date), including (i) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably 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 reasonably practicable (and in any event by the Outside Date) 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 Transactions, including the Merger, and (ii) taking all steps as may be necessary, subject to the limitations in this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation of the foregoing, each Party, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary use their reasonable best efforts to cause the expiration or termination of the any applicable waiting period periods under the HSR Act or obtain any other regulatory approvals under the Antitrust Laws as set forth in Section 6.6(b) of the Company Disclosure Letter (the “Required Regulatory Approvals”), (ii) use their reasonable best efforts to cooperate with each other in making all filings and timely obtaining Required Regulatory Approvals, (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the Transactions, including taking all such further action as may be necessary to resolve such objections, if any, as any Governmental Entity may assert under any Law (other than with respect to any Action by any stockholder related to this Agreement or the Transactions) with respect to the Transactions, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Transactions so as to enable the Closing to occur as soon as reasonably practicable possible (and in any event no later than the End Date), including (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the Outside Date) sale, divestiture or disposition of any assets, product lines or businesses of Parent or its Subsidiaries or Affiliates or of the Company or its Subsidiaries and (y) make all other necessary filings under otherwise taking or committing to take any applicable Regulatory Law 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) or Affiliates’ businesses, product lines or assets, in each case as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under required in order to avoid the entry of, or to effect the dissolution of, any Regulatory Laws. Notwithstanding anything to injunction, temporary restraining order or other Order in any suit or proceeding which would otherwise have the contrary set forth in this Agreementeffect of preventing or delaying the Closing; provided, none of Parent, Merger Sub or that neither the Company nor any of their respective its Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, or consent to, or offer or agree to, take to or commit to otherwise take any action with respect to, any requirement, condition, limitationunderstanding, agreement or Order of a Governmental Entity to sell, hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change the assets, product lines or business of the Company or any of its Subsidiaries, unless such requirement, condition, understanding, agreement or Order is binding on the Company only in the event that the Closing occurs. Except as otherwise permitted under this Agreement (including, for the avoidance of doubt, Section 6.1(b) of the Company Disclosure Letter), the Company, Parent and Merger Sub shall not (and shall cause their Subsidiaries and Affiliates not to) take or agree to take any action that would be reasonably likely to prevent or materially delay the Closing. The Company and Parent shall not (and shall cause their Subsidiaries and Affiliates not to) agree to stay, toll or extend any applicable waiting period under any Antitrust Law or enter into any agreement with any Governmental Entity to delay, or otherwise not to consummate as soon as practicable, the transactions contemplated by this Agreement, 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) The Company, Parent and Merger Sub shall cooperate and consult with each other in connection with the making of all registrations, filings, notifications, communications, submissions, and any other material actions pursuant to this Section 6.6, 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, including promptly furnishing the other with copies of notices or other material 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, and (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 unredacted copies of such materials to Company’s counsel. Each of the Company, Parent and Merger Sub agrees not to participate in any substantive meeting or discussion, either in person or by telephone, with any Governmental Entity in connection with the Transactions unless it consults with the other party in advance and, to the extent not prohibited or required otherwise by such Governmental Entity, gives the other party the opportunity to attend and participate.
(d) Notwithstanding anything to the contrary in this Agreement (i) in no case shall the Company, Parent or Merger Sub be obligated to (and the Company shall not, without the written consent of Parent, and in no event shall Parent or Merger Sub be deemed to have breached any representation, warranty, covenant or agreement for refusing to) become subject to, consent to or agree to, or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order to (A) sell, license, assign, transfer, divest, to hold separate or otherwise dispose of, or to conduct, restrict, operate, invest or otherwise change its respective assets or business (including those of its respective Affiliates) in any assetsmanner that, business either individually or portion in the aggregate, (A) materially adversely affects the financial condition, business, or the operations of business of (x) the CompanyCompany and its Subsidiaries, the Surviving Companyon a consolidated basis, Parent, Merger Sub or any Subsidiary of any of the foregoing (y) Parent and its Affiliates or (B) impose prohibits or materially limits the ownership, control or operation by (x) the Company and its Subsidiaries or (y) Parent and its Affiliates, of any restriction, requirement or limitation on the operation of the business or material portion of its or their respective businesses or assets, or compels the business of the Company, the Surviving Company, Parent, Merger Sub Company or Parent or any Subsidiary of its Affiliates to dispose of or hold separate any of the foregoing (unless, within such clause (B), such restriction, requirement its material businesses or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub assets or any Subsidiary of any of the foregoing or the Transactions)portion thereof; provided provided, that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to to, or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement agreement, or order Order so long as such requirement, condition, limitation, understanding, agreement agreement, or order Order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing).
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of this Agreement, Parent (and the Parent Subsidiaries) and each of the Company (and the Company Subsidiaries) Parent shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and assist and cooperate with the other in doing, all things necessary, proper or advisable under applicable Law or Order to consummate and make effective the TransactionsOffer, including the Merger, Merger and the other transactions contemplated by this Agreement as soon promptly as practicable after the date hereof (and in any event by no later than the Outside End Date), including (i) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably practicable and advisable after the date hereof, with any Governmental Authority or other Third Party all documentation to effect all necessary applicationsnecessary, proper or advisable filings, notices, petitions, filings statements, registrations, submissions of information, applications and other documents and to obtain as promptly as reasonably practicable (ii) obtaining and in any event by the Outside Date) maintaining all waiting period expirations or terminationsapprovals, consents, clearances, waivers, licenses, orders, registrations, approvalspermits, permits authorizations and authorizations necessary or advisable other confirmations required to be obtained from any third party and/or any Governmental Entity in order Authority or other Third Party that are necessary, proper or advisable to consummate and make effective the TransactionsOffer, including the Merger, Merger and the other transactions contemplated by this Agreement (ii) taking all steps as may be necessary, subject to the limitations in this Section 6.2, to obtain all whether or not such waiting period expirations or terminationsapprovals, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders authorizations and approvals. other confirmations are conditions to the consummation of the Merger pursuant to Article 9 or the Offer pursuant to Annex I).
(a) In furtherance and not in limitation of the foregoing, each Partyof Parent and the Company shall make, as applicablepromptly as reasonably practicable (and in any event within ten (10) Business Days of the date of this Agreement in the case of the following clause (i) (unless counsel to the Parties have previously agreed to extend such ten (10) Business Day period)), agrees to (xi) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicabletransactions contemplated by this Agreement, (ii) all necessary filings to obtain consents from the state regulators that are required in connection with the Offer and the Merger and (iii) all other registrations, declarations, notices and filings with Governmental Authorities that are required in any event within fifteen (15) Business Days after connection with the execution Offer and the Merger. Each of this Agreement (unless a later date is mutually agreed between the Parties), Company and Parent shall use its reasonable best efforts to supply as promptly as reasonably practicable and advisable any additional information and documentary materials material that may be requested pursuant to the HSR Act foregoing, and use its reasonable best efforts to take all other actions necessary to cause the expiration or termination of the applicable waiting period periods regarding the foregoing as soon as practicable.
(b) Except as prohibited by applicable Law or Order, each of Parent and the Company shall use (and shall causes its Subsidiaries to use) its reasonable best efforts to (A) cooperate in all respects with each other in connection with any filing or submission with a Governmental Authority in connection with the transactions contemplated by this Agreement and in connection with any investigation or other inquiry by or before a Governmental Authority relating to the transactions contemplated by this Agreement, including any proceeding initiated by a private party, (B) promptly inform the other Party of (and supply to the other Party) any communication received by such party from, or given by such party to, the Federal Trade Commission, the Antitrust Division of the Department of Justice, or any other Governmental Authority and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated by this Agreement, (C) consult with each other prior to taking any material position with respect to the filings under the HSR Act as soon as reasonably practicable or any other Competition Law in discussions with or filings to be submitted to any Governmental Authority, (D) 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 filings under the HSR Act or any other Competition Law, and (E) coordinate with the other in preparing and exchanging such information and promptly provide the other (and in its counsel) with copies of all filings, presentations or submissions (and a summary of any event oral presentations) made by such Party with any Governmental Authority relating to this Agreement or the Outside Date) and (y) make all transactions contemplated hereby under the HSR Act or any other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory LawsCompetition Law. Notwithstanding anything to the contrary set forth herein, Parent shall, on behalf of the parties, have the principal responsibility for devising and implementing the strategy for obtaining any clearances required under any Competition Law in connection with the transactions contemplated by this Agreement and shall take the lead in all meetings and communications with any Governmental Authority in connection with obtaining such clearances; provided, however, that Parent shall consult in advance with the Company and in good faith take the Company’s views into account regarding the overall strategic direction of any such approval process, as applicable, and consult with the Company prior to taking any material substantive positions, making dispositive motions or other material substantive filings or submissions or entering into any negotiations concerning such approvals, as applicable. 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 in a manner so as to preserve the applicable privilege.
(c) Unless prohibited by applicable Law or Order or by the applicable Governmental Authority, each of the Company and Parent shall (i) to the extent reasonably practicable, not participate in or attend any meeting, or engage in any conversation with any Governmental Authority in respect of the Offer or the Merger (including with respect to any of the actions referred to in Section 8.01(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 from participating or attending any such meeting or engaging in any such conversation, keep such non-participating Party apprised with respect thereto.
(d) Notwithstanding anything to the contrary contained in this AgreementSection 8.01, none of neither this Section 8.01, nor the “reasonable best efforts” standard shall require, or be construed to require, in order to obtain any required consent, clearance or approval from any Governmental Authority or otherwise, Parent, Merger Sub the Company or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent toAffiliates to take, or offer to take, any action with respect to (x) proposing, negotiating, committing to or agree toeffecting, take by consent decree, hold separate order, or commit otherwise, the sale, divestiture, license or disposition of any businesses, assets, equity interests, product lines or properties of Parent or the Company (or any of their respective Subsidiaries), (y) creating, terminating, or divesting relationships, ventures, contractual rights or obligations of the Company or Parent or their respective Subsidiaries or (z) otherwise taking or committing to take any action that would limit Parent’s freedom of action with respect to, or its ability to retain or hold, directly or indirectly, any requirementbusinesses, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business equity interests, product lines or portion properties of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company Parent or the Company Subsidiaries (including any of their respective Subsidiaries), in any such case as may be requested or required in order to obtain any approvals, consents, clearances, expirations or terminations of waiting periods, registrations, permits, authorizations or other confirmations requested or required directly or indirectly under any Competition Law, or to avoid the commencement of any action to prohibit the Offer, the Merger or the other transactions contemplated by this Agreement under any Competition Law to the extent such action would reasonably be expected to have, individually or in the event aggregate, a material adverse effect on the Closing occurs. Furtherbusiness, results of operations or financial condition of either Parent and its Subsidiaries or the Company and its Subsidiaries.
(e) In furtherance and not in limitation of the covenants of the parties contained in this Section 8.01, if any Actionadministrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatenedthreatened to be instituted) challenging the Offer, the Merger or seeking to restrainany other transaction contemplated by this Agreement as violative of any Competition Law, prohibit or place conditions on the consummation each of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend contest and resist any such action or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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 TransactionsOffer, including the Merger.
(b) Each of Parent Merger and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including transactions contemplated by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the CompanyAgreement.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing).
Appears in 1 contract
Sources: Merger Agreement (Geeknet, Inc)
Efforts. (a) Subject to the terms and conditions of this Agreementhereof, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) each party hereto shall use its commercially reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate the Transactions, including the Merger, as soon as practicable after the date hereof (and in any event by the Outside Date), including (i) preparing and filing or otherwise providing, in consultation with the other Party and transactions contemplated hereby as promptly as reasonably practicable practicable.
(b) The Company and advisable Parent will, within five (5) Business Days after the date hereof, all documentation to effect all necessary applications, notices, petitions, filings file with the Federal Trade Commission and other documents the Department of Justice the notification and to obtain as promptly as reasonably practicable (report forms required for the transactions contemplated hereby and in any event by the Outside Date) 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 Transactions, including the Merger, and (ii) taking all steps as supplemental information that may be necessary, subject to the limitations reasonably requested in this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation of the foregoing, each Party, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a Notification and Report Form connection therewith pursuant to the HSR Act, which notification and report forms and supplemental information will comply in all material respects with the requirements of the HSR Act with respect to and request early termination of the Transactions as promptly as reasonably practicablewaiting period contemplated by the HSR Act. The Company and a Parent will, and in any event within fifteen ten (1510) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties)hereof, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law or submissions as promptly as reasonably practicableare required to obtain all Foreign Governmental Approvals, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Lawsif any. Notwithstanding anything to the contrary set forth in For purposes of this Agreement, none of Parent, Merger Sub or “Foreign Governmental Approvals” means any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation foreign governmental authority set forth on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (BSchedule 5.4(b), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(b) Each of Parent and the Company shall, will promptly furnish to the other (i) all necessary information as the other may reasonably request in connection with and without limiting the efforts referenced in Section 6.2(a) preparation of any filing or submission pursuant to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, Foreign Governmental Approval and (iii) cooperate in copies of all respects, including by furnishing to written communications (and memoranda setting forth the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other substance of any oral communication) in connection with any filing Foreign Governmental Approval or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (or Department of Justice in connection with this Agreement. Each of Parent and the “FTC”) Company will consult with the other prior to any meetings, by telephone or in person, with the staff of the Federal Trade Commission, Department of Justice or any other Governmental Entity, by promptly providing copies to the other Party of any such written communicationsAuthority, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate will have the right to have a representative present at any competitively sensitive material provided such meeting. Parent shall pay all filing fees required with respect to the notification, report and other under this Section 6.2(b) as “Outside Counsel Only Material” which such material and the information contained therein shall be given only to the outside antitrust counsel requirements 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 on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Foreign Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the CompanyApprovals.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing).
Appears in 1 contract
Efforts. (a) Subject to Parent and each of the terms and conditions of this Agreement, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) Stockholders shall use reasonable best efforts to take, or cause to be taken, cooperate in all actions and to do, or cause to be done, respects in doing all things reasonably necessary, proper or advisable under applicable Law or otherwise to consummate the Transactions, including the Merger, as soon as practicable after the date hereof (and in any event by the Outside Date), including (i) preparing and filing or otherwise providingmake effective, in consultation with the other Party and as promptly as reasonably practicable and advisable after most expeditious manner practicable, the date hereof, all documentation to effect all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as reasonably practicable (and in any event by the Outside Date) 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 Transactions, including the Merger, and (ii) taking all steps as may be necessary, subject to the limitations in this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvalsStock Purchase. In furtherance and not in limitation of Without limiting the foregoing, each PartyParent, as applicableon the one hand, agrees to and the Stockholders, on the other hand, shall (xa) make, or cause to be made, an appropriate filing file with the FTC and the Antitrust Division of the DOJ a Notification and Report Form pursuant relating to this Agreement and the transactions contemplated hereby as required by the HSR Act with respect to within fourteen (14) calendar days following the Transactions as promptly as reasonably practicableexecution and delivery of this Agreement, and (b) file comparable pre-merger or post-merger notification filings, forms and submissions with any foreign Governmental Authority that are required by the other applicable Antitrust Laws in connection with the Stock Purchase. Each of Parent and the Stockholders shall (i) cooperate and coordinate with the other in the making of such filings; (ii) supply the other with any event within fifteen information that may be required in order to make such filings; (15iii) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that reasonably may be required or requested pursuant to by the HSR Act FTC, the DOJ or the Governmental Authorities of any other applicable jurisdiction in which any such filing is made under any other Antitrust Laws; and to (iv) take all other actions action reasonably necessary to cause the expiration or termination of the applicable waiting period periods under the HSR Act and any other Antitrust Laws applicable to the Merger as soon as practicable, and to obtain any required consents under any other Antitrust Laws applicable to the Stock Purchase as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding notwithstanding anything in this Agreement to the contrary, in no event shall Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act Merger Sub (or any of their respective Affiliates) be required to offer or agree to sell or otherwise dispose of, or hold separate, agree to conduct, license or otherwise limit the use of any of the assets, categories of asset or businesses or other Regulatory Law, including but not limited segments of the Company or Parent or either’s respective Subsidiaries or Affiliates or to directing and unilaterally determining (i) any decision agree to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision restriction or condition with respect thereto required or requested by a Governmental Authority, in each case to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, extent that (x) at the time of entry into any timing or similar agreement, the term thereof doing so would not reasonably be expected to extend beyond materially and adversely affect the operation of the business of the Company, Parent or either’s respective Subsidiaries or Affiliates. Each of Parent, on the one hand, and the Stockholders, on the other hand, shall promptly inform the other of any communication from any Governmental Authority regarding any of the transactions contemplated by this Agreement in connection with such time as would allow the parties sufficient time to consummate the Closing prior filings. If any party hereto or Affiliate thereof shall receive a request for additional information or documentary material from any Governmental Authority with respect to the Outside Date transactions contemplated by this Agreement pursuant to the HSR or any other Antitrust Laws applicable to the Stock Purchase with respect to which any such filings have been made, then such party shall make (or cause to be made), as soon as reasonably practicable and (y) after consultation with the other party, an appropriate response in doing so it must act reasonably compliance with such request. Subject to applicable Laws relating to the exchange of information, Parent and must the Stockholders shall have the right to review in advance, and to the extent practicable each will consult with the other on and consider in good faith the views of the other in connection with, all of the information relating to Parent or the Stockholders or the Company.
(c) In connection with and without limiting , as the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contractscase may be, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay Affiliates, that appears in any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty)filing made with, or amend or modify written materials submitted to, any Contract, to obtain such third party consents (exceptand/or any Governmental Authority in connection with the Stock Purchase. In exercising the foregoing rights, in the case each of the Company, if requested by Stockholders and Parent shall act reasonably and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing)as promptly as practicable.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, Parent (and each of the Parent Subsidiaries) and the Company (and the Company Subsidiaries) parties hereto shall use its 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 in doing, all things necessary, proper or advisable under applicable Law Laws to consummate and make effective the Transactions, including Merger and the Merger, as soon as practicable after the date hereof (and in any event other transactions contemplated by the Outside Date)this Agreement, including (i) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably practicable and advisable after the date hereof, all documentation to effect obtaining of all necessary applicationsactions or nonactions, notices, petitions, filings and other documents and to obtain as promptly as reasonably practicable (and in any event by the Outside Date) all waiting period expirations or terminationswaivers, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations expirations or terminations of waiting periods, from Governmental Entities and the making of all necessary or advisable to be obtained from any third party and/or any Governmental Entity in order to consummate registrations and filings and the Transactions, including the Merger, and (ii) taking of all steps as may be necessarynecessary to obtain an approval, subject clearance or waiver from, or to the limitations in this Section 6.2avoid an action or proceeding by, any Governmental Entity, (ii) using its commercially reasonable efforts to obtain all such waiting period expirations or terminations, necessary consents, clearancesapprovals or waivers from third parties, waivers(iii) subject to Section 7.5, licensesthe defending of any lawsuits or other legal proceedings, registrationswhether judicial or administrative, permitschallenging 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 to consummate the transactions contemplated by this Agreement; provided, authorizationshowever, orders that in no event shall the Company, its Subsidiary, Parent or Merger Sub be required to pay any fee, penalty or other consideration to any third party for any consent or approval required for the consummation of the transactions contemplated by this Agreement under any contract or agreement.
(b) Subject to the terms and approvals. In furtherance conditions herein provided and not in limitation of without limiting the foregoing, each Partythe Company, as applicableParent and Merger Sub shall (i) promptly, agrees to (x) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, and but in any no event within later than fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties)hereof, file any and to supply as promptly as reasonably practicable all required notification and advisable any additional information and documentary materials that may be requested pursuant to report forms under the HSR Act with respect to the Merger and to take all the other actions necessary transactions contemplated by this Agreement, and use their commercially reasonable efforts to cause the expiration or termination of the any applicable waiting period periods under the HSR Act Act, (ii) use their commercially reasonable efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers, clearances, approvals, and expirations or terminations of waiting periods are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) promptly making all such filings and timely using their commercially reasonable efforts to obtain all such consents, permits, authorizations or approvals, (iii) supply to any Governmental Entity as promptly as practicable any additional information or documents that may be requested pursuant to any Law or by such Governmental Entity and (iv) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby, including taking all further action 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 (other than with respect to any stockholder litigation or claim related to this Agreement, the Merger or the other transactions contemplated by this Agreement) with respect to the transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Merger so as to enable the Closing to occur as soon as reasonably practicable possible (and in any event no later than the Termination Date), including (x) proposing, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the Outside Datesale, divestiture or disposition of any assets or businesses of Parent or its Subsidiaries or Affiliates or of the Company or its Subsidiary 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) or Affiliates’ businesses, product lines or assets (the actions described in the foregoing clauses (x) and (y) make all other necessary filings under any applicable Regulatory Law being “Divestiture Actions”), in each case as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under required in order to avoid the entry of, or to effect the dissolution of, any Regulatory Laws. Notwithstanding anything to injunction, temporary restraining order or other order in any suit or proceeding that would otherwise have the contrary set forth in this Agreement, none effect of Parent, Merger Sub preventing or any of their respective Subsidiaries shall be required to, and delaying the Closing; provided that neither the Company may not, and not permit any Company nor its Subsidiary to, without the prior written consent of Parent, shall become subject to, or consent to, or offer or agree to, take to or commit to otherwise take any action with respect to, any requirement, condition, limitation, understanding, agreement or order of a Governmental Entity to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assetsof, business or portion of to conduct, restrict, operate, invest or otherwise change the assets or business of the Company, the Surviving Company, Parent, Merger Sub Company or any Subsidiary of any of the foregoing or (B) impose any restrictionits Affiliates, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any unless such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries only in the event that the Closing occurs. FurtherExcept as otherwise permitted under this Agreement, the Company, Parent and Merger Sub shall not (and shall cause their Subsidiaries and Affiliates 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 in connection with the making of all registrations, filings, notifications, communications, submissions, and any other material actions pursuant to this Section 7.3, 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 reasonably apprised of the status of matters relating to the completion of the transactions contemplated hereby, including promptly furnishing the other with copies of all material notices or other material 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 Subsidiary, 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. 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 any material matter relating to the transactions contemplated hereby unless 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 participate.
(d) In furtherance and not in limitation of the covenants of the parties contained in this Section 7.3, if any Actionadministrative or judicial action or proceeding, including any proceeding by a private party, is instituted (or threatenedthreatened to be instituted) challenging or seeking to restrainany transaction contemplated by this Agreement as violative of any Law, prohibit or place conditions on the consummation each of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conductedCompany, Parent (and the Parent Subsidiaries) Merger Sub shall cooperate in all respects with each other and the Company (and the Company Subsidiaries) shall use their respective commercially reasonable best efforts to defend contest and resist any such action or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, proceeding and to have vacated, lifted, reversed or overturned any decree, judgment, injunction or other order, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents prevents, delays or restricts consummation of the Transactions, including Merger and the Mergerother transactions contemplated by this Agreement.
(be) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to Notwithstanding the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation provisions of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers 7.3 or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement else herein to the contrary, Parent shall be entitled have the sole right (subject to lead compliance with its obligations under this Section 7.3) to determine, direct and have full control over the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for process by which the Transactions parties will seek required approvals under the HSR Act or and any other Regulatory Lawantitrust Laws and to control the defense or prosecution of any claims, actions or proceedings relating thereto, including but not limited all matters relating to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the CompanyDivestiture Actions.
(cf) In connection Nothing in this Section 7.3 shall limit a party’s right to terminate this Agreement pursuant to Section 9.1(b) or Section 9.1(c) so long as such party has, prior to such termination, complied with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required its obligations under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing)this Section 7.3.
Appears in 1 contract
Sources: Merger Agreement (Pantry Inc)
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, Parent each of the Parties shall use (and the Parent Subsidiariesshall cause its Subsidiaries to use) and the Company (and the Company Subsidiaries) shall 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 in doing, all things necessary, proper or advisable under applicable Law Laws to consummate and make effective the Merger and the other Transactions as promptly as practicable and in any event prior to the End Date, including (i) the obtaining of all necessary actions or nonactions, waivers, consents, clearances, approvals and expirations or terminations of waiting periods from Governmental Entities and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval, clearance or waiver from, or to avoid an Action or Legal Proceeding by, any Governmental Entity, (ii) the obtaining of all necessary consents, approvals or waivers from third parties (other than Governmental Entities), (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 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 Transactions; provided, including that in no event shall the MergerCompany be required to pay 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 under any Contract or otherwise unless requested by Parent in writing, in which such case, it shall pay such fee, penalty or other consideration so long as soon such payment is conditioned on the occurrence of the Closing.
(b) Subject to the terms and conditions in this Agreement and without limiting the foregoing, the Company and Parent shall (and Parent shall cause its Subsidiaries to) (x) promptly, but in no event later than ten (10) 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 Transactions; provided that there are no changes in the applicable regulations under the HSR Act between the date hereof and the date of filing pursuant to the HSR Act, in which instance the Company and Parent shall use reasonable best efforts to file or cause to be filed any and all required notification and report forms under the HSR Act as promptly as commercially practicable thereafter, and (y) file or cause to be filed any and all notifications with respect to the Merger and the other Transactions as may be requested by any Governmental Entity under the Specified Laws promptly, but in no event later than twenty (20) Business Days, after receiving such request from the applicable Governmental Entity. Subject to Section 6.8(c), the Company and Parent shall (and Parent shall cause its Subsidiaries to) use all reasonable best efforts to cause the expiration or termination of any applicable waiting periods under the HSR Act. Parent and the Company may not (i) commit to or agree with any Governmental Entity to voluntarily stay, toll or extend any applicable HSR Act waiting period or review period, (ii) enter into any timing agreement with any Governmental Entity, or (iii) pull and refile any filing under the HSR Act or any other applicable Antitrust Law or the Specified Laws, without the prior written consent of the other party (not to be unreasonably withheld, conditioned or delayed).
(c) In furtherance and not in limitation of the foregoing, Parent and the Company shall (and Parent shall cause its Subsidiaries to) take, or cause to be taken, all other actions and do, or cause to be done, all other things necessary, proper or advisable to consummate and make effective the Merger and the other Transactions, by taking all such further action as may be necessary to resolve such objections, and to avoid or eliminate each and every impediment, in each case, under the Specified Laws or any Antitrust Law that may be asserted by 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 Transactions so as to enable the Closing to occur as promptly as practicable after the date hereof (and in any event by no later than the Outside End Date), including (i) preparing and filing supplying or otherwise providing, in consultation with the other Party and causing to be supplied to any Governmental Entity as promptly as reasonably practicable any and advisable 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, (ii) terminating, transferring or creating relationships, contractual rights or other obligations of Parent (including its Subsidiaries) and the Company, and (iii) otherwise taking or committing to take any actions or agree to any undertakings that would limit Parent’s (including its Subsidiaries’, and the Surviving Corporation’s) freedom of action with respect to Parent’s (including its Subsidiaries’, and the Surviving Corporation’s) future operations with respect to, assets (whether tangible or intangible), businesses, divisions, personnel, operations, products or product lines or contractual or supply relationships of Parent (and its Subsidiaries, including the Surviving Corporation) or the Company, in each case so as to satisfy the conditions to the Closing or to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any Legal Proceeding that would otherwise have the effect of preventing the Closing or delaying the Closing beyond the End Date (each such action in the foregoing clauses (ii) and (iii), individually or collectively, a “Remedial Action”). Notwithstanding anything in this Agreement to the contrary, (i) the Company shall not be (x) required to or become subject to, or consent or agree to or otherwise take any Remedial Action or Divestiture Action unless such action is applicable to the Company only from and after the Effective Time or (y) permitted to offer or agree to or effectuate any Remedial Action or Divestiture Action without the prior written consent of Parent; (ii) Parent (or any of its Subsidiaries) shall not be required to: (x) become subject to any Remedial Action if such Remedial Action would or would reasonably be expected to result in a material adverse effect on Parent and its Subsidiaries (including the Company) taken as a whole, after giving effect to the Transactions, provided, however, that for this purpose, Parent and its Subsidiaries (including the Company) taken as a whole shall be deemed a consolidated group of entities of the size and scale of a hypothetical company that is 100% of the size of the Company as of the date hereofof this Agreement, (y) become subject to, or consent or agree to or otherwise take any action with respect to any Remedial Action, unless such Remedial Action is binding on or otherwise applicable to Parent or its Subsidiaries only from and after the Effective Time, or (z) propose, commit to, effect, or execute, by consent decree, settlement, undertaking, stipulations, hold separate order, binding agreement with a third part(ies) or otherwise, the sale, divestiture, hold separate or disposition of any or all documentation of the share capital or other equity voting interests, assets (whether tangible or intangible), businesses, divisions, operations, products or product lines of Parent (including its Subsidiaries) or of the Company (collectively, “Divestiture Action”); and (iii) if requested by Parent in writing, the Company shall agree to effect any Remedial Action or Divestiture Action so long as such action is conditioned on the occurrence of the Closing.
(d) The Company, Parent and Merger Sub shall cooperate and consult with each other in connection with the making of all necessary applications, notices, petitions, filings and other documents and to obtain as promptly as reasonably practicable (and in any event by the Outside Date) all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvalsfilings, permits notifications, communications, submissions and authorizations necessary any other actions pursuant to this Section 6.8(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 Transactions, including promptly furnishing the other with copies of notices or advisable other communications provided to be obtained or received by or on behalf of the Company or Parent, as the case may be, or any of Parent’s Subsidiaries, from any third party and/or any Governmental Entity in order with respect to consummate the Transactions. Subject to applicable Law relating to the exchange of information, including the MergerCompany, 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, or proposals from third parties with respect thereto, (ii) taking all steps as may be 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, subject may designate any competitively sensitive material provided to the limitations in other under this Section 6.26.8(d) as “Outside Counsel Only Material,” and such materials and the information contained therein shall be given only to outside counsel of the recipient and will not be disclosed to other Representatives of the recipient unless express written permission is obtained in advance from the source of the materials or its legal counsel. Each of the Company, ▇▇▇▇▇▇ and ▇▇▇▇▇▇ 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 Transactions unless it consults with the other Party in advance and, to obtain all the extent not prohibited by such waiting period expirations or terminationsGovernmental Entity, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders gives the other Party the opportunity to attend and approvals. participate.
(e) In furtherance and not in limitation of the foregoing, each Party, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination covenants of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth Parties contained in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, Section 6.8 and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (BSection 6.8(f), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Actionadministrative or judicial action or proceeding, including any proceeding by a Governmental Entity or by a private party, is instituted (or threatenedthreatened to be instituted) challenging challenging, hindering, impeding, interfering with or seeking to restraindelaying any Transactions, prohibit or place conditions on the consummation in each case, as violative of any Law, each of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conductedCompany, Parent (and the Parent Subsidiaries) Merger Sub shall cooperate in all respects with each other and the Company (and the Company Subsidiaries) shall use their respective reasonable best efforts to defend contest and resist any such Action or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, Legal Proceeding and to have vacated, lifted, reversed or overturned any Action, decree, judgment, injunction or other orderOrder, whether temporary, preliminary or permanent, that is in effect and that prohibits, prevents or restricts consummation of the Merger or the other Transactions, including the Merger.
(bf) Each Subject to Section 6.8(d), Parent shall, upon reasonable consultation with the Company and in consideration of Parent the Company’s views in good faith, be entitled to direct the defense of this Agreement and the Company shallTransactions before any Governmental Entity and to take the lead in the scheduling of, in connection with and without strategic planning for, any meetings with, and the conducting of discussions and negotiations with, Governmental Entities regarding any consent, approval, waiver, clearance, authorization or permission from a Governmental Entity.
(g) Without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Lawobligation under this Agreement, (i) cooperate during the period from the date of this Agreement until the Closing Date or earlier termination of this Agreement in all respectsaccordance with Article 8, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company mayshall not, as each deems advisable and necessaryParent shall cause its Subsidiaries to not, acquire or agree to acquire any other Person or business or any material assets or properties of any other Person if such acquisition would reasonably designate any competitively sensitive material provided be expected to materially impede, prevent or materially delay the other under this Section 6.2(b) as “Outside Counsel Only Material” which such material and Parties from obtaining the information contained therein shall be given only to the outside antitrust counsel expiration or termination 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 on the one hand or the Company on the other) or its legal counsel. Notwithstanding anything in this Agreement to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, including but not limited to directing and unilaterally determining (i) any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable obtaining the Specified Regulatory Law and (ii) any decision Approvals, or to enter into, and prevent or materially delay or materially impede the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate consummation of the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In connection with and without limiting the foregoing, in the event that Parent requests the Company to do so, the Company shall give any notices to third parties required under Contracts, and the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing).
Appears in 1 contract
Sources: Merger Agreement (Encore Wire Corp)
Efforts. (a) Subject to the terms and conditions of this Agreement, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) Parent shall 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, all things necessary, proper or advisable under applicable Applicable Law to consummate the TransactionsMerger and the other transactions contemplated by this Agreement as promptly as reasonably practicable, including using reasonably best efforts to accomplish the Merger, as soon as practicable after the date hereof (and in any event by the Outside Date), including following (i) preparing and filing or otherwise providing, in consultation with the other Party and as promptly as reasonably practicable and advisable after the date hereof, hereof with any Governmental Authority all documentation to effect all necessary applicationsfilings, notices, petitions, filings statements, registrations, submissions of information, financial statements, records, applications and other documents documents, in each case, to the extent applicable, (ii) obtaining and to obtain as promptly as reasonably practicable (and in any event by the Outside Date) maintaining all waiting period expirations or terminationsapprovals, consents, clearancesregistrations, waiversPermits, authorizations, licenses, orders, registrations, approvals, permits waivers and authorizations necessary or advisable other confirmations required to be obtained from any third party and/or any Governmental Entity in order Authority that are necessary to consummate the Transactionstransactions contemplated by this Agreement, including (iii) defending or contesting any action, suit or proceeding challenging this Agreement or the Merger, transactions contemplated hereby and (iiiv) taking all steps as may be necessary, subject executing and delivering any additional instruments necessary to consummate the limitations in this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. transactions contemplated hereby.
(b) In furtherance and not in limitation of the foregoing, each Party, as applicable, agrees to of Parent and the Company shall (xand Parent shall cause Merger Subsidiary to) make, or cause to be made, (i) 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, practicable (and in any event within fifteen ten (1510) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Partieshereof), and (ii) make each other appropriate filing required pursuant to supply any Foreign Antitrust Law (collectively with the HSR Act, the “Antitrust Laws”) as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by within twenty (20) Business Days), (iii) use reasonable best efforts to comply at the Outside Date) and (y) make all other necessary filings earliest practicable date with any request under any applicable Regulatory Law as promptly as reasonably practicableof the Antitrust Laws for additional information, and to supply as promptly as reasonably practicable and advisable any additional information and documentary documents, or other materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none received by each of Parent, Merger Sub them or any of their respective Subsidiaries shall be required to, or Affiliates from any Governmental Authority in respect of such filings or such transactions and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (iiv) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult 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 changes suggested in connection therewith), and in connection with resolving any investigation or other inquiry, including inquiry of any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments Governmental Authority under any of the 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 Party, (ii) all information required for any application or other filing to be made pursuant to any Applicable Law in connection with the transactions contemplated by this Agreement. Each such party shall promptly inform the other Party parties hereto of any oral communication received by with, and provide copies of written communications with, any Governmental Authority regarding any 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”) filings or any other such transaction. No party hereto shall independently participate in any formal meeting with any Governmental Entity, by promptly providing copies to the other Party Authority in respect of any such written communicationsfilings, 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 thereat. Subject to Applicable Law, the parties hereto will consult and of any communication received or given cooperate with one another in connection with any proceeding analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by a private party, in each case regarding or on behalf of any party hereto relating to proceedings under any of the Transactions and (iii) permit the other Party to review in advance any communication that it gives to, and consult with each other in advance of any in-person meeting, telephone call or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity or, in connection with any proceeding by a private party, with any other Person, and to the extent not prohibited by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party the reasonable opportunity to attend and participate thereat; provided, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege or confidentiality concerns; provided, further, that each of Parent and the Company Antitrust Laws. Any party may, as each it deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other parties under this Section 6.2(b) 8.01 as “Outside Counsel Only Material” which such material outside counsel only”. Such materials and the information contained therein shall be given only to the outside antitrust legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers officers, or directors of the recipient recipient, unless express written permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counselmaterials. Notwithstanding anything in this Agreement The parties shall take reasonable efforts to the contrary, Parent shall be entitled to lead the strategy and course of action for seeking and obtaining all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions share information protected from disclosure under the HSR Act attorney-client privilege, work product doctrine, joint defense privilege or any other Regulatory Law, including but not limited privilege pursuant to directing and unilaterally determining (i) this section so as to preserve any decision to pull and refile any Governmental Filing or voluntarily extend any waiting period or review period under the HSR Act or any other applicable Regulatory Law and (ii) any decision to enter into, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Companyprivilege.
(c) In furtherance and not in limitation of the efforts referenced in Section 8.01(a), Parent (i) shall take any and all action necessary, including (1) 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 its Subsidiaries; (2) terminating existing relationships, contractual rights or obligations of the Company or its Subsidiaries; (3) terminating any venture or other arrangement of the Company or its Subsidiaries; (4) creating any relationship, contractual rights or obligations of the Company or its Subsidiaries or (5) 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 of an order or decree with), in each case, as required by the Federal Trade Commission, the Department of Justice or any other competition authority of any jurisdiction under an applicable Foreign Antitrust Law (collectively, “Antitrust Authority”) in connection with the Merger under Antitrust Laws; provided, that any such action may be conditioned upon consummation of the Merger (each a “Divestiture Action”) and without limiting to ensure that no Antitrust Authority enters any order, decision, judgment, decree, ruling, injunction (preliminary or permanent) preliminarily or permanently restraining, enjoining or prohibiting the foregoingconsummation of the Merger 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 End Date; provided, however, that none of Parent, Merger Subsidiary or any of their respective Affiliates, shall be required to sell, dispose of, hold separate, agree to sell or dispose of, terminate, create or effectuate any other change or restructuring (or enter into any agreement or stipulation), or otherwise agree or commit to, or otherwise effect, any Divestiture Action (A) with respect to any assets, categories of assets or businesses, relationships, rights, obligations, ventures or other arrangements of the Company or any of its Affiliates that would, individually or in the aggregate, be material to the Company and its Subsidiaries, taken as a whole or (B) with respect to any of Parent’s, Merger Subsidiary’s or any of their respective Affiliates’ respective assets (including the stock of the Company, after the Merger), categories of assets or businesses, relationships, rights, obligations, ventures or other arrangements (any of the foregoing in this proviso, individually or together with any other Divestiture Action, a “Burdensome Divestiture Condition”); and (ii) shall not consummate or enter into any agreement providing for any acquisition by it or its Subsidiaries 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 to the consummation of the transactions contemplated hereby as soon as reasonably practicable. In the event that any action is instituted challenging the Merger as violative of any Antitrust Law, Parent requests shall take all action necessary, including litigation on the Company merits and/or any Divestiture Action to do soresist, avoid or resolve such action up to a Burdensome Divestiture Condition. In the event that any permanent or preliminary injunction or other order is entered or becomes reasonably foreseeable to be entered in any proceeding that would make consummation of the transactions contemplated hereby in accordance with the terms of this Agreement unlawful or that would restrain, enjoin or otherwise prevent or materially delay the consummation of the transactions contemplated by this Agreement, Parent shall take promptly any and all steps, up to a Burdensome Divestiture Condition, necessary to vacate, modify or suspend such injunction or order so as to permit such consummation prior to the End Date. The Company shall give any notices to third parties required under Contracts, cooperate with Parent and the Company shall use, and cause each of the Company Subsidiaries to use, use its reasonable best efforts to obtain assist Parent in resisting and reducing any third party consents to any Contracts that are necessary to consummate the TransactionsDivestiture Action, including the Merger. Notwithstanding anything to the contrary hereinprovided that, none of unless requested in writing by Parent, the Company shall not propose, negotiate, agree or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty)commit to, or amend or modify otherwise effect any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing)Divestiture Action.
Appears in 1 contract
Efforts. (a) Subject to the terms and conditions of set forth in this Agreement, Parent each of the parties hereto shall, and the Company shall cause each of its Subsidiaries to, and shall request each of KMP and the Company Joint Ventures to, use its reasonable best efforts (subject to, and in accordance with, applicable Law) to take promptly, or to cause to be taken, all actions, and to do promptly, or to cause to be done, and to assist and to cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective the Merger and the other transactions contemplated hereby, including (i) the obtaining of all necessary actions or nonactions, waivers, consents and approvals, including the Company Approvals and the Parent Subsidiaries) Approvals, from Governmental Entities and the Company (making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity, (ii) 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 contemplated hereby; provided, however, that in no event shall the Company Subsidiariesor any of its Subsidiaries be required to pay prior to the Effective Time any fee, penalties or other consideration to any third party to obtain any consent or approval required for the consummation of the Merger under any Contract (other than de minimis amounts or if Parent and Merger Sub have provided adequate assurance of repayment).
(b) Subject to the terms and conditions herein provided and without limiting the foregoing, the Company and Parent shall (i) promptly, but in no event later than fifteen (15) days after the date hereof, make their respective filings and thereafter make any other required submissions under the HSR Act as promptly as reasonably practicable, (ii) use reasonable best efforts to cooperate with each other in (x) determining whether any filings are required to be made with, or consents, permits, authorizations, waivers or approvals are required to be obtained from, any third parties or other Governmental Entities in connection with the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby and (y) timely making all such filings and timely seeking all such consents, permits, authorizations or approvals, including but not limited to approvals from the California Public Utilities Commission, the Colorado Public Utilities Commission, the Wyoming Public Services Commission, the Nebraska Public Utilities Commission and under the Investment Canada Act and the Competition Act (Canada) (the “Specified Regulatory Clearances”), (iii) use reasonable best efforts to take, or to cause to be taken, all other actions and to do, or to cause to be done, all other things necessary, proper or advisable under applicable Law to consummate and make effective the TransactionsMerger and the other transactions contemplated hereby, including taking all such further action as reasonably may be necessary to resolve such objections, if any, as the MergerUnited States Federal Trade Commission, the Antitrust Division of the United States Department of Justice, state or foreign antitrust enforcement authorities or competition authorities, other Governmental Entities in connection with the Specified Regulatory Clearances, or other state or federal regulatory authorities of any other nation or other jurisdiction or any other person may assert under Regulatory Law (as hereinafter defined) with respect to the Merger and the other transactions contemplated hereby, and to avoid or eliminate each and every impediment under any Law that may be asserted by any Governmental Entity with respect to the Merger so as to enable the Closing to occur as soon as practicable after the date hereof reasonably possible (and in any event no later than the End Date (as hereinafter defined)), (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 completion of the transactions contemplated by this Agreement, including to the extent permitted by Law promptly furnishing the other with true and complete copies of notices or other communications sent or received by the Outside Date)Company or Parent, including (i) preparing and filing as the case may be, or otherwise providingany of their Subsidiaries, in consultation with the other Party and as promptly as reasonably 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 reasonably practicable (and in any event by the Outside Date) 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 Transactions, including the Mergerwith respect thereto, and (ii) taking all steps as may be necessary, subject to the limitations in this Section 6.2, to obtain all such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals. In furtherance and not in limitation of the foregoing, each Party, as applicable, agrees to (x) make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting period under the HSR Act as soon as reasonably practicable (and in any event by the Outside Date) and (y) make all other necessary filings under any applicable Regulatory Law as promptly as reasonably practicable, and to supply as promptly as reasonably practicable and advisable any additional information and documentary materials that may be requested under any Regulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, none of Parent, Merger Sub or any of their respective Subsidiaries shall be required to, and the Company may not, and not permit any Company Subsidiary to, without the prior written consent of Parent, become subject to, consent to, or offer or agree to, take or commit to take any action with respect to, any requirement, condition, limitation, understanding, agreement or order to (A) sell, license, assign, transfer, divest, hold separate or otherwise dispose of any assets, business or portion of business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or (B) impose any restriction, requirement or limitation on the operation of the business or portion of the business of the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing (unless, within such clause (B), such restriction, requirement or limitation shall have no material impact on the Company, the Surviving Company, Parent, Merger Sub or any Subsidiary of any of the foregoing or the Transactions); provided that if requested by Parent, the Company or its Subsidiaries will become subject to, consent to or offer or agree to, or otherwise take any action with respect to, any such requirement, condition, limitation, understanding, agreement or order so long as such requirement, condition, limitation, understanding, agreement or order is only binding on the Company or the Company Subsidiaries in the event the Closing occurs. Further, if any Action, including any proceeding by a private party, is instituted (or threatened) challenging or seeking to restrain, prohibit or place conditions on the consummation of the Transactions, including the Merger, or the ownership or operation by Parent, the Company or any of their respective Subsidiaries of all or any portion of their respective businesses as presently conducted and as currently proposed to be conducted, Parent (and the Parent Subsidiaries) and the Company (and the Company Subsidiaries) shall use their reasonable best efforts to defend or contest, including through litigation or other means, any objection to, or Actions challenging, the consummation of the Transactions, 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, including the Merger.
(b) Each of Parent and the Company shall, in connection with and without limiting the efforts referenced in Section 6.2(a) to obtain all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act or any other Regulatory Law, (i) cooperate in all respects, including by furnishing to the other as promptly as practicable information and assistance as the other may reasonably request, and consult with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of the Department of Justice (the “DOJ”), the Federal Trade Commission (the “FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written communications, and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party to review in advance any proposed communication that it gives to, and consult with each other in advance of by such party to any in-person meeting, telephone call supervisory or other meeting or conference (whether by video or otherwise) with, the DOJ, the FTC or any other Governmental Entity orand (v) give the other reasonable notice of, in connection with any proceeding by a private partyand, with any other Person, and to the extent not prohibited permitted by the DOJsuch Governmental Entity, the FTC or other applicable Governmental Entity or other Person, give allow the other Party the reasonable opportunity to attend and participate thereat; providedat any meeting with any Governmental Entity in respect of any filings, however, that materials required to be provided pursuant to the foregoing clauses (i) - (iii) may be redacted (A) to remove references concerning the valuation of Parent, Company investigation or any of their respective Subsidiaries, (B) as necessary to comply with contractual arrangements and (C) as necessary to address reasonable privilege other inquiry or confidentiality concerns; provided, further, that each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.2(b) as “Outside Counsel Only Material” which such 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 counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (Parent on the one hand or the Company on the other) or its legal counselproceeding relating thereto. Notwithstanding anything in this Agreement to the contrary, Parent except as provided below, nothing contained in this Agreement shall be entitled deemed to lead require Parent, any of its Subsidiaries, the strategy and course of action for seeking and obtaining all waiting period expirations Company (unless requested by Parent), or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits and authorizations for the Transactions under the HSR Act Surviving Corporation or any other Regulatory Lawof its Subsidiaries to take or agree to take any Action of Divestiture or Limitation. For purposes of this Agreement, including but not limited to directing and unilaterally determining an “Action of Divestiture or Limitation” shall mean (i) any decision executing or carrying out agreements or submitting to pull and refile the requirements of any Governmental Filing Entity providing for a license, sale or voluntarily extend other disposition of any waiting period material assets or review period under businesses or material categories of assets or businesses of the HSR Act Company and its Subsidiaries or the holding separate of any material assets or businesses or Company capital stock or imposing or seeking to impose any material limitation on the ability of the Company or any other applicable Regulatory Law of its Subsidiaries to own such assets or to acquire, hold or exercise full rights of ownership of the Company’s business or on the ability of the Company to conduct the business of the Company and its Subsidiaries, (ii) modification of a Company Permit or the terms of any decision Contract with any customer of the Company or any of its subsidiaries in a manner that would materially affect the Company or (iii) the imposition of any condition or limitation that would materially affect the Company on or in connection with any approval listed on Section 6.3(e) of the Parent Disclosure Letter (other than any such condition or limitation to enter intowhich such approval is customarily subject) or that materially restricts the business of Parent or that materially restricts the business of any of the Affiliates of Parent. The Company and Parent shall permit counsel for the other party reasonable opportunity to review in advance, and the contents of, any agreement (including a timing agreement) with any Governmental Entity to delay and not to consummate the Transactions, provided, that (x) at the time of entry into any timing or similar agreement, the term thereof would not reasonably be expected to extend beyond such time as would allow the parties sufficient time to consummate the Closing prior to the Outside Date and (y) in doing so it must act reasonably and must consider in good faith the views of the Company.
(c) In other party in connection with and without limiting with, any proposed written communication to any Governmental Entity. Notwithstanding anything in this Agreement to the foregoingcontrary, the Company shall, upon the request of Parent, agree to take any Action of Divestiture or Limitation so long as such Action of Divestiture or Limitation is binding on the Company only in the event the Closing occurs; provided, however, that Parent requests the Company shall not be required to do sotake, or cause to be taken, any such action with respect to KMP or KMR unless such action is approved by the Conflicts and Audit Committee thereof in accordance with Section 6.9 of the Partnership Agreement. Notwithstanding anything in this Agreement to the contrary, the Company shall give not undertake any notices to third parties required under Contracts, and Action of Divestiture or Limitation without the Company shall use, and cause each of the Company Subsidiaries to use, its reasonable best efforts to obtain any third party consents to any Contracts that are necessary to consummate the Transactions, including the Merger. Notwithstanding anything to the contrary herein, none consent of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any additional security (including a guaranty), or amend or modify any Contract, to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (i) reimbursed or indemnified for by Parent or (ii) subject to the occurrence of the Closing).
Appears in 1 contract
Sources: Merger Agreement (Kinder Morgan Inc)