Efforts. In furtherance and not in limitation of their obligations under this Agreement, the Buyer Parties shall, and shall cause their respective Affiliates to, use their respective reasonable best efforts to promptly obtain any clearance, consent, authorization or Order of any Governmental Authority that may be, or become, required under the HSR Act for the consummation of the Merger and to avoid the entry of, or effect the dissolution of, any Order that would otherwise have the effect of preventing or materially delaying the Merger or that would cause the Closing not to occur prior to the Termination Date. In furtherance of the foregoing, the Buyer Parties shall take, and not refrain from taking, and shall cause their respective Affiliates to take and to not refrain from taking, any and all steps necessary to avoid or eliminate each and every impediment under the HSR Act so as to enable the Parties to expeditiously close the Merger prior to the Termination Date. Without limiting the generality of the foregoing, in fulfilling their obligations under this Section 7.2(b), the Buyer Parties shall, and shall cause their respective Affiliates to, proffer to, or agree: (i) to, sell, divest, lease, license, transfer, dispose of or otherwise encumber; or to hold separate pending such disposition, any assets, licenses, operations, rights, product lines, businesses or interest therein of Parent, the Company or any of their respective Affiliates (or to consent thereto); and (ii) to agree to any material changes (including through a licensing arrangement) or restriction on, or other impairment of Parent’s or its Affiliates’ ability to own or operate, any such assets, licenses, operations, rights, product lines, businesses or interests therein or Parent’s or its Affiliates’ ability to vote, transfer, receive dividends or otherwise exercise full ownership rights with respect to the capital stock of the Company or the Surviving Corporation; provided that Parent can compel the Company to (and to cause its Affiliates to) agree to any such term or condition or take any such actions (or agree to take such actions) so long as the effectiveness of such term or condition or action is conditioned upon the consummation of the Offer and the Merger. In furtherance and not in limitation of the foregoing, the Parties shall use their reasonable best efforts to contest and defend against the entry of, or to have vacated, lifted, reversed or overturned, any decree, judgment, injunction or other order, whether temporary, preliminary, or permanent, under any Antitrust Law that would restrain, prevent or delay the Closing on or before the Termination Date, including defending through litigation on the merits any claim asserted in any court with respect to the transactions contemplated by this Agreement.
Appears in 3 contracts
Sources: Agreement and Plan of Merger (Herc Holdings Inc), Agreement and Plan of Merger (Herc Holdings Inc), Agreement and Plan of Merger (H&E Equipment Services, Inc.)
Efforts. In furtherance and not in limitation of their obligations under this Agreement, the Buyer Parties shall, and shall cause their respective Affiliates to, use their respective reasonable best efforts to promptly obtain any clearance, consent, authorization or Order of any Governmental Authority that may be, or become, required under the HSR Act for the consummation of the Merger and to avoid the entry of, or effect the dissolution of, any Order that would otherwise have the effect of preventing or materially delaying the Merger or that would cause the Closing not to occur prior to the Termination Date. In furtherance of the foregoing, the Buyer Parties shall take, and not refrain from taking, and shall cause their respective Affiliates to take and to not refrain from taking, any and all steps necessary to avoid or eliminate each and every impediment under the HSR Act so as to enable the Parties to expeditiously close the Merger prior to the Termination Date. Without limiting Notwithstanding anything to the generality contrary in this Agreement, nothing in this Agreement, including any provision of the foregoing, in fulfilling their obligations under this Section 7.2(b)7.2, shall require, or be construed to require, Parent or the Buyer Parties shall, and shall cause Company or any of their respective Affiliates to, to proffer to, or agree: (i) to, sell, divest, lease, license, transfer, dispose of or otherwise encumber; or to hold separate pending such disposition, any assets, licenses, operations, rights, product lines, businesses or interest therein of Parent, the Company or any of their respective Affiliates (or to consent thereto); and or (ii) to agree to any material changes (including through a licensing arrangement) or restriction on, or other impairment of Parent’s or its Affiliates’ ability to own or operate, any such assets, licenses, operations, rights, product lines, businesses or interests therein or Parent’s or its Affiliates’ ability to vote, transfer, receive dividends or otherwise exercise full ownership rights with respect to the capital stock of the Company or the Surviving Corporation; provided that Parent can compel the Company to (and to cause its Affiliates to) agree to any such term or condition or take any such actions (or agree to take such actions) so long as the effectiveness of such term or condition or action is conditioned upon the consummation of the Offer and the Merger. In furtherance and not in limitation of the foregoing, the Parties shall use their reasonable best efforts to contest and defend against the entry of, or to have vacated, lifted, reversed or overturned, any decree, judgment, injunction or other order, whether temporary, preliminary, or permanent, under any Antitrust Law that would restrain, prevent or delay the Closing on or before the Termination Date, including defending through litigation on the merits any claim asserted in any court with respect to the transactions contemplated by this Agreement.
Appears in 3 contracts
Sources: Merger Agreement (United Rentals, Inc.), Agreement and Plan of Merger (H&E Equipment Services, Inc.), Merger Agreement (United Rentals North America Inc)
Efforts. In furtherance (a) Subject to the terms and not in limitation conditions of their obligations under this Agreement, each of Parent and the Buyer Parties Company shall, and shall cause their respective Affiliates to, Subsidiaries to use their respective reasonable best efforts (i) to take, or cause to be taken, all actions necessary, proper or advisable to comply promptly with all legal requirements which may be imposed on such Party or its Subsidiaries with respect to the Transactions and, subject to the conditions set forth in Annex A and Article VII hereof, to consummate the transactions contemplated by this Agreement, including the Transactions, as promptly as practicable and (ii) to obtain (and to cooperate with the other Party to obtain) any clearance, consent, authorization authorization, order or Order of any Governmental Authority that may be, or become, required under the HSR Act for the consummation of the Merger and to avoid the entry approval of, or effect the dissolution ofany exemption by, any Order that would otherwise have Governmental Entity and any other third Person which is required to be obtained by Parent or the effect Company or any of preventing or materially delaying their respective Subsidiaries in connection with the Merger or that would cause Transactions and the Closing not to occur prior to the Termination Date. In furtherance of the foregoing, the Buyer Parties shall takeother transactions contemplated by this Agreement, and not refrain from takingto comply with the terms and conditions of any such consent, authorization, order or approval. Parent shall, and shall cause their respective Affiliates to its Subsidiaries to, promptly take and to not refrain from taking, any and all steps necessary to avoid or eliminate each and every impediment and obtain all consents under the HSR Act and any other applicable U.S. or foreign competition, antitrust, merger control or investment Laws (together with the HSR Act, “Antitrust Laws”) that may be required by any foreign or U.S. federal, state or local Governmental Entity, in each case with competent jurisdiction, so as to enable the Parties to expeditiously close consummate the Merger prior Transactions as promptly as practicable, including committing to the Termination Date. Without limiting the generality of the foregoingor effecting, in fulfilling their obligations under this Section 7.2(b)by consent decree, hold separate orders, trust, or otherwise, the Buyer Parties shall, and shall cause their respective Affiliates to, proffer tosale or disposition of, or agree: (i) to, sell, divest, lease, license, transfer, dispose of prohibition or otherwise encumber; limitation on the ownership or to hold separate pending such disposition, any assets, licenses, operations, rights, product lines, businesses or interest therein of Parent, operation by Parent and the Company or any of their respective Affiliates (Subsidiaries of, such assets or businesses as may be required in order to avoid the entry of, or to consent thereto); and (ii) to agree to any material changes (including through a licensing arrangement) effect the dissolution of or restriction on, vacate or other impairment of Parent’s or its Affiliates’ ability to own or operatelift, any such assetsOrder, licensesthat would otherwise have the effect of preventing or materially delaying the consummation of any of the Transactions. Further, operationsand for the avoidance of doubt, rightsParent will take any and all actions necessary in order to ensure that (x) no requirement for any non-action by or consent or approval of the FTC, product lines, businesses the Antitrust Division of the Department of Justice or interests therein or Parent’s or its Affiliates’ ability to vote, transfer, receive dividends or otherwise exercise full ownership rights any other Governmental Entity with respect to the capital stock any Antitrust Laws, (y) no decree, judgment, injunction, temporary restraining order or any other order in any suit or proceeding with respect to any Antitrust Laws and (z) no other matter relating to any Antitrust Laws would preclude consummation of the Company Offer or the Surviving Corporation; provided that Merger by the Outside Date.
(b) Subject to the terms and conditions of this Agreement, each of Parent can compel and the Company shall use reasonable best efforts to (take, or cause to be taken, all actions, and to do, or cause its Affiliates to) agree to be done, all things necessary, proper or advisable to consummate and make effective, as soon as practicable after the date of this Agreement, the transactions contemplated hereby, including using reasonable best efforts to lift or rescind any such term injunction or condition restraining order or take other order adversely affecting the ability of the Parties to consummate the transactions contemplated hereby and using reasonable best efforts to defend any such actions (litigation seeking to enjoin, prevent or agree to take such actions) so long as the effectiveness of such term or condition or action is conditioned upon delay the consummation of the Offer and the Merger. transactions contemplated hereby or seeking material damages.
(c) In furtherance and not in limitation of the foregoing, (i) each Party hereto shall make an appropriate filing of a Notification and Report Form pursuant to the Parties shall HSR Act with respect to the transactions contemplated hereby as promptly as practicable and in any event within seven (7) Business Days of the date hereof, unless otherwise agreed to by the Parties, and to supply as promptly as practicable any additional information and documentary material that may be requested pursuant to the HSR Act and use their its reasonable best efforts to contest and defend against the entry oftake, or cause to have vacatedbe taken, liftedall other actions consistent with this Section 6.7 necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act (including any extensions thereof) as soon as practicable and (ii) each of the Parent and the Company shall use its reasonable best efforts to (x) take all action reasonably necessary to ensure that no state takeover statute or similar Law is or becomes applicable to any of the transactions contemplated by this Agreement and (y) if any state takeover statute or similar Law becomes applicable to any of the transactions contemplated by this Agreement, reversed take all action necessary to enable the transactions contemplated by this Agreement to be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise minimize the effect of such Law on the transactions contemplated by this Agreement.
(d) Each of the Parties hereto shall use its reasonable best efforts to (i) cooperate in all respects with each other in connection with any filing or overturned, submission with a Governmental Entity in connection with the transactions contemplated by this Agreement and in connection with any decree, judgment, injunction investigation or other order, whether temporary, preliminary, or permanent, under any Antitrust Law that would restrain, prevent or delay the Closing on inquiry by or before the Termination Date, including defending through litigation on the merits any claim asserted in any court with respect a Governmental Entity relating to the transactions contemplated by this Agreement, including any governmental inquiry, investigation or proceeding initiated by a private party, and (ii) keep the other Party informed in all material respects and on a reasonably timely basis of any communication received by such Party from, or given by such Party to, the FTC, the Antitrust Division of the Department of Justice or any other Governmental Entity and of any communication received or given by a private Person in connection with any governmental inquiry, investigation or proceeding, in each case regarding any of the transactions contemplated by this Agreement. Notwithstanding anything to the contrary contained in this Agreement, Parent shall have the right to direct all matters with any Governmental Entity consistent with its obligations hereunder. In addition, Parent shall have the principal responsibility for devising and implementing the strategy for obtaining any necessary antitrust or competition clearances and shall take the lead in all meetings and communications with any Governmental Entity in connection with obtaining any necessary antitrust or competition clearances. In furtherance and not in limitation of this Section 6.7(d), subject to applicable Laws relating to the exchange of information, each Party shall consult and cooperate with the other Party in connection with any analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with any such request, inquiry, investigation, action or other legal proceeding. In addition, except as may be prohibited by any Governmental Entity or by Law, in connection with any such request, inquiry, investigation, action or other legal proceeding, each Party hereto shall permit authorized Representatives of the other Party (x) to participate at or in each substantive meeting, conference or telephone call with a representative of a Governmental Entity relating to such request, inquiry, investigation, action or other legal proceeding and (y) to have reasonable access to and be consulted in connection with any material document, opinion or proposal made or submitted to any Governmental Entity in connection with any such request, inquiry, investigation, action or other legal proceeding. Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this Section 6.7(d) as “outside counsel only.” 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 or its legal counsel. Notwithstanding anything to the contrary in this Section 6.7(d), materials provided to the other Party or its outside counsel may be redacted to remove references concerning the valuation, pricing and other competitively sensitive terms from an antitrust perspective in the Contracts of Parent, the Company and their respective Subsidiaries.
Appears in 2 contracts
Sources: Merger Agreement (Hillshire Brands Co), Merger Agreement (Tyson Foods Inc)
Efforts. In furtherance Upon the terms and not in limitation subject to the conditions of their obligations under this Agreement, each of the Buyer Parties shall, and shall cause their respective Affiliates to, will use their respective reasonable best efforts to promptly obtain any clearance, consent, authorization or Order of any Governmental Authority that may betake, or becomecause to be taken, required under the HSR Act for the consummation of the Merger all actions and to avoid the entry ofdo, or effect cause to be done, all things necessary, proper or advisable under applicable Laws to consummate and defend the dissolution of, any Order that would otherwise have Transactions. From the effect of preventing or materially delaying the Merger or that would cause Execution Date through the Closing not to occur prior to Date, Seller will operate the Termination DateRadiopharmacy Business in the Ordinary Course of Business in all material respects. In furtherance of the foregoing, the Buyer Parties shall take, and not refrain from taking, and shall cause their respective Affiliates to take and to not refrain from taking, any and all steps necessary to avoid or eliminate each and every impediment under the HSR Act so as to enable the Parties to expeditiously close the Merger prior to the Termination Date. Without limiting the generality of the foregoing, in fulfilling their obligations under this Section 7.2(b), the Buyer Parties shall, and shall cause their respective Affiliates to, proffer to, or agree: (i) to, sell, divest, lease, license, transfer, dispose of or otherwise encumber; or to hold separate pending such disposition, any assets, licenses, operations, rights, product lines, businesses or interest therein of Parent, the Company or any of their respective Affiliates (or to consent thereto); and (ii) to agree to any material changes (including through a licensing arrangement) or restriction on, or other impairment of Parent’s or its Affiliates’ ability to own or operate, any such assets, licenses, operations, rights, product lines, businesses or interests therein or Parent’s or its Affiliates’ ability to vote, transfer, receive dividends or otherwise exercise full ownership rights with respect to the capital stock of the Company or the Surviving Corporation; provided that Parent can compel the Company to (and to cause its Affiliates to) agree to any such term or condition or take any such actions (or agree to take such actions) so long as the effectiveness of such term or condition or action is conditioned upon the consummation of the Offer and the Merger. In furtherance and not Not in limitation of the foregoing, and notwithstanding any limitation in the Parties shall use foregoing:
(a) If an application (not including, for greater certainty, mere investigations or inquiries) is initiated by the Commissioner under section 92 of the Competition Act seeking an Order from the Competition Tribunal that would rescind, dissolve or otherwise unwind any of the Transactions or any provision of any Transaction Document, in whole or in part, then in each such case, Buyer and its Affiliates and Subsidiaries will, prior to an Order being made by the Competition Tribunal, take any and all actions (at its and their reasonable best efforts to contest own cost and defend against the entry ofexpense) including by selling or divesting, or agreeing to sell or divest, assets (including any of the Purchased Assets) to a third party or modifying or terminating, or agreeing to modify or terminate, any existing commercial relationships (other than with Seller) or Contracts (other than any of the Transaction Documents) or entering into, or agreeing to enter into, supply agreements and/or agreements for the licensing of intellectual property, in each case, solely to the extent required to avoid an Order from the Competition Tribunal requiring rescission, dissolution or other unwinding of any of the Transactions in a manner that involves Seller or its Affiliates or adversely affects any of Seller’s rights under the Transaction Documents, or that would involve the put or other sale of any of the Purchased Assets or Assumed Liabilities back to Seller or its Affiliates; provided further that Buyer will, and will cause its Affiliates, to take any and all actions (at its and their own cost and expense) to have vacated, lifted, reversed reversed, repealed or overturnedrescinded any Order from the Competition Tribunal requiring rescission, any decree, judgment, injunction dissolution or other order, whether temporary, preliminaryunwinding of any of the Transactions in a manner that involves Seller or its Affiliates or adversely affects any of Seller’s rights under the Transaction Documents, or permanent, under any Antitrust Law that would restraininvolve the put or other sale of any of the Purchased Assets or Assumed Liabilities back to Seller or its Affiliates; provided further that Buyer will not consent to any agreement with the Commissioner (whether under Section 92 of the Competition Act or otherwise) that involves rescission, prevent dissolution or delay unwinding of any of the Closing Transactions, in whole or in part, or that involves the put or sale of any of the Purchased Assets or Assumed Liabilities back to Seller or its Affiliates or that adversely affects any of Seller’s rights under the Transaction Documents; and provided further that Buyer will not be required to take actions that, in the aggregate, would cause a material adverse effect on or before its combined business (including the Termination DateRadiopharmacy Business). In addition, including defending through litigation Buyer will provide Seller on the merits any claim asserted in any court a timely basis with a copy of all communications and correspondence with respect to the transactions contemplated Transactions, including attachments and briefs, between (A) Buyer, its Affiliates and its advisors, on the one hand, and (B) the Commissioner of Competition, on the other.
(b) Buyer agrees, and will cause its Affiliates, to exercise reasonable best efforts to take any and all actions (at its and their own cost and expense) necessary to avoid, contest and defend against any dissolution, rescission or other unwinding or modification of the Transactions, in whole or in part, under the Investment Canada Act, and to have vacated, lifted, reversed, repealed or rescinded any Order for dissolution, rescission or other unwinding or modification of the Transactions that may be initiated, asserted or issued by this Agreementany Governmental Authority with respect to the Transactions, under the Investment Canada Act, including by way of notice, requirement, referral, investigation, inquiry, Order or Legal Proceeding.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Lantheus Holdings, Inc.), Asset Purchase Agreement (Lantheus Holdings, Inc.)
Efforts. In furtherance (a) Subject to the terms and conditions provided in this Agreement, each of the parties hereto 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 and regulations to consummate and make effective the Transactions, to cause all conditions to the obligations of the other parties hereto to effect the Merger to be satisfied, to obtain all necessary waivers, consents, approvals and other documents required to be delivered hereunder and to effect all necessary registrations and filings and to remove any injunctions or other impediments or delays, legal or otherwise, in order to consummate and make effective the transactions contemplated by this Agreement for the purpose of securing to the parties hereto the benefits contemplated by this Agreement, in each case, so that the Closing may occur by no later than the End Date; provided that, notwithstanding anything in this Section 6.08 or any other provision in this Agreement to the contrary (but, with respect to the Company, subject to the last sentence of this Section 6.08(a)), no party shall be required to agree (and the Company shall not in agree, and shall cause its Subsidiaries not to agree, without the prior written consent of Parent) to (i) any license, sale or other disposition or holding separate (through establishment of a trust or otherwise) of any shares of its capital stock or of any of its businesses, assets or properties, its Subsidiaries or Affiliates, (ii) the imposition of any limitation on the ability of Parent or its Affiliates or the Company or its Subsidiaries to conduct their respective businesses or own any capital stock or assets or to acquire, hold or exercise full rights of ownership of their respective businesses or assets and, in the case of Parent, the businesses or assets of the Company and its Subsidiaries or (iii) the imposition of any impediment on Parent or its Affiliates or the Company or its Subsidiaries under any statute, rule, regulation, executive order, decree, Order or other legal restraint governing competition, monopolies or restrictive trade practices (any such action described in (i), (ii) or (iii), an “Action of Divestiture”). Nothing herein shall require Parent or its Affiliates or permit the Company or its Subsidiaries (without the prior written consent of Parent) to litigate with any Governmental Entity. Nothing in this Agreement shall require Parent or its Affiliates or permit the Company or its Subsidiaries (without the prior written consent of Parent) to pay any consideration or agree to any modifications of existing Contracts or enter into new Contracts (other than the payment of customary filing and application fees) in connection with obtaining any waivers, consents or approvals from Governmental Entities or other Persons in connection with this Agreement or the Merger. Without limiting any obligations of the Company under this Agreement, the Buyer Parties Company shall, and shall cause their respective Affiliates its Subsidiaries to, use their respective reasonable best efforts agree to promptly obtain any clearance, consent, authorization or Order such Actions of any Governmental Authority that Divestiture and enter into such Contracts as may be, or become, required under be requested by Parent in connection with the HSR Act for objectives set forth in the consummation first sentence of the Merger and to avoid the entry of, or effect the dissolution of, any Order that would otherwise have the effect of preventing or materially delaying the Merger or that would cause the Closing not to occur prior to the Termination Date. In furtherance of the foregoing, the Buyer Parties shall take, and not refrain from taking, and shall cause their respective Affiliates to take and to not refrain from taking, any and all steps necessary to avoid or eliminate each and every impediment under the HSR Act so as to enable the Parties to expeditiously close the Merger prior to the Termination Date. Without limiting the generality of the foregoing, in fulfilling their obligations under this Section 7.2(b), the Buyer Parties shall, and shall cause their respective Affiliates to, proffer to, or agree: (i) to, sell, divest, lease, license, transfer, dispose of or otherwise encumber; or to hold separate pending such disposition, any assets, licenses, operations, rights, product lines, businesses or interest therein of Parent, the Company or any of their respective Affiliates (or to consent thereto); and (ii) to agree to any material changes (including through a licensing arrangement) or restriction on, or other impairment of Parent’s or its Affiliates’ ability to own or operate, any such assets, licenses, operations, rights, product lines, businesses or interests therein or Parent’s or its Affiliates’ ability to vote, transfer, receive dividends or otherwise exercise full ownership rights with respect to the capital stock of the Company or the Surviving Corporation; provided that Parent can compel the Company to (and to cause its Affiliates to) agree to any such term or condition or take any such actions (or agree to take such actions6.08(a) so long as such Actions of Divestiture and Contracts are conditioned on the effectiveness Closing having occurred.
(b) The parties hereto will, or will cause their “ultimate parent entities” as that term is defined in the HSR Act, as reasonably advisable, to make as promptly as reasonably practicable (and, in any event, solely in the case of such term or condition or action is conditioned upon any necessary filings and notifications under the consummation HSR Act, within eighteen (18) days following the date hereof) all necessary filings and notifications and other submissions with respect to this Agreement and the Transactions under the HSR Act, the EC Merger Regulation, and any other applicable Antitrust Laws. To the extent permitted by Applicable Law, each of the Offer Company and Parent shall inform the Mergerother of any material communication between the Company or Parent or any Affiliate thereof (as applicable) and any Governmental Entity regarding the transactions contemplated by this Agreement. In furtherance and not in limitation of If the foregoing, the Parties Company or Parent or any Affiliate thereof shall use their reasonable best efforts to contest and defend against the entry of, receive any formal or to have vacated, lifted, reversed informal request for supplemental information or overturned, documentary material from any decree, judgment, injunction or other order, whether temporary, preliminary, or permanent, under any Antitrust Law that would restrain, prevent or delay the Closing on or before the Termination Date, including defending through litigation on the merits any claim asserted in any court Governmental Entity with respect to the transactions contemplated by this Agreement, then, except to the extent prohibited by Applicable Law, the Company or Parent (as applicable) shall promptly inform the other and make, or cause to be made, as soon as reasonably practicable, a response in substantial compliance with such request. Without limiting the generality or effect of Section 6.08(a), to the extent permitted by Applicable Law, the parties hereto shall consult and cooperate with one another, and consider in good faith the views of 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 in connection with proceedings under or relating to the HSR Act, the EC Merger Regulation or any other applicable Antitrust Laws.
(c) Without limiting the generality of Section 6.08(b), to the extent permitted by Applicable Law, in connection with this Agreement and the Transactions, the parties agree to (i) give each other reasonable advance notice of all meetings, calls or other communications with any Governmental Entity relating to any Antitrust Laws, (ii) give each other an opportunity to participate in each of such meetings, calls or other communications, (iii) if any Governmental Entity initiates a substantive oral communication regarding any Antitrust Laws, to add the other parties hereto to such call if practicable and, if not practicable, to promptly notify the other parties hereto of the substance of such communication, (iv) provide each other with a reasonable advance opportunity to review and comment upon all written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Entity regarding any Antitrust Laws and (v) provide each other with copies of all written communications from any Governmental Entity relating to any Antitrust Laws. Any disclosures or provision of copies by one Party to the other may be made on an outside counsel basis, if appropriate.
(d) (A) Following the consultation with the Company as contemplated by Section 6.08(b) and Section 6.08(c), Parent shall have the exclusive right to make all strategic and tactical decisions as to the manner in which to obtain from any Governmental Entity under the HSR Act, the EC Merger Regulation or any other applicable Antitrust Laws, any actions or non-actions, consents, approvals, authorizations, clearances or orders required to be obtained by Parent or the Company or any of their respective Affiliates in connection with the consummation of the transactions contemplated by this Agreement, (B) Parent and its Representatives shall have no obligation to share with the Company, any of its Subsidiaries or any of their respective Representatives (other than outside antitrust counsel) any nonpublic information, data or materials about any of the businesses or operations of Parent and its Affiliates and (C) the Company will not, nor will it permit any of its Subsidiaries or Representatives to make any communications with, or proposals relating to, or enter into, any understanding, undertaking or agreement with, any Governmental Entity relating to the Transactions without Parent’s prior review and approval.
(e) Subject to the proviso to Section 6.08(a), the Company shall use its commercially reasonable efforts to obtain the consents listed on Section 6.08(e) of the Company Disclosure Schedules. For the avoidance of doubt, the Company shall not be required to pay any amount or agree to any accommodation with the counter-party to obtain any such consent.
Appears in 2 contracts
Efforts. In furtherance Buyer shall use commercially reasonable efforts (without the obligation to incur any undue expense) to assume and not in limitation perform all of their the obligations under this Agreementthe Transferred Rights, Obligations and Agreements. To the Buyer Parties shall, and shall cause their respective Affiliates to, use their respective reasonable best efforts to promptly obtain any clearance, consent, authorization extent that the assignment or Order novation of any Governmental Authority that may beof the Transferred Rights, Obligations and Agreements, or becomethe assignment under (S)2.1 above, required under shall require the HSR Act for consent of any other party (or in the consummation event that any of the Merger and to avoid same shall be non-assignable), neither the entry of, or effect the dissolution of, agreements contemplated by this Agreement nor any Order that would otherwise have the effect of preventing or materially delaying the Merger or that would cause the Closing not to occur prior actions taken hereunder pursuant to the Termination Dateprovisions of any such agreements shall constitute an assignment or novation or an agreement to assign or novate if such assignment or novation or attempted assignment or novation would constitute a breach thereof or result in the loss or diminution thereof; provided, however, that in each such case, ▇▇▇▇ and Buyer shall use commercially reasonable efforts (without the obligation to incur any undue expense) to obtain the consent of such other party to an assignment or novation to Buyer. In furtherance of Notwithstanding the foregoing, it shall be a condition to closing that any consents required for the assignment of the Transferred Rights, Obligations and Agreements designated by Buyer Parties shall takehave been obtained on terms and conditions satisfactory to Buyer, in its reasonable discretion. If such consent is not obtained, ▇▇▇▇ shall cooperate with Buyer in any reasonable arrangement designed to provide Buyer with the benefits under any such Transferred Rights, Obligations and not refrain from takingAgreements, including appointing Buyer to act as its agent to perform all of Dana's obligations under such Transferred Rights, Obligations and shall cause their respective Affiliates to take Agreements and to not refrain from takingcollect and promptly remit to Buyer all compensation payable pursuant to those Transferred Rights, Obligations and Agreements and to enforce, for the account and benefit of Buyer, any and all steps necessary to avoid rights of ▇▇▇▇ against any other person arising out of the breach or eliminate each cancellation of such Transferred Rights, Obligations and every impediment under Agreements by such other person or otherwise (any and all of which arrangements shall constitute, as between the HSR Act so as to enable the Parties to expeditiously close the Merger prior parties hereto, a deemed assignment or transfer); provided that, to the Termination Date. Without limiting the generality extent that Buyer requires ▇▇▇▇ to undertake any services or take any actions in furtherance of the foregoingperformance of such Transferred Rights, in fulfilling their obligations under this Section 7.2(b), the Buyer Parties shall, Obligations and shall cause their respective Affiliates to, proffer to, or agree: (i) to, sell, divest, lease, license, transfer, dispose of or otherwise encumber; or to hold separate pending such disposition, any assets, licenses, operations, rights, product lines, businesses or interest therein of Parent, the Company or any of their respective Affiliates (or to consent thereto); and (ii) to agree to any material changes (including through a licensing arrangement) or restriction on, or other impairment of Parent’s or its Affiliates’ ability to own or operateAgreements, any such assetsservices or actions shall be the subject of a separate agreement that the parties shall, licensesin good faith, operations, rights, product lines, businesses or interests therein or Parent’s or its Affiliates’ ability to vote, transfer, receive dividends or otherwise exercise full ownership rights with respect negotiate as promptly as possible and which shall be mutually acceptable to the capital stock parties. Each party shall be responsible for all of its costs and expenses incurred by it in connection with the Company or the Surviving Corporation; provided that Parent can compel the Company to actions required of it under this (and to cause its Affiliates to) agree to any such term or condition or take any such actions (or agree to take such actions) so long as the effectiveness of such term or condition or action is conditioned upon the consummation of the Offer and the Merger. In furtherance and not in limitation of the foregoing, the Parties shall use their reasonable best efforts to contest and defend against the entry of, or to have vacated, lifted, reversed or overturned, any decree, judgment, injunction or other order, whether temporary, preliminary, or permanent, under any Antitrust Law that would restrain, prevent or delay the Closing on or before the Termination Date, including defending through litigation on the merits any claim asserted in any court with respect to the transactions contemplated by this AgreementS)2.15.
Appears in 1 contract
Efforts. In furtherance (i) During the period from the date hereof and continuing until the earlier of the valid termination of this Agreement and the Closing Date, Buyer and its Affiliates shall not in limitation of their obligations under this Agreementtake any action, the Buyer Parties shallincluding entering into any transaction, and shall cause their respective Affiliates to, use their respective reasonable best efforts that would reasonably be expected to promptly obtain prevent or delay any clearance, consent, authorization filings or Order of any Governmental Authority that may be, or become, approvals required under the HSR Act for the consummation of the Merger and to avoid the entry of, or effect the dissolution of, any Order that would otherwise have the effect of preventing or materially delaying the Merger or that would cause the Closing not to occur prior applicable competition Laws.
(ii) Notwithstanding anything in this Agreement to the Termination Date. In furtherance of the foregoingcontrary, the Buyer Parties and its Subsidiaries shall take, and not refrain from taking, and shall or cause their respective Affiliates to take and to not refrain from takingbe taken, any and all steps necessary actions and do, or cause to avoid be done, any and all things necessary, proper or advisable to avoid, eliminate and resolve each and every impediment under and obtain all consents required to permit the HSR Act so as to enable the Parties to expeditiously close the Merger prior to the Termination Date. Without limiting the generality satisfaction of the foregoingconditions in Article VII, in fulfilling their obligations under this Section 7.2(b)as promptly as reasonably practicable, the Buyer Parties shall, including by offering to:
(A) proffer and shall cause their respective Affiliates to, proffer to, or agree: (i) to, agree to sell, divest, lease, license, transfer, dispose of or otherwise encumber; , or to hold separate pending such disposition, any assets, licenses, operations, rights, product lines, businesses or interest therein and effectuate such actions with respect to such assets of Parent, the Company or any of their respective Affiliates (or to consent thereto); and (ii) to agree to any material changes (including through a licensing arrangement) or restriction on, or other impairment of Parent’s Buyer or its Affiliates’ ability Subsidiaries (and the entry into agreements with, and submission to own Orders giving effect thereto) if such action is necessary to avoid, prevent, eliminate or operateremove the issuance of any Order that would reasonably be expected to materially delay, any such assetsrestrain, licensesprevent, operations, rights, product lines, businesses or interests therein or Parent’s or its Affiliates’ ability to vote, transfer, receive dividends enjoin or otherwise exercise full ownership prohibit consummation of the Transactions by any Governmental Entity;
(B) terminate any existing relationships and contractual rights and obligations of Buyer including, after the Closing, with respect to the capital stock Business or any of the Company Transferred Assets;
(C) amend or terminate existing licenses or other intellectual property agreements and to enter into such new licenses or other intellectual property agreements;
(D) take any and all actions and make any and all behavioral commitments, whether or not they limit or modify Buyer’s rights of ownership in, or ability to conduct the Surviving Corporationbusiness of, the Business or any of the Transferred Assets; and
(E) enter into agreements, including with the relevant Governmental Entity, giving effect to the foregoing clauses (A) through (D) (such actions in clauses (A) through (E), “Required Actions”); provided that Parent can compel (1) such Required Actions are conditioned upon and become effective only from and after the Company Closing and (2) for the avoidance of doubt, no Affiliate of Buyer (other than any Subsidiary) shall be required to (and to cause its Affiliates to) agree to any such term or condition or take any such actions (or agree to take such actions) so long as the effectiveness of such term or condition or action is conditioned upon the consummation of the Offer and the Merger. In furtherance and not in limitation of the foregoing, the Parties shall use their reasonable best efforts to contest and defend against the entry of, or to have vacated, lifted, reversed or overturned, any decree, judgment, injunction or other order, whether temporary, preliminary, or permanent, under any Antitrust Law that would restrain, prevent or delay the Closing on or before the Termination Date, including defending through litigation on the merits any claim asserted in any court with respect to the transactions contemplated by this AgreementRequired Actions.
Appears in 1 contract
Sources: Asset Purchase Agreement (Sequential Brands Group, Inc.)
Efforts. In furtherance Without limiting the generality of Parent’s undertakings pursuant to Section 5.7a, Parent will propose, negotiate, commit to and not in limitation of their obligations under this Agreementeffect, by consent decree, hold separate order or otherwise, the Buyer Parties shallsale, and shall cause their respective divestiture or disposition of such assets or businesses of Parent or its Affiliates or, effective as of the Closing, Company or the Subsidiaries or otherwise commit to take any action that it is capable of taking, take or commit to take such action that limits its freedom of action with respect to, use their respective reasonable best efforts or its ability to promptly obtain retain, any clearance, consent, authorization or Order of any Governmental Authority that may be, or become, required under the HSR Act for the consummation of the Merger and businesses, services or assets of Parent or its Affiliates, Company or the Subsidiaries, in order to avoid the entry of, or to effect the dissolution of, any Order injunction, temporary restraining order or other order in any suit or proceeding, that would otherwise have the effect of preventing or materially delaying the Merger or that would cause the Closing not to occur prior to the Termination Date. In furtherance consummation of the foregoingtransactions contemplated by this Agreement; provided, the Buyer Parties shall takehowever, and not refrain from taking, and shall cause their respective Affiliates to take and to not refrain from taking, any and all steps necessary to avoid or eliminate each and every impediment under the HSR Act so as to enable that the Parties to expeditiously close understand and agree that, notwithstanding the foregoing or any other provision of this Agreement, nothing contained in this Agreement shall require or obligate Parent or Merger prior to the Termination Date. Without limiting the generality of the foregoing, in fulfilling their obligations under this Section 7.2(b), the Buyer Parties shall, and shall cause their respective Affiliates to, proffer to, or agree: (i) to, sell, divest, lease, license, transfer, dispose of or otherwise encumber; or to hold separate pending such disposition, any assets, licenses, operations, rights, product lines, businesses or interest therein of Parent, the Company Sub or any of their respective Affiliates to, and Company shall not without the written consent of Parent, take or commit to take any action, including: (1) any sale, divesture, disposition, holding separate, license or to consent thereto); and (ii) to agree other action that limits in any respect its freedom of action with respect to any material changes (including through a licensing arrangement) of its or restriction on, or other impairment of ParentCompany’s or its Affiliates’ ability to own or operateany of their respective Affiliate’s businesses, any such assets, licensesproperties, operationsproducts, rights, product linesservices, businesses licenses or any interests or interests therein therein; or Parent’s or its Affiliates’ ability to vote(2) entering into any settlement, transferundertaking, receive dividends or otherwise exercise full ownership rights with respect to the capital stock of the Company or the Surviving Corporation; provided that Parent can compel the Company to (and to cause its Affiliates to) agree to any such term or condition or take any such actions (or agree to take such actions) so long as the effectiveness of such term or condition or action is conditioned upon the consummation of the Offer and the Merger. In furtherance and not in limitation of the foregoing, the Parties shall use their reasonable best efforts to contest and defend against the entry of, or to have vacated, lifted, reversed or overturned, any consent decree, judgmentstipulation or agreement with any Government Entity; that, injunction individually or other orderin the aggregate, whether temporary, preliminary, would result in a Material Adverse Effect or permanent, under any Antitrust Law that would restrain, prevent or delay the Closing on or before the Termination Date, including defending through litigation a material adverse effect on the merits any claim asserted in any court with respect to the transactions contemplated by this Agreementbusiness of Parent and its subsidiaries taken as a whole.
Appears in 1 contract
Sources: Merger Agreement (MTS Systems Corp)
Efforts. In furtherance and not in limitation of their obligations under this Agreement, the Buyer Parties shall, and shall cause their respective Affiliates to, use their respective reasonable best efforts to promptly obtain any clearance, consent, authorization or Order of any Governmental Authority that may be, or become, required under the HSR Act for the consummation of the Merger and to avoid the entry of, or effect the dissolution of, any Order that would otherwise have the effect of preventing or materially delaying the Merger or that would cause the Closing not to occur prior to the Termination Date. In furtherance of the foregoing, the Buyer Parties shall take, and not refrain from taking, and shall cause their respective Affiliates to take and to not refrain from taking, any and all steps necessary to avoid or eliminate each and every impediment under the HSR Act so as to enable the Parties to expeditiously close the Merger prior to the Termination Date. Without limiting the generality of the foregoing, in fulfilling their obligations under this Section 7.2(b), the Buyer Parties shall, and shall cause their respective Affiliates to, proffer to, or agree: (i) to, sell, divest, lease, license, transfer, dispose of or otherwise encumber; or to hold separate pending such disposition, any assets, licenses, operations, rights, product lines, businesses or interest therein of Parent, the Company or any of their respective Affiliates (or to consent thereto); and (ii) to agree to any material changes (including through a licensing arrangement) or restriction on, or other impairment of Parent’s or its Affiliates’ ability to own or operate, any such assets, licenses, operations, rights, product lines, businesses or interests therein or Parent’s or its Affiliates’ ability to vote, transfer, receive dividends or otherwise exercise full ownership rights with respect to the capital stock of the Company or the Surviving Corporation; provided that Parent can compel the Company to (and to cause its Affiliates to) agree to any such term or condition or take any such actions (or agree to take such actions) so long as the effectiveness of such term or condition or action is conditioned upon the consummation of the Offer and the Merger. In furtherance and not in limitation of the foregoing, if and to the Parties shall use their reasonable best efforts extent advisable and necessary to contest obtain the expiration or termination of the waiting period pursuant to the HSR Act and defend against any approvals or consents of each Governmental Authority as set forth on Section 7.1(b) of the entry ofCompany Disclosure Letter, or as soon as reasonably practicable and in any event prior to have vacated, lifted, reversed or overturned, any decree, judgment, injunction or other order, whether temporary, preliminary, or permanent, under any Antitrust Law that would restrain, prevent or delay the Closing on or before the Termination Date, including defending through litigation each of Parent and Merger Sub shall (and shall cause their respective controlled Affiliates to) (i) offer, negotiate, commit to and effect, by consent decree, hold separate order or otherwise, (A) the sale, divestiture, license or other disposition of any and all of the capital stock, share capital or other equity or voting interest, assets (whether tangible or intangible), rights, properties, products or businesses of Parent and Merger Sub (and their respective controlled Affiliates, if applicable), on the merits one hand, and the Company and its Subsidiaries, on the other hand; and (B) any claim asserted other restrictions on the activities of Parent and Merger Sub (and their respective controlled Affiliates, if applicable), on the one hand, and the Company and its Subsidiaries, on the other hand; and (ii) contest, defend and appeal any Legal Proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger; provided, however, that, notwithstanding anything in the Agreement or this Section 6.2(b) to the contrary, nothing in this Agreement shall limit the obligation of Parent and Merger Sub to, and Parent and Merger Sub hereby agree that they shall, and shall cause each of their respective controlled Affiliates to, take any court and all steps necessary to eliminate each and every impediment under any Antitrust Laws, Foreign Investment Laws or other Legal Restraints to consummate the Merger and the other transactions contemplated hereby prior to the Termination Date; provided however, that in no event shall Parent, Merger Sub or their respective Affiliates be required to (and the Company and its Subsidiaries and controlled Affiliates shall not, without Parent’s prior written consent) take any of the actions described in this Section 6.2(b) if they would have a material adverse impact on (x) the business or assets of Parent, Merger Sub and their respective controlled Affiliates (taken as a whole), on the one hand or (y) the business or assets of the Company and its Subsidiaries (taken as a whole), on the other hand; provided, further, that Parent and Merger Sub shall not be obligated to take or agree to take any action with respect to the Company or its Subsidiaries the effectiveness of which is not conditioned on the Closing occurring. In no event shall Parent, Merger Sub or their respective Affiliates be required to agree to obtain prior approval or other approval from a Governmental Authority, or submit a notification or otherwise notify a Governmental Authority, prior to consummating any future transaction (other than the transactions contemplated by this Agreement).
Appears in 1 contract
Efforts. In furtherance (a) Subject to the terms and not conditions of this Agreement, each of the Company and the Purchaser shall, and the Company shall cause its Subsidiaries to, use their commercially reasonable efforts (i) to take, or cause to be taken, all actions necessary, proper or advisable to consummate the transactions contemplated by this Agreement and the other Transaction Agreements and (ii) to obtain (and to cooperate with the other party to obtain) any consent, authorization, order or approval of, or any exemption by, any Governmental Entity and any other third party which is required to be obtained by the Company, any of its Subsidiaries or the Purchaser in limitation connection with the transactions contemplated by this Agreement and the other Transaction Agreements.
(b) Subject to the terms and conditions of their obligations under this Agreement, each of the Company and the Purchaser agrees to use commercially reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, all things necessary, proper or advisable to consummate and make effective, as soon as practicable after the date of this Agreement, the Buyer Parties shalltransactions contemplated hereby and by the other Transaction Agreements, and shall cause their respective Affiliates to, use their respective including using commercially reasonable best efforts to promptly obtain any clearance, consent, authorization or Order of any Governmental Authority that may be, or become, required under the HSR Act for the consummation of the Merger and to avoid the entry of, or effect the dissolution of, any Order that would otherwise have the effect of preventing or materially delaying the Merger or that would cause the Closing not to occur prior to the Termination Date. In furtherance of the foregoing, the Buyer Parties shall take, and not refrain from taking, and shall cause their respective Affiliates to take and to not refrain from taking, any and all steps necessary to avoid or eliminate each and every impediment under the HSR Act so as to enable the Parties to expeditiously close the Merger prior to the Termination Date. Without limiting the generality of the foregoing, in fulfilling their obligations under this Section 7.2(b), the Buyer Parties shall, and shall cause their respective Affiliates to, proffer to, or agree: (i) toin the case of the Company, sellmodify or amend any contracts, divest, lease, license, transfer, dispose of plans or otherwise encumber; or arrangements to hold separate pending such disposition, any assets, licenses, operations, rights, product lines, businesses or interest therein of Parent, which the Company or any of its Subsidiaries is a party (to the extent permitted by the terms thereof) if necessary in order to satisfy the conditions to closing set forth in Article VII hereof, (ii) lift or rescind any injunction or restraining order or other Order adversely affecting the ability of the parties to consummate the transactions contemplated hereby or by the other Transaction Agreements, and (iii) defend any litigation seeking to enjoin, prevent or delay the consummation of the transactions contemplated hereby or by the other Transaction Agreements or seeking material damages.
(c) From and after the Initial Closing Date, subject to the terms and conditions of this Agreement, the Company and the Purchaser shall, and each shall cause the Company and its Subsidiaries to, use their respective Affiliates commercially reasonable efforts (i) to take, or cause to consent thereto); be taken, all actions necessary, proper or advisable to consummate the transactions, perform the obligations and satisfy the conditions contemplated by this Agreement and the other Transaction Agreements to be taken, performed or satisfied following the Initial Closing Date and (ii) to agree obtain or maintain the effectiveness of (and to cooperate with the other party to obtain and continue the effectiveness of) any material changes (including through a licensing arrangement) consent, authorization, order or restriction onapproval of, or other impairment of Parent’s or its Affiliates’ ability to own or operateany exemption by, any such assets, licenses, operations, rights, product lines, businesses Governmental Entity and any other third party which is required to be obtained by or interests therein or Parent’s or its Affiliates’ ability to vote, transfer, receive dividends or otherwise exercise full ownership rights maintained in effect following the Initial Closing Date with respect to the capital stock Company, any of the Company its Subsidiaries or the Surviving Corporation; provided that Parent can compel the Company to (and to cause its Affiliates to) agree to any such term or condition or take any such actions (or agree to take such actions) so long as the effectiveness of such term or condition or action is conditioned upon the consummation of the Offer and the Merger. In furtherance and not Purchaser in limitation of the foregoing, the Parties shall use their reasonable best efforts to contest and defend against the entry of, or to have vacated, lifted, reversed or overturned, any decree, judgment, injunction or other order, whether temporary, preliminary, or permanent, under any Antitrust Law that would restrain, prevent or delay the Closing on or before the Termination Date, including defending through litigation on the merits any claim asserted in any court connection with respect to the transactions contemplated by this AgreementAgreement and the other Transaction Agreements.
Appears in 1 contract
Efforts. In furtherance (a) Subject to the terms and not in limitation conditions of their obligations under this Agreement, the Buyer Parties shallCompany and Parent shall take, or cause to be taken, all actions and shall to do, or cause their respective Affiliates toto be done, use their respective reasonable best efforts all things necessary, proper or advisable under Applicable Law to consummate the Transactions as soon as reasonably possible (and in any event prior to the End Date), including (i) preparing and filing as promptly obtain any clearance, consent, authorization or Order of as practicable with any Governmental Authority or other third party all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents and (ii) obtaining and maintaining all approvals, consents, registrations, permits, authorizations and other confirmations required to be obtained from any Governmental Authority or other third party that may beare necessary, proper or become, required advisable to consummate the Transactions. The parties hereto understand and agree that the obligations of Parent under the HSR Act for the consummation of the Merger and to avoid the entry of, or effect the dissolution of, any Order that would otherwise have the effect of preventing or materially delaying the Merger or that would cause the Closing not to occur prior to the Termination Date. In furtherance of the foregoing, the Buyer Parties shall take, and not refrain from this Section 8.01 include taking, and shall cause their respective Affiliates causing its Subsidiaries to take and to not refrain from takingtake, any and all steps actions necessary or appropriate to avoid or eliminate each and every impediment under the HSR Act any Applicable Law or otherwise so as to enable the Parties consummation of the Transactions to expeditiously close the Merger occur as soon as reasonably possible (and in any event prior to the Termination End Date. Without limiting the generality of the foregoing, in fulfilling their obligations under this Section 7.2(b), the Buyer Parties shall, and shall cause their respective Affiliates to, proffer to, or agreeincluding: (iA) toentering into any settlement, sellundertaking, divestconsent decree, leasestipulation or agreement with or required by any Governmental Authority in connection with the Transactions; (B) proposing, licensenegotiating, transfercommitting to and effecting, dispose of or otherwise encumber; or to by consent decree, hold separate pending such dispositionorder or otherwise, any assetsthe sale, licenses, operations, rightsdivestiture or disposition of businesses, product lines, businesses lines or interest therein assets of Parent, any of its Subsidiaries, or those of the Company or any of their respective Affiliates its Subsidiaries; (C) terminating existing relationships, contractual rights or to consent theretoobligations of Parent or its Subsidiaries (including those of the Company and each of its Subsidiaries); and (iiD) otherwise taking or committing to agree to any material changes (including through a licensing arrangement) or restriction on, or other impairment of take actions that after the Closing would limit Parent’s or its AffiliatesSubsidiaries’ ability to own or operate, any such assets, licenses, operations, rights, product lines, businesses or interests therein or Parent(including the Company’s or its Affiliates’ Subsidiaries’) freedom of action with respect to, or its ability to voteretain or exercise rights of ownership or control with respect to, transferone or more of the businesses, receive dividends product lines or assets of Parent or its Subsidiaries (including the Company or any of its Subsidiaries) (each of the foregoing described in any of Section 8.01(a)(A) through (D), a “Regulatory Concession”); (E) defending any action, suit or proceeding (including by appeal if necessary) that challenges any of the Transactions or the other Transaction Documents or which would otherwise exercise full ownership rights prohibit, materially delay or materially impair the consummation of the Transactions or the other Transaction Documents; and (F) seeking to have lifted, vacated or reversed any stay, injunction, temporary restraining order or other restraint entered by any Governmental Authority with respect to this Agreement or the capital stock Transactions. If requested by Parent, the Company and each of its Subsidiaries shall agree to any Regulatory Concession; provided that none of the Company or the Surviving Corporation; provided that Parent can compel the Company Company’s Subsidiaries shall be required to (and to cause its Affiliates to) agree to any such term or condition or take any such actions (or agree to take such actions) so long as the effectiveness of such term or condition or action Regulatory Concession that is not conditioned upon the consummation of the Offer Transactions; provided further that, notwithstanding anything contained in this Agreement to the contrary, nothing in this Section 8.01 or any other provision of any Transaction Document shall require Parent to accept any Regulatory Concessions (including, solely for purposes of this proviso, with respect to (i) any investment fund, investment vehicle, or management or advisory entity managed by, advised by, managing, advising, or affiliated with Parent; or (ii) any portfolio company (as such term is commonly understood in the private equity industry) or other investment of any such investment fund, investment vehicle, or management or advisory entity) other than with respect to Parent and Parent’s Subsidiaries (including Merger Sub, the Merger. Company and its Subsidiaries).
(b) In furtherance and not in limitation of the foregoing, each of Parent and the Parties Company shall (and Parent shall cause its Affiliates to) (i) 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 practicable and in any event within ten (10) Business Days after the date hereof and (ii) make or cause to be made all necessary registrations, declarations, notices, or filings required under the Antitrust Laws in the jurisdictions set forth on Section 8.01(b) of the Company Disclosure Schedule as promptly as practicable. Each of Parent and the Company shall respond as promptly as practicable to any inquiries received from any Governmental Authority for additional information and documentary material that may be requested pursuant to the HSR Act and to use their reasonable best efforts to contest take all other actions necessary to cause the expiration or termination of the applicable waiting periods under the HSR Act as soon as practicable. Each party hereto shall (i) notify the other parties of any substantive communication to that party from any Governmental Authority, and, subject to Applicable Law, permit the other parties to review and defend against discuss in advance, and consider in good faith the entry of, or to have vacated, lifted, reversed or overturnedviews of the other party in connection with, any decreeproposed written communication to any Governmental Authority, judgment(ii) promptly furnish the other parties with copies of all correspondence, injunction or other orderfilings and written communications between it and its Representatives, whether temporary, preliminary, or permanent, under any Antitrust Law that would restrain, prevent or delay the Closing on or before the Termination Date, including defending through litigation on the merits any claim asserted in any court one hand, and such Governmental Authority, on the other hand, with respect to this Agreement and the transactions contemplated Transactions, (iii) not agree to participate in any substantive meeting or discussion with any Governmental Authority in respect of any filings, investigation or inquiry concerning any competition or antitrust matters in connection with this Agreement or the Transactions 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 thereat and (iv) furnish the other parties with copies of all correspondence, filings, and communications (and memoranda setting forth the substance thereof) between them and their Affiliates and their respective Representatives on the one hand, and any Governmental Authority or members or their respective staffs on the other hand, with respect to any competition or antitrust matters in connection with this Agreement. Any materials contemplated for exchange in connection with this Section 8.01 may be withheld as necessary to address reasonable privilege, sensitive information or confidentiality concerns, or redacted to remove references concerning valuation or other competitively sensitive material, and the parties may, as they deem advisable and necessary, designate any materials provided to the other under this Section 8.01 as “outside counsel only.”
(c) Parent will (i) determine the timing and strategy and be responsible for the content of any substantive oral or written communications with any applicable Governmental Authority, and (ii) lead all proceedings and activities, in each such case under clauses (i) and (ii) with respect to seeking actions, consents, approvals or waivers of any Governmental Authority under the HSR Act; provided, however, that the foregoing shall be reasonably designed to obtain all required actions, consents, approvals and waivers of all Governmental Authorities under the HSR Act at least ten (10) Business Days prior to the End Date and Parent shall reasonably consult with the Company and in good faith consider its views regarding the foregoing.
(d) Parent shall cause Sponsor and each of its Affiliates to take all actions as are necessary or appropriate to file or cause to be filed all documentation, notifications, submissions or filings as are described in this Section 8.01 by the dates or within the periods specified therein.
Appears in 1 contract
Efforts. In furtherance and not Notwithstanding anything to the contrary set forth in limitation of their obligations under this Agreement, it is the Buyer Parties shall, and shall cause their respective Affiliates to, use their respective reasonable best efforts to promptly obtain any clearance, consent, authorization or Order of any Governmental Authority that may be, or become, required under the HSR Act for the consummation intention of the Merger and to avoid the entry of, or effect the dissolution of, Parties that any Order that would otherwise have the effect of preventing or materially delaying the Merger or that would cause the Closing not to occur prior to the Termination Date. In furtherance of the foregoing, the Buyer Parties shall take, and not refrain from taking, and shall cause their respective Affiliates to take and to not refrain from taking, any and all steps necessary to avoid or eliminate each and every impediment under the HSR Act so as to enable the Parties to expeditiously close the Merger prior to the Termination Date. Without limiting the generality of the foregoing, in fulfilling their obligations under this Section 7.2(b), the Buyer Parties shall, and shall cause their respective Affiliates to, proffer to, or agree: (i) to, sell, divest, lease, license, transfer, dispose of or otherwise encumber; or to hold separate pending such disposition, any assets, licenses, operations, rights, product lines, businesses or interest therein of Parent, the Company or any of their respective Affiliates (or to consent thereto); and (ii) to agree to any material changes (including through a licensing arrangement) or restriction on, or other impairment of Parent’s or its Affiliates’ ability to own or operate, any such assets, licenses, operations, rights, product lines, businesses or interests therein or Parent’s or its Affiliates’ ability to vote, transfer, receive dividends or otherwise exercise full ownership rights actions taken with respect to the capital stock of Product shall be exercised by Buyer and its Affiliates in accordance with their own business judgment and in their sole and absolute discretion. Accordingly, the Company or the Surviving Corporation; provided that Parent can compel the Company to following shall apply (and to cause Seller hereby acknowledges, understands and agrees as follows):
(i) Buyer and its Affiliates to) agree to any such term or condition or take any such actions (or agree to take such actions) so long as the effectiveness of such term or condition or action is conditioned upon the consummation of the Offer shall have complete control and the Merger. In furtherance and not in limitation of the foregoing, the Parties shall use their reasonable best efforts to contest and defend against the entry of, or to have vacated, lifted, reversed or overturned, any decree, judgment, injunction or other order, whether temporary, preliminary, or permanent, under any Antitrust Law that would restrain, prevent or delay the Closing on or before the Termination Date, including defending through litigation on the merits any claim asserted in any court sole discretion with respect to the transactions contemplated Product and such control and discretion over sales by Buyer and its Affiliates could result in Seller receiving no Contingent Payments whatsoever; (ii) neither Buyer nor any of its Affiliates has any duty to achieve the Milestone Event, to exert any level of efforts in achieving the Milestone Event or to generate the Contingent Payment; (iii) whether or not Buyer or any of its Affiliates achieve the Milestone Event, neither Buyer nor any of its Affiliates is prohibited from pursuing or exploiting any other products that may compete with the Product; (iv) personnel of Buyer and its Affiliates are only required to take actions in connection with the Product that such personnel believe to be in the best interests of Buyer and its Affiliates and that they are not required to take into account the interests of Seller at all; and (v) Seller shall not challenge in any subsequent Action any decision regarding the Product made by any director, officer, employee or agent of Buyer or any of its Affiliates in what such individual subjectively believes to be the best interests of Buyer (or such Affiliate), unless such action or decision constitutes a breach by Buyer of any of its express obligations to make payments under this AgreementSection 2.05. Notwithstanding the foregoing, Buyer will not, and each of its Affiliates and each Milestone Party will not, intentionally take any commercially unreasonable action, or intentionally omit to take any commercially reasonable action, the primary purpose of which is to avoid or frustrate the occurrence of the Milestone Event or payment of the Contingent Payment.
Appears in 1 contract
Efforts. In furtherance The Rollover Investor shall cooperate with Topco and not in limitation of their obligations under this Agreement, the Buyer Parties shall, its Affiliates and shall cause their respective Affiliates to, use their respective 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 to consummate and make effective the Transactions, including to (i) comply promptly with all legal requirements which may be imposed on it with respect to the Merger Agreement, the Transactions, this Agreement and the Rollover, including, subject to Section 7 below, furnishing all information required by applicable Law in connection with any approvals or filings with any Governmental Authority, (ii) obtain any clearanceapprovals of, consentor any exemption by, authorization or Order negative clearance from, or the expiration or early termination of any waiting period imposed by, any Governmental Authority that may beor other public or private third party strictly required to be obtained or made by the Company, Topco, Merger Sub or become, required under the HSR Act for the consummation of the Merger and to avoid the entry of, or effect the dissolution of, any Order that would otherwise have the effect of preventing or materially delaying the Merger or that would cause the Closing not to occur prior to the Termination Date. In furtherance of the foregoing, the Buyer Parties shall take, and not refrain from taking, and shall cause their respective Affiliates to take and to not refrain from taking, any and all steps necessary to avoid or eliminate each and every impediment under the HSR Act so as to enable the Parties to expeditiously close the Merger prior to the Termination Date. Without limiting the generality of the foregoing, in fulfilling their obligations under this Section 7.2(b), the Buyer Parties shall, and shall cause their respective Affiliates to, proffer to, or agree: (i) to, sell, divest, lease, license, transfer, dispose of or otherwise encumber; or to hold separate pending such disposition, any assets, licenses, operations, rights, product lines, businesses or interest therein of ParentAffiliates, the Company or its Subsidiaries in connection with the Transactions or the Rollover or the taking of any of their respective Affiliates (action contemplated by the Merger Agreement or to consent thereto); this Agreement and (iiiii) to agree to any material changes (including through a licensing arrangement) or restriction on, or other impairment effect all registrations and filings strictly necessary for the operation of Parent’s or its Affiliates’ ability to own or operate, any such assets, licenses, operations, rights, product lines, businesses or interests therein or Parent’s or its Affiliates’ ability to vote, transfer, receive dividends or otherwise exercise full ownership rights with respect to the capital stock business of the Company or the Surviving Corporationand its Subsidiaries; provided that Parent can compel none of the Company to (and to cause Rollover Investor or any of its Affiliates to) agree shall have any obligation to give any such term guarantee or condition or take pay any such actions (or agree to take such actions) so long as the effectiveness of such term or condition or action is conditioned upon the consummation of the Offer and the Merger. In furtherance and not in limitation of the foregoing, the Parties shall use their reasonable best efforts to contest and defend against the entry of, or to have vacated, lifted, reversed or overturned, any decree, judgment, injunction consent fee or other order, whether temporary, preliminary, or permanent, under consideration of any Antitrust Law that would restrain, prevent or delay nature in connection with the Closing on or before the Termination Date, including defending through litigation on the merits delivery of any claim asserted in any court with respect approval relating to the transactions contemplated by this Agreement or the Merger Agreement. Notwithstanding any provision in this Agreement or any other agreements with respect to the Transactions to the contrary, including this Section 6, nothing shall require the Rollover Investor or any of its Affiliates or direct or indirect equity holders (including any guarantors) or their respective Affiliates or any investment funds advised or managed by one or more Affiliates of the Rollover Investor (or any related guarantor) or any direct or indirect portfolio companies thereof (excluding, for the avoidance of doubt, the Company and its subsidiaries) to (i) agree or commit to any imposition of any material condition or restriction with respect to any such Person or their respective businesses, product lines or assets or (ii) propose, negotiate, agree, accept, commit to or effect, by consent, decree, hold-separate or administrative order or otherwise, the sale, divesture, disposition, or license of any assets, properties, products, rights, services or businesses of any such Person or its Affiliates or any interest therein, in case of each of (i) and (ii), which are necessary to secure any requisite approvals and authorizations or expiration of waiting periods for effecting the Transactions or the Rollover (or in connection with any other transactions that the Company may propose to undertake or complete at any time and from time to time as contemplated by or permitted under the Merger Agreement and other related transaction documents) under any applicable Laws or to obtain the approval, authorization or exemption of any Governmental Authority (each of the foregoing (i) and (ii) being a “Burdensome Condition”). The Rollover Investor’s obligation to consummate the Rollover is subject to the condition, unless waived in writing by the Rollover Investor in its sole discretion, that neither the Rollover Investor nor any of its Affiliates shall have been required to agree or commit to the imposition of any Burdensome Condition.
Appears in 1 contract
Efforts. In furtherance 6.4.1 Upon the terms and not subject to the conditions set forth in limitation of their obligations under this Agreement, the Buyer Parties each Party hereto shall, and shall cause their respective Affiliates toas promptly as practicable, use their respective reasonable best efforts to (a) cause the conditions to the Closing set forth in this Agreement to be satisfied as promptly obtain as practicable, (b) obtain, or cause to be obtained, all consents, authorizations, orders, approvals, waivers and findings of suitability from, or actions or nonactions by, and to give any clearancenotices to, consent, authorization or Order of any Governmental Authority that may beBody, or becomeincluding any Gaming Licenses and all necessary consents, approvals, waivers, and clearance required under the HSR Act for the consummation of the Merger and to avoid the entry of, or effect the dissolution of, any Order that would otherwise have the effect of preventing or materially delaying the Merger or that would cause the Closing not to occur prior to the Termination Date. In furtherance of the foregoing, the Buyer Parties shall take, and not refrain from taking, and shall cause their respective Affiliates to take and to not refrain from taking, any and all steps necessary to avoid or eliminate each and every impediment under the HSR Act so as to enable the Parties to expeditiously close the Merger prior to the Termination Date. Without limiting the generality of the foregoing, in fulfilling their obligations under this Section 7.2(b), the Buyer Parties shall, and shall cause their respective Affiliates to, proffer to, or agree: (i) to, sell, divest, lease, license, transfer, dispose of or otherwise encumber; or to hold separate pending such disposition, any assets, licenses, operations, rights, product lines, businesses or interest therein of Parent, the Company or any of their respective Affiliates (or to consent thereto); and (ii) to agree to any material changes (including through a licensing arrangement) or restriction on, or other impairment of Parent’s or its Affiliates’ ability to own or operate, any such assets, licenses, operations, rights, product lines, businesses or interests therein or Parent’s or its Affiliates’ ability to vote, transfer, receive dividends or otherwise exercise full ownership rights with respect to the capital stock of the Company or the Surviving Corporation; provided that Parent can compel the Company to (and to cause its Affiliates to) agree to any such term or condition or take any such actions (or agree to take such actions) so long as the effectiveness of such term or condition or action is conditioned upon the consummation of the Offer and the Merger. In furtherance and not in limitation of the foregoing, the Parties shall use their reasonable best efforts to contest and defend against the entry of, or to have vacated, lifted, reversed or overturned, any decree, judgment, injunction or other order, whether temporary, preliminary, or permanent, under any Antitrust Law that would restrain, prevent or delay the Closing on or before the Termination Date, including defending through litigation on the merits any claim asserted in any court Laws with respect to the transactions contemplated by this Agreement, or any third party that may be or become necessary in connection with the consummation of the transactions contemplated by this Agreement and (c) execute and deliver any additional instruments necessary to consummate the transactions to be performed or consummated by such Party in accordance with the terms of this Agreement and to carry out fully the purposes of this Agreement. Each Party shall cooperate fully with the other Party and the other Party’s Affiliates in promptly seeking to obtain all such consents, authorizations, orders and approvals. The Parties shall not willfully take any action that will have the effect of delaying, impairing or impeding the receipt of any required consents, authorizations, orders, approvals, waivers and findings of suitability. Notwithstanding anything to the contrary in this Agreement, in no event shall Buyer or its Affiliates have any obligation to (i) pay or commit to pay any amount or incur any obligation or grant any concession or accommodation (financial or otherwise) in favor of any third party, (ii) offer, agree to or accept any requirement to divest or hold separate or in trust, or the imposition of any other material condition or restriction with respect to, any of Buyer, its Affiliates’ or the Business’ respective businesses, assets or properties (including the Purchased Assets) or (iii) commence or participate in any Action, in each case, in order to obtain any such consent, authorization, order, approval, waiver, finding of suitability, action, nonaction or clearance.
6.4.2 Without limiting the generality of Section 6.4.1, within twenty-five (25) Business Days following the execution of this Agreement, each Party shall file or cause to be filed with the United States Federal Trade Commission (“FTC”) and the United States Department of Justice (“DOJ”), the Premerger Notification and Report Form required for the transactions contemplated hereby pursuant to the HSR Act. Each Party will use its respective reasonable best efforts to promptly respond to all requests from any Governmental Body or Person pursuant to the HSR Act or any other applicable Law relating to competition, merger control, or antitrust (together with the HSR Act, “Antitrust Laws”) as soon as practicable. The Parties will each furnish to the other such information as either may reasonably request to make such filings. The Buyer will be responsible for paying any filing fees with respect to such filings under the HSR Act and, if applicable, other Antitrust Laws. The Parties will each promptly inform the other of any material communication made to, or received by it from, the FTC or DOJ with respect to the HSR filings or such communications in connection with any other Governmental Body or Person. Buyer and Sellers shall be mutually responsible for (i) all substantive communications with any applicable Governmental Body or Person; and (ii) all strategic and timing decisions regarding the HSR Act and other applicable Antitrust Laws approvals, inquiries, investigations, or lawsuits, but if there is a disagreement about antitrust strategy, then Buyer’s decision shall control.
6.4.3 To the extent practicable, all analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals made by or on behalf of any Party before any Governmental Body or the staff or regulators of any Governmental Body, in connection with the transactions contemplated by this Agreement (but, for the avoidance of doubt, not including any interactions between Sellers, or any of their respective Affiliates with Governmental Bodies in the ordinary course of business, any disclosure which is not permitted by ▇▇▇, or any disclosure containing confidential information) shall be disclosed to the other Party hereunder in advance of any filing, submission or attendance, it being the intent that the Parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, meetings, discussions, presentations, memoranda, briefs, filings, arguments, and proposals. Each Party shall, to the extent practicable, give notice to the other Party with respect to any meeting, discussion, appearance or contact with any Governmental Body or the staff or regulators of any Governmental Body, with such notice, to the extent practicable, being sufficient to provide the other Party with the opportunity to attend and participate in such meeting, discussion, appearance or contact.
6.4.4 Each Party shall not, nor shall it permit its Affiliates to, acquire or agree to acquire any rights, assets, business, person or division thereof (through acquisition, license, joint venture, collaboration or otherwise), if such acquisition could reasonably be expected to materially delay obtaining or materially increase the risk of not obtaining any clearance, consent, approval or waiver under the HSR Act and any other Antitrust Laws applicable to the transactions contemplated by this Agreement or otherwise prevent the conditions set forth in Sections 8.1.3, 8.1.5, 8.2.3 and 8.2.4 from being satisfied by the Outside Date.
Appears in 1 contract
Efforts. In furtherance and not in limitation Without limiting the generality of their obligations under this Agreementthe undertakings pursuant to Section 5.2 or Section 5.3(a) but subject to the proviso below, the Buyer Parties shall, and shall cause their respective Affiliates to, B▇▇▇▇ agrees to use their respective its reasonable best efforts to take or cause to be taken promptly obtain any clearance, consent, authorization or Order of any Governmental Authority that may be, or become, required under the HSR Act for the consummation of the Merger and to avoid the entry of, or effect the dissolution of, any Order that would otherwise have the effect of preventing or materially delaying the Merger or that would cause the Closing not to occur prior to the Termination Date. In furtherance of the foregoing, the Buyer Parties shall take, and not refrain from taking, and shall cause their respective Affiliates to take and to not refrain from taking, any and all steps necessary to avoid or eliminate each and every impediment under the HSR Act Antitrust Laws, that may be asserted by any Governmental Entity or any other party, so as to enable the Parties Closing to expeditiously close occur as promptly as practicable, but in no case later than the Merger prior Outside Date, including (i) terminating, relinquishing, modifying, transferring, assigning, restructuring, or waiving existing agreements, collaborations, relationships, ventures, contractual rights, obligations or other arrangements; and (ii) making any other behavioral undertakings and commitments, including creating or consenting to create any relationships, ventures, contractual rights, obligations, or other arrangements; provided that, notwithstanding anything in this Agreement to the Termination Date. Without limiting contrary, none of Buyer or any of its Affiliates shall be required to, and Commave Seller shall cause the generality Azstarys Entities to not, without the prior written consent of Buyer, (x) propose, negotiate, commit to or effect, by consent decree, hold separate orders or otherwise, the sale, divestiture, license or other disposition of any asset, interest or business; (y) take any action, commit to take any action, or agree to any condition or limitation contemplated in this Section 5.3(b): (A) that is not conditioned upon the consummation of the foregoingTransactions or (B) that would, individually or in fulfilling their obligations under this Section 7.2(bthe aggregate, reasonably be expected to have a material adverse effect on the business, financial condition, assets, liabilities, operations or results of operations of Buyer and its Affiliates (including, after the Closing, the Azstarys Entities), taken as a whole, either before or after giving effect to the Buyer Transactions. In addition, each of the Parties shall, and shall cause their respective Affiliates to, proffer tocooperate with each other, or agree: (i) to, sell, divest, lease, license, transfer, dispose of or otherwise encumber; or to hold separate pending such disposition, any assets, licenses, operations, rights, product lines, businesses or interest therein of Parent, the Company or any of their respective Affiliates (or to consent thereto); and (ii) to agree to any material changes (including through a licensing arrangement) or restriction on, or other impairment of Parent’s or its Affiliates’ ability to own or operate, any such assets, licenses, operations, rights, product lines, businesses or interests therein or Parent’s or its Affiliates’ ability to vote, transfer, receive dividends or otherwise exercise full ownership rights with respect to the capital stock of the Company or the Surviving Corporation; provided that Parent can compel the Company to (and to cause its Affiliates to) agree to any such term or condition or take any such actions (or agree to take such actions) so long as the effectiveness of such term or condition or action is conditioned upon the consummation of the Offer and the Merger. In furtherance and not in limitation of the foregoing, the Parties shall use their reasonable best efforts to contest and defend against the entry of, or to have vacated, lifted, reversed or overturned, any decree, judgment, injunction or other order, whether temporary, preliminary, or permanent, under any Antitrust Law that would restrain, prevent or delay the Closing on or before the Termination Date, including defending through litigation in the U.S. on the merits any claim or Action asserted in any court with respect U.S. court, agency or other proceeding by any Person or entity, including any U.S. Governmental Entity, seeking to delay, restrain, prevent, enjoin or otherwise prohibit the Transactions or prevent consummation of the Transactions prior to the transactions contemplated by this AgreementOutside Date.
Appears in 1 contract
Sources: Equity Purchase Agreement (Collegium Pharmaceutical, Inc)
Efforts. In furtherance Upon the terms and not subject to the conditions set forth in limitation of their obligations under this Agreement, Buyer, Holdings and the Buyer Parties shall, and Seller shall cause their respective Affiliates to, use their respective commercially reasonable best efforts to promptly take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other Parties in doing, all things necessary, proper or advisable to consummate and make effective, in the most expeditious manner practicable, the Contemplated Transactions, including (a) the obtaining of all Governmental Consents and the making of all filings, registrations, or declarations, specified in Section 4.5 and Section 5.4 and the taking of all necessary steps to obtain any clearancesuch Governmental Consents and to make such registrations, consent(b) the obtaining of all necessary consents, authorization approvals or Order waivers from, and the provision of notices to third parties, (c) the defending of any Governmental Authority that may beLitigations, whether judicial or becomeadministrative, required under the HSR Act for challenging this Agreement or the consummation of the Merger Contemplated Transactions, including, seeking to have any stay, temporary restraining order or other injunctive relief or Order entered by any court or other Governmental Authority vacated or reversed, and (d) the execution and delivery of any additional instruments necessary to consummate the Contemplated Transactions and to avoid fully carry out the entry ofpurposes of this Agreement; provided, that such efforts shall not require agreeing to any obligations or effect accommodations (financial or otherwise) binding on Buyer, the dissolution of, any Order that would otherwise have Seller or Holdings in the effect of preventing or materially delaying the Merger or that would cause event the Closing does not to occur prior to the Termination Date. In furtherance of the foregoing, the Buyer Parties shall take, and not refrain from taking, and shall cause their respective Affiliates to take and to not refrain from taking, any and all steps necessary to avoid or eliminate each and every impediment under the HSR Act so as to enable the Parties to expeditiously close the Merger prior to the Termination Dateoccur. Without limiting the generality foregoing, none of the foregoing, in fulfilling their obligations under this Section 7.2(b), the Buyer Parties shall, and shall cause their respective Affiliates to, proffer to, or agree: (i) to, sell, divest, lease, license, transfer, dispose of or otherwise encumber; or to hold separate pending such disposition, any assets, licenses, operations, rights, product lines, businesses or interest therein of Parent, the Company or any of their respective Affiliates (or to consent thereto); and (ii) to agree to any material changes (including through a licensing arrangement) or restriction on, or other impairment of Parent’s or its Affiliates’ ability to own or operate, any such assets, licenses, operations, rights, product lines, businesses or interests therein or Parent’s or its Affiliates’ ability to vote, transfer, receive dividends or otherwise exercise full ownership rights with respect to the capital stock of the Company or the Surviving Corporation; provided that Parent can compel the Company to (and to cause its Affiliates to) agree to any such term or condition or take any such actions (or agree to take such actions) so long as the effectiveness of such term or condition or any action is conditioned upon the consummation that could reasonably be expected to result in any of the Offer and the Merger. In furtherance and conditions set forth in Article VII not in limitation of the foregoing, the Parties shall use their reasonable best efforts to contest and defend against the entry of, being satisfied or to have vacated, lifted, reversed or overturned, any decree, judgment, injunction or other order, whether temporary, preliminary, or permanent, under any Antitrust Law that would restrainimpair, prevent or delay the Closing on consummation of the Contemplated Transactions. Notwithstanding anything in this Agreement to the contrary, nothing in this Agreement shall require the Buyer or before any of its Affiliates to (or to offer to): (i) consent to any Order or other agreement providing for the Termination Datesale, including defending through litigation on licensing or other disposition, or the merits holding separate of, or other limitations or restrictions on, particular assets, categories of assets or lines of business of the Companies or the Buyer or any claim asserted in of its Affiliates, (ii) effect any court disposition, licensing or holding separate of assets or lines of business, (iii) terminate any existing relationships and contractual rights and obligations or (iv) take any action that limits the Buyer’s (or any of its Affiliates’) freedom of action with respect to any of the transactions contemplated by this Agreementassets or business of the Buyer or any of its Affiliates or the Companies, or their ability to retain any of their assets or lines of business.
Appears in 1 contract
Sources: Securities Purchase Agreement (Wireless Telecom Group Inc)
Efforts. In furtherance (a) The Buyer acknowledges that certain consents to the transactions contemplated by this Agreement may be required from parties to the Contracts and such consents have not in limitation of their obligations under this Agreement, been obtained. The Buyer agrees the Seller shall not have any liability whatsoever to the Buyer Parties shall, and shall cause their respective Affiliates to, use their respective reasonable best efforts arising out of or relating to promptly the failure to obtain any clearanceconsents that may have been or may be required in connection with the transactions contemplated by this Agreement or because of the default, consent, authorization acceleration or Order termination of any Governmental Authority Contract as a result thereof. The Buyer further agrees that no representation, warranty or covenant of the Seller contained herein shall be breached or deemed breached and no condition of the Buyer shall be deemed not to be satisfied as a result of (i) the failure to obtain any consent or as a result of any such default, acceleration or termination or (ii) any litigation commenced or threatened by or on behalf of any Persons arising out of or relating to the failure to obtain any consent or any such default, acceleration or termination.
(b) With respect to any Contracts that may be, or become, required under not be properly assigned to the HSR Act for the consummation Buyer because of the Merger and failure to avoid the entry of, or effect the dissolution of, any Order that would otherwise have the effect of preventing or materially delaying the Merger or that would cause the Closing not to occur prior to the Termination Date. In furtherance of the foregoing, the Buyer Parties shall take, and not refrain from taking, and shall cause their respective Affiliates to take and to not refrain from taking, any and all steps necessary to avoid or eliminate each and every impediment under the HSR Act so as to enable the Parties to expeditiously close the Merger prior to the Termination Date. Without limiting the generality of the foregoing, in fulfilling their obligations under this Section 7.2(bobtain a required consent ("NONTRANSFERABLE CONTRACTS"), the Buyer shall indemnify, defend and hold harmless the Seller Indemnified Parties shall, from and shall cause their respective Affiliates to, proffer to, or agree: (i) to, sell, divest, lease, license, transfer, dispose against any Losses that the Seller may have in connection with such Nontransferable Contracts as a result of or otherwise encumber; or to hold separate pending such disposition, any assets, licenses, operations, rights, product lines, businesses or interest therein of Parent, the Company or any of their respective Affiliates (or to consent thereto); and (ii) to agree to any material changes (including through a licensing arrangement) or restriction on, or other impairment of Parent’s or its Affiliates’ ability to own or operate, any such assets, licenses, operations, rights, product lines, businesses or interests therein or Parent’s or its Affiliates’ ability to vote, transfer, receive dividends or otherwise exercise full ownership rights with respect to the capital stock of the Company or the Surviving Corporation; provided that Parent can compel the Company to (and to cause its Affiliates to) agree to any such term or condition or take any such actions (or agree to take such actions) so long as the effectiveness of such term or condition or action is conditioned upon the consummation of the Offer and the Merger. In furtherance and not in limitation of the foregoing, the Parties shall use their reasonable best efforts to contest and defend against the entry of, or to have vacated, lifted, reversed or overturned, any decree, judgment, injunction or other order, whether temporary, preliminary, or permanent, under any Antitrust Law that would restrain, prevent or delay the Closing on or before the Termination Date, including defending through litigation on the merits any claim asserted in any court with respect to the transactions contemplated by this Agreement.
(c) With respect to any Nontransferable Contract with respect to which the Seller and the Buyer are unable to obtain a separate agreement between the Buyer and the other party or parties, the Buyer shall have the right to require that the Seller use reasonable efforts to perform any such Nontransferable Contract, to the extent it relates to the Business, as agent for and for the account of the Buyer, for a period up to one month following the Closing Date; PROVIDED, that the Buyer shall reimburse, indemnify and hold the Seller harmless for any and all costs, expenses, losses and liabilities incurred by the Seller in connection with taking such action.
Appears in 1 contract
Efforts. In furtherance Parent and not in limitation of their obligations under this Agreement, the Buyer Parties shall, and Company shall cause their respective Affiliates to, use their respective 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 reasonably practicable. Without limiting the generality of the foregoing, each party to this Agreement: (i) shall make all filings (if any) and give all notices (if any) required to be made and given by such party in connection with the Merger and the other transactions contemplated by this Agreement; and (ii) shall use reasonable best efforts to obtain each Consent (if any) required to be obtained (pursuant to any applicable Legal Requirement or Contract, or otherwise) by such party in connection with the Merger or any of the other transactions contemplated by this Agreement. For purposes of this Section 5.1(b), “reasonable best efforts” shall include (i) solely to the extent necessary to obtain any clearance, consent, authorization or Order of any Governmental Authority that may be, or become, required Authorization under the HSR Act for or any applicable antitrust or competition laws or regulations in connection with the consummation Merger, (A) executing settlements, undertakings, consent decrees, stipulations or other agreements, (B) selling, divesting, holding separate or otherwise conveying any particular assets or categories of assets or businesses of Parent, the Merger Company and each of their affiliates, (C) agreeing to sell, divest, hold separate or otherwise convey any particular assets or categories of assets or businesses contemporaneously with or subsequent to the Closing, (D) permitting Parent, the Surviving Corporation, and/or the Company to sell, divest or otherwise convey any particular assets or categories of assets or properties of Parent, the Surviving Corporation or the Company or their respective subsidiaries prior to the Closing, and (E) otherwise taking or committing to take actions that after the Closing Date would limit the freedom of action of Parent or the Surviving Corporation (including after the Closing) with respect to, or its or their ability to retain, one or more of its or their businesses, product lines or assets; and (ii) defending through litigation on the merits any claim asserted in court by any Person, in each case as may be required in order to avoid the entry of, or to effect the dissolution of, any Order that injunction, temporary restraining order or other order in any suit or proceeding which would otherwise have the effect of preventing or materially delaying the Merger or Closing; provided that would cause any such action required by this Section 5.1(b) is conditioned on the Closing not to occur prior to the Termination Date. In furtherance consummation of the foregoing, the Buyer Parties Merger. The Company shall take, and not refrain from takingnot, and shall cause their respective Affiliates each other Acquired Company to take and to not refrain from takingnot, without the written consent of Parent, publicly or before any and all steps necessary to avoid Governmental Body or eliminate each and every impediment under the HSR Act so as to enable the Parties to expeditiously close the Merger prior to the Termination Date. Without limiting the generality of the foregoingother third party, in fulfilling their obligations under this Section 7.2(b)offer, the Buyer Parties shallsuggest, propose or negotiate, and shall cause their respective Affiliates tonot commit to or effect, proffer toby consent decree, or agree: (i) to, sell, divest, lease, license, transfer, dispose of or otherwise encumber; or to hold separate pending such order or otherwise, any sale, divestiture, disposition, any assets, licenses, operations, rights, product lines, businesses prohibition or interest therein of Parent, the Company or any of their respective Affiliates (or to consent thereto); and (ii) to agree to any material changes (including through a licensing arrangement) or restriction on, limitation or other impairment action of Parent’s or its Affiliates’ ability to own or operate, any such assets, licenses, operations, rights, product lines, businesses or interests therein or Parent’s or its Affiliates’ ability to vote, transfer, receive dividends or otherwise exercise full ownership rights with respect to the capital stock of the Company or the Surviving Corporation; provided that Parent can compel the Company to (and to cause its Affiliates to) agree to any such term or condition or take any such actions (or agree to take such actions) so long as the effectiveness of such term or condition or action is conditioned upon the consummation of the Offer and the Merger. In furtherance and not a type described in limitation of the foregoing, the Parties shall use their reasonable best efforts to contest and defend against the entry of, or to have vacated, lifted, reversed or overturned, any decree, judgment, injunction or other order, whether temporary, preliminary, or permanent, under any Antitrust Law that would restrain, prevent or delay the Closing on or before the Termination Date, including defending through litigation on the merits any claim asserted in any court with respect to the transactions contemplated by this AgreementSection 5.1(b).
Appears in 1 contract
Sources: Merger Agreement (Compass Group Diversified Holdings LLC)
Efforts. In furtherance Buyer shall use commercially reasonable efforts (without the obligation to incur any undue expense) to assume and not in limitation perform all of their the obligations under this Agreementthe Transferred Rights, Obligations and Agreements. To the Buyer Parties shall, and shall cause their respective Affiliates to, use their respective reasonable best efforts to promptly obtain any clearance, consent, authorization extent that the assignment or Order novation of any Governmental Authority that may beof the Transferred Rights, Obligations and Agreements, or becomethe assignment under §2.1 above, required under shall require the HSR Act for consent of any other party (or in the consummation event that any of the Merger and to avoid same shall be non-assignable), neither the entry of, or effect the dissolution of, agreements contemplated by this Agreement nor any Order that would otherwise have the effect of preventing or materially delaying the Merger or that would cause the Closing not to occur prior actions taken hereunder pursuant to the Termination Dateprovisions of any such agreements shall constitute an assignment or novation or an agreement to assign or novate if such assignment or novation or attempted assignment or novation would constitute a breach thereof or result in the loss or diminution thereof; provided, however, that in each such case, D▇▇▇ and Buyer shall use commercially reasonable efforts (without the obligation to incur any undue expense) to obtain the consent of such other party to an assignment or novation to Buyer. In furtherance of Notwithstanding the foregoing, it shall be a condition to closing that any consents required for the assignment of the Transferred Rights, Obligations and Agreements designated by Buyer Parties shall takehave been obtained on terms and conditions satisfactory to Buyer, in its reasonable discretion. If such consent is not obtained, D▇▇▇ shall cooperate with Buyer in any reasonable arrangement designed to provide Buyer with the benefits under any such Transferred Rights, Obligations and not refrain from takingAgreements, including appointing Buyer to act as its agent to perform all of Dana’s obligations under such Transferred Rights, Obligations and shall cause their respective Affiliates to take Agreements and to not refrain from takingcollect and promptly remit to Buyer all compensation payable pursuant to those Transferred Rights, Obligations and Agreements and to enforce, for the account and benefit of Buyer, any and all steps necessary to avoid rights of D▇▇▇ against any other person arising out of the breach or eliminate each cancellation of such Transferred Rights, Obligations and every impediment under Agreements by such other person or otherwise (any and all of which arrangements shall constitute, as between the HSR Act so as to enable the Parties to expeditiously close the Merger prior parties hereto, a deemed assignment or transfer); provided that, to the Termination Date. Without limiting the generality extent that Buyer requires D▇▇▇ to undertake any services or take any actions in furtherance of the foregoingperformance of such Transferred Rights, in fulfilling their obligations under this Section 7.2(b), the Buyer Parties shall, Obligations and shall cause their respective Affiliates to, proffer to, or agree: (i) to, sell, divest, lease, license, transfer, dispose of or otherwise encumber; or to hold separate pending such disposition, any assets, licenses, operations, rights, product lines, businesses or interest therein of Parent, the Company or any of their respective Affiliates (or to consent thereto); and (ii) to agree to any material changes (including through a licensing arrangement) or restriction on, or other impairment of Parent’s or its Affiliates’ ability to own or operateAgreements, any such assetsservices or actions shall be the subject of a separate agreement that the parties shall, licensesin good faith, operations, rights, product lines, businesses or interests therein or Parent’s or its Affiliates’ ability to vote, transfer, receive dividends or otherwise exercise full ownership rights with respect negotiate as promptly as possible and which shall be mutually acceptable to the capital stock parties. Each party shall be responsible for all of its costs and expenses incurred by it in connection with the Company or the Surviving Corporation; provided that Parent can compel the Company to (and to cause its Affiliates to) agree to any such term or condition or take any such actions (or agree to take such actions) so long as the effectiveness required of such term or condition or action is conditioned upon the consummation of the Offer and the Merger. In furtherance and not in limitation of the foregoing, the Parties shall use their reasonable best efforts to contest and defend against the entry of, or to have vacated, lifted, reversed or overturned, any decree, judgment, injunction or other order, whether temporary, preliminary, or permanent, it under any Antitrust Law that would restrain, prevent or delay the Closing on or before the Termination Date, including defending through litigation on the merits any claim asserted in any court with respect to the transactions contemplated by this Agreement§2.15.
Appears in 1 contract