Further Action; Efforts. (a) Upon the terms and subject to the conditions of this Agreement, each of the parties shall use its reasonable best efforts to (i) take, or cause to be taken, all actions and to do, or cause to be done, and cooperate with each other in order to do, all things necessary, proper or advisable (including under any Antitrust Law or Foreign Merger Control Law, including in connection with any filing relating to CFIUS, and including obtaining all approvals, consents, waivers of any third party necessary, proper or advisable) to consummate the transactions contemplated by this Agreement as soon as practicable, (ii) do all things necessary, proper or advisable under applicable laws and regulations to consummate the Merger and the other transactions contemplated by this Agreement as soon as practicable, including: (A) causing the preparation and filing of all forms, registrations and notices required to be filed to consummate the Merger and the taking of such actions as are necessary to obtain any requisite consent or approval, or expiration of any applicable waiting period under, the HSR Act, any applicable Antitrust Law or any applicable Foreign Merger Control Law or with respect to CFIUS and (B) using reasonable best efforts to defend all lawsuits and other proceedings by or before any Governmental Entity challenging this Agreement or the consummation of the Merger and (iii) resolve any objection asserted with respect to the transactions contemplated under this Agreement under any Antitrust Law or Foreign Merger Control Law raised by any Governmental Entity and to prevent the entry of any court order, and to have vacated, lifted, reversed or overturned any injunction, decree, ruling, order or other action of any Governmental Entity that would prevent, prohibit, restrict or delay the consummation of the transactions contemplated by this Agreement. Notwithstanding anything to the contrary set forth in this Agreement, in no event shall Parent or Merger Sub be obligated pursuant to this Agreement to, and the Company shall not without the written consent of Parent, divest or hold separate any assets or to take or commit to take any action which would be reasonably likely to (i) materially adversely impact the benefits expected to be derived by Parent, as a result of the transactions contemplated by this Agreement or (ii) impose material limitations on Parent’s ownership or operation (or that of any of Parent’s subsidiaries or affiliates) of all or a material portion of the Company’s business or assets. (b) In furtherance and not in limitation of the provisions of Section 6.8(a), each of the parties, as applicable, agrees to prepare and file as promptly as reasonably practicable, (A) and in any event by no later than fifteen (15) Business Days from the date of this Agreement (i) an appropriate Notification and Report Form pursuant to the HSR Act, (ii) an appropriate notification form pursuant to the requirements of the Canadian Competition Act, as amended and (iii) an appropriate notification form pursuant to the requirements of Brazil Antitrust Law of June 11, 1994, as amended, and any regulations and resolutions promulgated in connection therewith, and (iv) any draft filings, notifications or reports required under the EUMR and (B) to the extent required, any initial filings, notifications or reports required under the jurisdictions set forth on Section 7.1(b) of the Company Disclosure Schedule. Parent shall pay all filing fees for the filings required under the HSR Act by the Company and Parent. (c) The parties shall keep each other apprised of the status of significant matters relating to the completion of the transactions contemplated by this Agreement and work cooperatively in connection with obtaining the approvals of or clearances from each applicable Governmental Entity, including: (i) cooperating with each other in connection with filings required to be made by any party under any Antitrust Law or Foreign Merger Control Law and coordinating with each other in relation to each step of the procedure before the relevant Governmental Entities and as to the contents of all material communications with such Governmental Entities. In particular, to the extent permitted by law or Governmental Entity, no party will make any material notification to any Governmental Entity in relation to the transactions contemplated hereunder without first providing the other party with a copy of such notification in draft form and giving such other party a reasonable opportunity to discuss its content before it is filed with the relevant Governmental Entities, and such first party shall consider and take account of all reasonable comments timely made by the other party in this respect; (ii) furnishing, to the extent permitted by law, to the other party all necessary information that the other party may reasonably request in connection with filings required to be made by such other party under Antitrust Laws and Foreign Merger Control Laws; and (iii) promptly notifying each other of any material communications from or with any Governmental Entity with respect to the transactions contemplated by this Agreement and ensuring to the extent permitted by law or Governmental Entity that each of the parties is given the opportunity to attend any meetings with or other appearances before any Governmental Entity with respect to the transactions contemplated by this Agreement. (d) Parent will, as promptly as practicable after the date hereof, commence discussions with the CFIUS staff regarding the transactions contemplated by this Agreement, and Parent and the Company will as promptly as practicable after the date hereof cooperate to prepare the notice pursuant to the Exon-Xxxxxx Amendment to be used if Parent deems such filing necessary. For the avoidance of doubt, Parent and the Company shall commence preparation of such notice prior to receipt of or any guidance on a final determination, if any, from the CFIUS staff, and, so long as the Company timely provides all reasonable cooperation in connection therewith, including providing all information reasonably necessary for the preparation of a draft joint notice, Parent shall within twenty (20) Business Days of the date hereof either (i) provide the initial draft joint notice pursuant to the Exon-Xxxxxx Amendment to the CFIUS staff, if Parent deems such filing necessary or (ii) notify the Company that it does not deem such filing necessary. (e) The Company shall give prompt notice to Parent and Merger Sub, and copies of any correspondence to or from the FDA, any Foreign Regulatory Entity or Healthcare Governmental Entity containing substantive, factual or legal issues that relate to the compliance status of the Company or any of its subsidiaries and/or any of their respective products or otherwise provide the other party with reasonable information or respond to reasonable requests for information with respect to such matters. The Company shall give due consideration, following reasonable prior notice to Parent, to any advice from Parent as to how to respond to any material correspondence from the FDA, any Foreign Regulatory Entity or Healthcare Governmental Entity or with respect to any other material submissions to any of the foregoing. If the Company is invited to participate in any meeting with the FDA with respect to the letter received on May 5, 2011, any warning letter, untitled letter, notice of violation letter, FDA establishment inspection close-out, recall, or any enforcement action initiated by FDA, or invited to participate in any meeting with any Foreign Regulatory Entity pertaining to similar matters, then the Company shall give Parent reasonable prior notice of such meeting and invite one outside representative of Parent (designated by Parent and who is qualified as a subject matter expert reasonably acceptable to the Company) to attend such meeting unless prohibited by the FDA or such Foreign Regulatory Entity. The Company will (i) cooperate with, and provide reasonable access to, Parent’s representative for purposes of reviewing and assessing the Company’s FDA and Healthcare Law compliance programs and procedures, (ii) give due consideration to any resulting recommendations provided by Parent’s representative and (iii) use its reasonable best efforts to implement any such recommendations that it considers, in its own good faith judgment, to be advisable. (f) Notwithstanding the foregoing provisions of this Section 6.8, commercially and/or competitively sensitive information and materials of a party will be provided to the other party on an outside counsel-only basis while, to the extent feasible, making a version in which the commercial and/or competitively sensitive information has been redacted available to the other party.
Appears in 1 contract
Further Action; Efforts. (a) Upon the terms and subject to the conditions of this Agreement, each of the parties shall use its reasonable best efforts to (i) take, or cause to be taken, all actions and to do, or cause to be done, and cooperate with each other in order to do, all things necessary, proper or advisable under applicable Law (including under any Antitrust Law or Foreign Merger Control Law, including in connection with any filing relating to CFIUS, and including obtaining all approvals, consents, waivers of any third party necessary, proper or advisable) to consummate the transactions contemplated by this Agreement as soon as practicable, (ii) do all things necessary, proper or advisable under applicable laws and regulations to consummate the Merger and the other transactions contemplated by this Agreement as soon as practicableat the earliest practicable date, including: (Ai) causing the preparation and filing of all forms, registrations and notices required to be filed to consummate the Merger and the taking of using reasonable best efforts to take such actions as are necessary to obtain any requisite consent or approval, or expiration of any applicable waiting period under, under the HSR Act, any applicable Antitrust Law Act or any applicable Foreign Merger Control Law or with respect to CFIUS and other Antitrust Law; (Bii) using reasonable best efforts to defend all lawsuits and other proceedings by or before any Governmental Entity challenging this Agreement or the consummation of the Merger Merger; and (iii) using reasonable best efforts to resolve any objection asserted with respect to the transactions contemplated under this Agreement under any Antitrust Law or Foreign Merger Control Law raised by any Governmental Entity and to prevent the entry of any court order, and to have vacated, lifted, reversed or overturned any injunction, decree, ruling, order or other action of any Governmental Entity that would prevent, prohibit, restrict or delay the consummation of the transactions contemplated by this Agreement. Notwithstanding anything to the contrary set forth in this Agreement, in no event shall Parent or Merger Sub be obligated pursuant to this Agreement to, and the Company shall not without the written consent of Parent, divest or hold separate any assets or to take or commit to take any action which would be reasonably likely to (i) materially adversely impact the benefits expected to be derived by Parent, as a result of the transactions contemplated by this Agreement or (ii) impose material limitations on Parent’s ownership or operation (or that of any of Parent’s subsidiaries or affiliates) of all or a material portion of the Company’s business or assets.
(b) In furtherance and not in limitation of the provisions of Section 6.8(a5.7(a), each of the parties, as applicable, agrees to prepare and file as promptly as reasonably practicable, (A) and in any event by no later than fifteen (15) 10 Business Days from the date of this Agreement (i) an appropriate filing of a Notification and Report Form pursuant to the HSR Act, (ii) an appropriate notification form pursuant to the requirements of the Canadian Competition Act, as amended and (iii) an appropriate notification form pursuant to the requirements of Brazil Antitrust Law of June 11, 1994, as amended, and any regulations and resolutions promulgated in connection therewith, and (iv) any draft filings, notifications or reports required under the EUMR and (B) to the extent required, any initial filings, notifications or reports required under the jurisdictions set forth on Section 7.1(b) of the Company Disclosure Schedule. Parent shall pay all filing fees for the filings required under the HSR Act to be made by the Company and ParentParent under the HSR Act.
(c) If a party receives a request for information or documentary material from any Governmental Entity with respect to this Agreement or the transactions contemplated hereby, including but not limited to a Second Request for Information under the HSR Act, then such party shall in good faith make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, a response which is, at a minimum, in substantial compliance with such request.
(d) The parties shall keep each other apprised of the status of significant matters relating with respect to the completion of the transactions contemplated by matters set forth in this Agreement Section 5.7 and work cooperatively in connection with obtaining the approvals of or clearances from each applicable Governmental Entity, including:
(i) cooperating with each other in connection with filings required to be made by any party under any Antitrust Law or Foreign Merger Control Law and coordinating liaising with each other in relation to each step of the procedure before the relevant Governmental Entities and as to the contents of all material communications with such Governmental Entities. In particular, to the extent permitted by law Law or Governmental Entity, no party will make any material notification to any Governmental Entity in relation to the transactions contemplated hereunder without first providing the other party with a copy of such notification in draft form and giving such other party a reasonable opportunity to discuss its content before it is filed with the relevant Governmental Entities, and such first party shall consider and take account of all reasonable comments timely made by the other party in this respect;
(ii) furnishingfurnishing to the other party, to the extent permitted by lawLaw, to the all information within its possession that is required for any application or other party all necessary information that the other party may reasonably request in connection with filings required filing to be made by such the other party under Antitrust Laws and Foreign Merger Control Laws; andpursuant to the applicable Law in connection with the transactions contemplated by this Agreement;
(iii) promptly notifying each other of any material communications from or with any Governmental Entity with respect to the transactions contemplated by matters set forth in this Agreement Section 5.7 and ensuring to the extent permitted by law Law or Governmental Entity that each of the parties is given the opportunity entitled to attend any meetings with or other appearances before any Governmental Entity with respect thereto;
(iv) consulting and cooperating with one another in connection with all 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 Antitrust Laws; and
(v) without prejudice to any rights of the parties hereunder, consulting and cooperating in all respects with the other in defending all lawsuits and other proceedings by or before any Governmental Entity challenging this Agreement or the consummation of the Merger or the other transactions contemplated by this Agreement.
(e) In addition, Parent shall use reasonable best efforts to take, or cause to be taken, all other actions and to do, or cause to be done, all other things necessary, proper or advisable under all Antitrust Laws and other applicable Laws to consummate the transactions contemplated by this Agreement, including using its reasonable best efforts to obtain the expiration of all waiting periods and obtain all other approvals and any other consents required to be obtained in order for the parties to consummate the transactions contemplated by this Agreement. Notwithstanding the foregoing or any other provision of this Agreement, Parent (i) shall have the right to determine and direct the strategy and process by which the parties will seek required approvals under the HSR Act and any Antitrust Laws, (ii) unless otherwise requested by a Governmental Entity for a specific meeting or communication shall take the lead in all meetings and communications with any Governmental Entity and (iii) shall determine the appropriate timing of any meetings or communications with any Governmental Entity (including the timing of the submission of any filing with, or response to any request by, a Governmental Entity or any action taken pursuant to this Section 5.7).
(f) Notwithstanding anything to the contrary set forth in this Agreement, the obligations of Parent under this Section 5.7 shall include Parent committing itself and its Affiliates to and, to the extent requested by Parent, the obligations of the Company under this Section 5.7 shall include the Company and its Subsidiaries: (i) selling, divesting, or otherwise conveying particular assets, categories, portions or parts of assets or businesses of Parent and its Subsidiaries and Affiliates, the Company or the Company’s Subsidiaries; (ii) agreeing to sell, divest, or otherwise convey any particular asset, category, portion or part of an asset or business of the Company and its Subsidiaries contemporaneously with or subsequent to the Effective Time; (iii) after request of Parent or with Parent’s prior written consent, permitting the Company to sell, divest, or otherwise convey any of the particular assets, categories, portions or parts of assets or business of the Company or any of its Subsidiaries prior to the Effective Time; (iv) licensing, holding separate or entering into similar arrangements with respect to its respective assets or the assets of the Company or undertaking other structural or conduct relief or behavioral remedies, including with respect to the conduct of business arrangements or terminating existing relationships and contractual rights and obligations and (v) agree to, if necessary to consummate the transactions contemplated by this Agreement, obtain prior approval or other approval from a Governmental Entity, or submit a notification or otherwise notify any Governmental Entity, prior to consummating any future transaction (other than the transactions contemplated by this Agreement) as a condition to obtaining any and all expirations of waiting periods under the HSR Act or other Antitrust Laws or consents from any Governmental Entity necessary to consummate the transactions contemplated hereby. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require Parent or Merger Sub, or any of their respective Subsidiaries or Affiliates to commit to or effect any action, effort, or agreement (1) that is not conditioned upon the consummation of the Merger or (2) that, when taken together with all other actions, efforts or agreements set forth under this Section 5.7 would reasonably be expected to have a material adverse effect on the business, operations, financial condition or results of operations of Parent and its Subsidiaries (including the Company and its Subsidiaries), taken as a whole (assuming for purposes of such analysis that Parent and its Subsidiaries (including the Company and its Subsidiaries), taken as a whole, were the same size, with the same financial profile, as the Company and its Subsidiaries, taken as a whole). The Company and its Subsidiaries shall not, prior to the Effective Time, propose, negotiate, commit to, effect, or agree to any actions, efforts or agreements pursuant to this Section 5.7, except at the request of Parent or with Parent’s prior written consent. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall require Company or any of its Subsidiaries to commit to or effect any action, effort, or agreement that is not conditioned upon the consummation of the Merger.
(g) Each party acknowledges and agrees that the other party may, as it deems advisable, designate any competitively sensitive materials provided to the other party pursuant to this Agreement as “outside counsel only.” Such materials and the information contained therein shall be given only to outside counsel of the recipient and shall not be disclosed by such outside counsel to employees, officers or directors of the recipient without the prior written consent of the disclosing party; provided, further, that any information or materials provided to or received by any party may be redacted as necessary (a) to comply with contractual arrangements; (b) to address reasonable attorney-client or other privilege or confidentiality concerns; and (c) to remove information related to related to a party’s (or its Affiliates’) valuation of the transactions contemplated by this Agreement.
(dh) Parent will, as promptly as practicable after the date hereof, commence discussions with the CFIUS staff regarding the transactions contemplated by this Agreement, and Parent and the Company will as promptly as practicable after the date hereof cooperate to prepare the notice pursuant to the Exon-Xxxxxx Amendment to be used if Parent deems such filing necessary. For the avoidance of doubt, Parent and in the Company shall commence preparation event either party receives a letter from any Governmental Entity stating that although the waiting period under the HSR Act applicable to the transactions contemplated by this Agreement will soon expire, the Governmental Entity has not yet completed any purported investigation of such notice prior to the proposed transaction (a “Pre-Consummation Warning Letter”), the parties agree that the receipt by either or both of them of a Pre-Consummation Warning Letter or any guidance on a final determination, if any, other verbal or written communications from the CFIUS staff, and, so long as Governmental Entity to the Company timely provides all reasonable cooperation in connection therewith, including providing all information reasonably necessary same effect shall not be a basis for the preparation of a draft joint notice, Parent shall within twenty (20) Business Days of the date asserting that any condition to Closing under Article VI hereof either has not been satisfied.
(i) provide the initial draft joint notice pursuant to the Exon-Xxxxxx Amendment to the CFIUS staff, if Parent deems such filing necessary or (ii) notify the Company that it does not deem such filing necessary.
(e) The Company shall give prompt notice to Parent and Merger Sub, and copies of any correspondence to or from the FDA, any Foreign Regulatory Entity or Healthcare Governmental Entity containing substantive, factual or legal issues that relate to the compliance status of the Company or any of its subsidiaries and/or any of their respective products or otherwise provide the other party with reasonable information or respond to reasonable requests for information with respect to such matters. The Company shall give due consideration, following reasonable prior notice to Parent, to any advice from Parent as to how to respond to any material correspondence from the FDA, any Foreign Regulatory Entity or Healthcare Governmental Entity or with respect to any other material submissions to any of the foregoing. If the Company is invited to participate in any meeting with the FDA with respect to the letter received on May 5, 2011, any warning letter, untitled letter, notice of violation letter, FDA establishment inspection close-out, recall, or any enforcement action initiated by FDA, or invited to participate in any meeting with any Foreign Regulatory Entity pertaining to similar matters, then the Company shall give Parent reasonable prior notice of such meeting and invite one outside representative of Parent (designated by Parent and who is qualified as a subject matter expert reasonably acceptable to the Company) to attend such meeting unless prohibited by the FDA or such Foreign Regulatory Entity. The Company will (i) cooperate with, and provide reasonable access to, Parent’s representative for For purposes of reviewing this Agreement, “Antitrust Law” means the Sxxxxxx Act, as amended, the Cxxxxxx Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended and assessing all other Laws that are designed or intended to prohibit, restrict or regulate actions having the Company’s FDA and Healthcare Law compliance programs and procedures, (ii) give due consideration to any resulting recommendations provided by Parent’s representative and (iii) use its reasonable best efforts to implement any such recommendations that it considers, in its own good faith judgment, to be advisablepurpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition.
(f) Notwithstanding the foregoing provisions of this Section 6.8, commercially and/or competitively sensitive information and materials of a party will be provided to the other party on an outside counsel-only basis while, to the extent feasible, making a version in which the commercial and/or competitively sensitive information has been redacted available to the other party.
Appears in 1 contract
Sources: Merger Agreement (Infrastructure & Energy Alternatives, Inc.)
Further Action; Efforts. (a) Upon the terms and subject to the conditions of this Agreement, each of the parties shall use its reasonable best efforts to (i) take, or cause to be taken, all actions and to do, or cause to be done, and cooperate with each other in order to do, all things necessary, proper or advisable under applicable Law (including under any Antitrust Law or Foreign Merger Control Law, including in connection with any filing relating to CFIUS, and including obtaining all approvals, consents, waivers of any third party necessary, proper or advisable) to consummate the transactions contemplated by this Agreement as soon as practicable, (ii) do all things necessary, proper or advisable under applicable laws and regulations to consummate the Merger and the other transactions contemplated by this Agreement as soon as practicableat the earliest practicable date, including: (Ai) causing the preparation and filing of all forms, registrations and notices required to be filed to consummate the Merger and the taking of such actions as are necessary to obtain any requisite consent or approval, or expiration of any applicable waiting period under, under the HSR Act, any applicable Antitrust Law Act or any applicable Foreign Merger Control Law or with respect to CFIUS and other Antitrust Law; (Bii) using reasonable best efforts to defend all lawsuits and other proceedings by or before any Governmental Entity challenging this Agreement or the consummation of the Merger Merger; and (iii) using reasonable best efforts to resolve any objection asserted with respect to the transactions contemplated under this Agreement under any Antitrust Law or Foreign Merger Control Law raised by any Governmental Entity and to prevent the entry of any court order, and to have vacated, lifted, reversed or overturned any injunction, decree, ruling, order or other action of any Governmental Entity that would prevent, prohibit, restrict or delay the consummation of the transactions contemplated by this Agreement. Notwithstanding anything to the contrary set forth in this Agreement, in no event shall Parent or Merger Sub be obligated pursuant to this Agreement to, and the Company shall not without the written consent of Parent, divest or hold separate any assets or to take or commit to take any action which would be reasonably likely to (i) materially adversely impact the benefits expected to be derived by Parent, as a result of the transactions contemplated by this Agreement or (ii) impose material limitations on Parent’s ownership or operation (or that of any of Parent’s subsidiaries or affiliates) of all or a material portion of the Company’s business or assets.
(b) In furtherance and not in limitation of the provisions of Section 6.8(aSection 5.8(a), each of the parties, as applicable, agrees to prepare and file as promptly as reasonably practicable, (A) and in any event by no later than fifteen ten (1510) Business Days from the date of this Agreement (i) an appropriate filing of a Notification and Report Form pursuant to the HSR Act, (ii) an appropriate notification form pursuant to the requirements of the Canadian Competition Act, as amended and (iii) an appropriate notification form pursuant to the requirements of Brazil Antitrust Law of June 11, 1994, as amended, and any regulations and resolutions promulgated in connection therewith, and (iv) any draft filings, notifications or reports required under the EUMR and (B) to the extent required, any initial filings, notifications or reports required under the jurisdictions set forth on Section 7.1(b) of the Company Disclosure Schedule. Parent shall pay all filing fees and other charges for the filings required under the HSR Act by the Company and Parent.
(c) The parties shall keep each other apprised of the status of significant matters relating with respect to the completion of the transactions contemplated by matters set forth in this Agreement Section 5.8 and work cooperatively in connection with obtaining the approvals of or clearances from each applicable Governmental Entity, including:
(i) cooperating with each other in connection with filings required to be made by any party under any Antitrust Law or Foreign Merger Control Law and coordinating liaising with each other in relation to each step of the procedure before the relevant Governmental Entities and as to the contents of all material communications with such Governmental Entities. In particular, to the extent permitted by law Law or Governmental Entity, no party will make any material notification to any Governmental Entity in relation to the transactions contemplated hereunder without first providing the other party with a copy of such notification in draft form and giving such other party a reasonable opportunity to discuss its content before it is filed with the relevant Governmental Entities, and such first party shall consider and take account of all reasonable comments timely made by the other party in this respect;
(ii) furnishing, to the extent permitted by law, furnishing to the other party all necessary information within its possession that the is required for any application or other party may reasonably request in connection with filings required filing to be made by such the other party under Antitrust Laws and Foreign Merger Control Laws; andpursuant to the applicable Law in connection with the transactions contemplated by this Agreement;
(iii) promptly notifying each other of any material communications from or with any Governmental Entity with respect to the transactions contemplated by matters set forth in this Agreement Section 5.8 and ensuring to the extent permitted by law Law or Governmental Entity that each of the parties is given the opportunity entitled to attend any material meetings with or other appearances before any Governmental Entity with respect thereto;
(iv) consulting and cooperating with one another in connection with all 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 Antitrust Laws; and
(v) without prejudice to any rights of the parties hereunder, consulting and cooperating in all respects with the other in defending all lawsuits and other proceedings by or before any Governmental Entity challenging this Agreement or the consummation of the Merger or the other transactions contemplated by this Agreement.
(d) Parent will, as promptly as practicable after Notwithstanding anything else in this Section 5.8 all Parties agree that it is Parent’s sole right to devise the date hereof, commence discussions strategy for all filings and communications in connection with any filing pursuant to the HSR Act and any other filings and submissions under applicable Antitrust Laws including material communications and negotiations with the CFIUS staff Federal Trade Commission, the Department of Justice or any other Governmental Entity regarding any of the transactions contemplated by this Agreement, so long as such strategy complies with the terms and conditions of this Agreement and provided, that, Parent consults and considers in good faith the views of the Company.
(e) In addition, the Parties shall (i) take, or cause to be taken, all other actions and to do, or cause to be done, all other things necessary, proper or advisable under all Antitrust Laws and other applicable Laws to consummate the transactions contemplated by this Agreement, including using its best efforts to obtain the expiration of all waiting periods and obtain all other approvals and any other consents required to be obtained in order for the parties to consummate the transactions contemplated by this Agreement, and Parent (ii) not enter into or consummate any Contracts for an acquisition (by stock purchase, merger, consolidation, purchase of assets, license or otherwise) of any ownership interest, assets or rights in or of any Person to the extent such action would reasonably be expected to prevent or materially delay the consummation of the Merger and the Company will as promptly as practicable after the date hereof cooperate to prepare the notice pursuant other transactions contemplated by this Agreement.
(f) Notwithstanding anything to the Exon-Xxxxxx Amendment to be used if contrary set forth in this Agreement, the obligations of Parent deems such filing necessary. For the avoidance of doubt, under this Section 5.8 shall include Parent committing itself and the Company shall commence preparation of such notice prior to receipt of or any guidance on a final determination, if any, from the CFIUS staff, and, so long as the Company timely provides all reasonable cooperation in connection therewith, including providing all information reasonably necessary for the preparation of a draft joint notice, Parent shall within twenty (20) Business Days of the date hereof either its Affiliates to: (i) provide the initial draft joint notice pursuant to the Exon-Xxxxxx Amendment to the CFIUS staffselling, if divesting, or otherwise conveying particular assets, categories, portions or parts of assets or businesses of Parent deems such filing necessary or and its Subsidiaries and Affiliates; (ii) notify agreeing to sell, divest, or otherwise convey any particular asset, category, portion or part of an asset or business of the Company that it does not deem such filing necessary.
(e) The Company shall give prompt notice to Parent and Merger Sub, and copies of any correspondence to its Subsidiaries contemporaneously with or from the FDA, any Foreign Regulatory Entity or Healthcare Governmental Entity containing substantive, factual or legal issues that relate subsequent to the compliance status Effective Time; (iii) permitting the Company to sell, divest, or otherwise convey any of the particular assets, categories, portions or parts of assets or business of the Company or any of its subsidiaries and/or any of their respective products Subsidiaries prior to the Effective Time; (iv) licensing, holding separate or otherwise provide the other party with reasonable information or respond to reasonable requests for information entering into similar arrangements with respect to such matters. The its respective assets or the assets of the Company or conduct of business arrangements or terminating any and all existing relationships and contractual rights and obligations and (v) obtain prior approval or other approval from a Governmental Entity, or submit a notification or otherwise notify any Governmental Entity, prior to consummating any future transaction (other than the transactions contemplated by this Agreement) as a condition to obtaining any and all expirations of waiting periods under the HSR Act or other Antitrust Laws or consents from any Governmental Entity necessary to consummate the transactions contemplated hereby, provided, that, notwithstanding anything to the contrary herein, nothing in this Section 5.8 shall give due consideration, following reasonable prior notice require any Party or any of its respective Affiliates to Parent, agree to any advice from Parent as to how to respond to condition, take any material correspondence from measure or action or enter into any agreement that is not contingent on the FDAClosing, any Foreign Regulatory Entity or Healthcare Governmental Entity or with respect to any other material submissions to any of the foregoing. If the Company is invited to participate in any meeting with the FDA with respect and, provided, further, that notwithstanding anything to the letter received on May 5contrary contained in this Agreement, 2011Parent shall not be required to take any actions that, any warning letterindividually or in the aggregate, untitled letterwould reasonably be expected to have (A) Company Material Adverse Effect or (B) a Parent Material Adverse Effect, notice of violation letterin each case, FDA establishment inspection close-out, recall, or any enforcement action initiated by FDA, or invited to participate in any meeting with any Foreign Regulatory Entity pertaining to similar matters, then the Company shall give Parent reasonable prior notice of such meeting and invite one outside representative of Parent (designated as determined by Parent and who is qualified as a subject matter expert reasonably acceptable to the Company) to attend such meeting unless prohibited by the FDA or such Foreign Regulatory Entity. The Company will (i) cooperate with, and provide reasonable access to, Parent’s representative for purposes of reviewing and assessing the Company’s FDA and Healthcare Law compliance programs and procedures, (ii) give due consideration to any resulting recommendations provided by Parent’s representative and (iii) use its reasonable best efforts to implement any such recommendations that it considers, in its own good faith judgment, to be advisablefaith.
(fg) Notwithstanding the foregoing provisions of this Section 6.8foregoing, commercially and/or competitively sensitive information and materials of a party will be provided to the other party on an outside counsel-only basis while, to the extent feasible, making a version in which the commercial and/or competitively sensitive information has been redacted available to the other party.
(h) For purposes of this Agreement, “Antitrust Law” means the Sxxxxxx Act, as amended, the Cxxxxxx Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended and all other Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition.
Appears in 1 contract
Further Action; Efforts. (a) Upon Subject to the terms and subject to the conditions of this Agreement, each of the parties shall party will use its reasonable best efforts to (i) take, or cause to be taken, all actions and to do, or cause to be done, and cooperate with each other in order to do, all things necessary, proper or advisable (including under any Antitrust Law or Foreign Merger Control Law, including in connection with any filing relating to CFIUS, and including obtaining all approvals, consents, waivers of any third party necessary, proper or advisable) to consummate the transactions contemplated by this Agreement as soon as practicable, (ii) do all things necessary, proper or advisable under applicable laws and regulations to consummate the Merger and the other transactions contemplated by this Agreement as soon as practicable, including: (A) causing the preparation and filing of all forms, registrations and notices required to be filed to consummate the Merger and the taking of such actions as are necessary to obtain any requisite consent or approval, or expiration of any applicable waiting period under, the HSR Act, any applicable Antitrust Law or any applicable Foreign Merger Control Law or with respect to CFIUS and (B) using reasonable best efforts to defend all lawsuits and other proceedings by or before any Governmental Entity challenging this Agreement or the consummation of the Merger and (iii) resolve any objection asserted with respect to the transactions contemplated under this Agreement under any Antitrust Law or Foreign Merger Control Law raised by any Governmental Entity and to prevent the entry of any court order, and to have vacated, lifted, reversed or overturned any injunction, decree, ruling, order or other action of any Governmental Entity that would prevent, prohibit, restrict or delay the consummation of the transactions contemplated by this Agreement. Notwithstanding anything to the contrary set forth in this Agreement, in no event shall Parent or Merger Sub be obligated pursuant to this Agreement to, and the Company shall not without the written consent of Parent, divest or hold separate any assets or to take or commit to take any action which would be reasonably likely to (i) materially adversely impact the benefits expected to be derived by Parent, as a result of the transactions contemplated by this Agreement or (ii) impose material limitations on Parent’s ownership or operation (or that of any of Parent’s subsidiaries or affiliates) of all or a material portion of the Company’s business or assets.
(b) In furtherance and not in limitation of the provisions of Section 6.8(a)subsection (a) above, each of Parent, Merger Sub and the parties, as applicable, agrees to prepare and file Company shall as promptly as reasonably practicable, (A) and in any event by no later than fifteen (15) Business Days from within ten business days of the date of this Agreement hereof, duly file with the United States Federal Trade Commission (ithe “FTC”) an appropriate Notification and Report Form pursuant to the HSR Act, (ii) an appropriate notification form pursuant to the requirements Antitrust Division of the Canadian Competition Act, as amended Department of Justice (the “Antitrust Division”) the notification and (iii) an appropriate notification report form pursuant to the requirements of Brazil Antitrust Law of June 11, 1994, as amended, and any regulations and resolutions promulgated in connection therewith, and (iv) any draft filings, notifications or reports required under the EUMR and (B) to the extent required, any initial filings, notifications or reports required under the jurisdictions set forth on Section 7.1(b) of the Company Disclosure Schedule. Parent shall pay all filing fees for the filings required under the HSR Act by the Company and Parent.
(c) The parties shall keep each other apprised of the status of significant matters relating to the completion of the transactions contemplated by this Agreement and work cooperatively in connection with obtaining the approvals of or clearances from each applicable Governmental Entity, including:
(i) cooperating with each other in connection with filings required to be made by any party under any Antitrust Law or Foreign Merger Control Law and coordinating with each other in relation to each step of the procedure before the relevant Governmental Entities and as to the contents of all material communications with such Governmental Entities. In particular, to the extent permitted by law or Governmental Entity, no party will make any material notification to any Governmental Entity in relation to the transactions contemplated hereunder without first providing the other party with a copy of such notification in draft form and giving such other party a reasonable opportunity to discuss its content before it is filed with the relevant Governmental Entities, and such first party shall consider and take account of all reasonable comments timely made by the other party in this respect;
(ii) furnishing, to the extent permitted by law, to the other party all necessary information that the other party may reasonably request in connection with filings required to be made by such other party under Antitrust Laws and Foreign Merger Control Laws; and
(iii) promptly notifying each other of any material communications from or with any Governmental Entity with respect to the transactions contemplated by this Agreement and ensuring to the extent permitted by law or Governmental Entity that each of the parties is given the opportunity to attend any meetings with or other appearances before any Governmental Entity with respect to the transactions contemplated by this Agreement.
(d) Parent will, supply as promptly as reasonably practicable after any additional information and documentary material that may be requested under the date hereofHSR Act and use its reasonable best efforts to take or cause to be taken all other actions necessary, commence discussions proper or advisable consistent with this Section 6.8. Each of Parent and the CFIUS staff Company shall (i) promptly inform the other party upon receipt of any material communication from the FTC, the Antitrust Division or any other Governmental Entity regarding any of the transactions contemplated by this Agreement, and Parent and the Company will (ii) respond as promptly as reasonably practicable under the circumstances, after consultation with the date hereof cooperate other party, to prepare any inquiries received from the notice pursuant FTC or the Antitrust Division for additional information or documentation and to all inquiries and requests received from either Governmental Entity, (iii) not participate, or permit their affiliates to participate, in any substantive meeting or discussion with any Governmental Entity in connection with the transactions contemplated by this Agreement unless it so consults with the other party in advance and, to the Exon-Xxxxxx Amendment extent not prohibited by such Governmental Entity, gives the other party the opportunity to attend and participate, (iv) not extend any waiting period under the HSR Act without the prior written consent of the other party (such consent not to be used if Parent deems unreasonably withheld, conditioned or delayed) and (v) not enter into any agreement with any Governmental Entity not to consummate the transactions contemplated by this Agreement without the prior written consent of the other party (such filing necessary. For consent not to be unreasonably withheld, conditioned or delayed).
(c) In furtherance and not in limitation of the avoidance covenants of doubtthe parties contained in subsections (a) and (b) of this Section 6.8, Parent and the Company shall commence preparation use their respective reasonable best efforts to avoid the entry of, or to have vacated, lifted, reversed or overturned, any injunction, judgment, order or decree that would restrain, prevent or delay the Closing, including, with respect to Parent, Parent’s taking all such actions, including (y) proposing, negotiating, committing to and effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of such notice prior to receipt of assets or any guidance on a final determination, if any, from the CFIUS staff, and, so long as the Company timely provides all reasonable cooperation in connection therewith, including providing all information reasonably necessary for the preparation of a draft joint notice, Parent shall within twenty (20) Business Days of the date hereof either (i) provide the initial draft joint notice pursuant to the Exon-Xxxxxx Amendment to the CFIUS staff, if Parent deems such filing necessary or (ii) notify the Company that it does not deem such filing necessary.
(e) The Company shall give prompt notice to Parent and Merger Sub, and copies of any correspondence to or from the FDA, any Foreign Regulatory Entity or Healthcare Governmental Entity containing substantive, factual or legal issues that relate to the compliance status businesses of the Company or any of its subsidiaries and/or Parent (or any of their respective products subsidiaries) and (z) otherwise taking or otherwise provide committing to take actions that limit the other party with reasonable information Company or respond to reasonable requests for information Parent or their respective subsidiaries’ freedom of action with respect to, or its ability to such matters. The Company shall give due considerationretain, following reasonable prior notice one or more of its or its subsidiaries’ businesses, product lines or assets, in each case, as may be required in order to Parentavoid the entry of, or to any advice from Parent as to how to respond to any material correspondence from effect the FDAdissolution of, any Foreign Regulatory Entity injunction, temporary restraining order, or Healthcare Governmental Entity other order in any suit or with respect to any other material submissions to any proceeding, which would otherwise have the effect of preventing or materially delaying the consummation of the foregoing. If the Company is invited to participate in any meeting with the FDA with respect to the letter received on May 5, 2011, any warning letter, untitled letter, notice of violation letter, FDA establishment inspection close-out, recall, or any enforcement action initiated by FDA, or invited to participate in any meeting with any Foreign Regulatory Entity pertaining to similar matters, then the Company shall give Parent reasonable prior notice of such meeting and invite one outside representative of Parent (designated by Parent and who is qualified as a subject matter expert reasonably acceptable to the Company) to attend such meeting unless prohibited by the FDA or such Foreign Regulatory Entity. The Company will (i) cooperate with, and provide reasonable access to, Parent’s representative for purposes of reviewing and assessing the Company’s FDA and Healthcare Law compliance programs and procedures, (ii) give due consideration to any resulting recommendations provided by Parent’s representative and (iii) use its reasonable best efforts to implement any such recommendations that it considers, in its own good faith judgment, to be advisableClosing.
(f) Notwithstanding the foregoing provisions of this Section 6.8, commercially and/or competitively sensitive information and materials of a party will be provided to the other party on an outside counsel-only basis while, to the extent feasible, making a version in which the commercial and/or competitively sensitive information has been redacted available to the other party.
Appears in 1 contract
Sources: Merger Agreement (Ecollege Com)
Further Action; Efforts. (a) Upon the terms and subject to the conditions of this Agreement, each of the parties shall use its reasonable best efforts to (i) take, or cause to be taken, all actions and to do, or cause to be donedone (but subject to the other provisions of this Section 5.7), and cooperate with each other in order to do, all things necessary, proper or advisable under applicable Law (including under any Antitrust Law or Foreign Merger Control Law, including in connection with any filing relating to CFIUS, and including obtaining all approvals, consents, waivers of any third party necessary, proper or advisable(as defined below)) to consummate the transactions contemplated by this Agreement as soon as practicable, (ii) do all things necessary, proper or advisable under applicable laws and regulations to consummate the Merger and the other transactions contemplated by this Agreement as soon as practicableat the earliest practicable date, including: (Ai) causing the preparation and filing of all forms, registrations and notices required to be filed to consummate the Merger and the taking of such actions as are necessary to obtain any requisite consent or approvalconsent, non-action or expiration of any applicable waiting period under, under the HSR Act, any applicable Antitrust Law Act or any applicable other Foreign Merger Control Law or with respect to CFIUS and Antitrust Law; (Bii) using reasonable best efforts to defend all lawsuits and other proceedings by or before any Governmental Entity challenging this Agreement or the consummation of the Merger Merger; and (iii) using reasonable best efforts to resolve any objection asserted with respect to the transactions contemplated under this Agreement Agreement, including the Merger, under any Antitrust Law or Foreign Merger Control Law raised by any Governmental Entity and to prevent the entry of any court order, and to have vacated, lifted, reversed or overturned any injunction, decree, ruling, order or other action of any Governmental Entity Entity, that would prevent, prohibit, restrict or delay the consummation of the transactions contemplated by this Agreement. Notwithstanding anything to , including the contrary set forth in this Agreement, in no event shall Parent or Merger Sub be obligated pursuant to this Agreement to, and the Company shall not without the written consent of Parent, divest or hold separate any assets or to take or commit to take any action which would be reasonably likely to (i) materially adversely impact the benefits expected to be derived by Parent, as a result of the transactions contemplated by this Agreement or (ii) impose material limitations on Parent’s ownership or operation (or that of any of Parent’s subsidiaries or affiliates) of all or a material portion of the Company’s business or assetsMerger.
(b) In furtherance and not in limitation of the provisions of Section 6.8(a5.7(a), each of the parties, as applicable, agrees to prepare and file as promptly as reasonably practicable, (A) and in any event by no later than fifteen (15) five Business Days from the date of this Agreement (i) an appropriate Agreement, a filing of a Notification and Report Form pursuant to the HSR Act, (ii) an appropriate notification form pursuant unless otherwise mutually agreed to in writing by the requirements of the Canadian Competition Act, as amended and (iii) an appropriate notification form pursuant to the requirements of Brazil Antitrust Law of June 11, 1994, as amended, and any regulations and resolutions promulgated in connection therewith, and (iv) any draft filings, notifications or reports required under the EUMR and (B) to the extent required, any initial filings, notifications or reports required under the jurisdictions set forth on Section 7.1(b) of the Company Disclosure Scheduleparties. Parent shall pay all filing fees and other charges for the filings required under the HSR Act by the Company and Parent.
(c) If a party receives a request for information or documentary material from any Governmental Entity with respect to this Agreement or the Merger or any of the other transactions contemplated hereby, including but not limited to a Second Request for Information under the HSR Act, then such party shall, unless otherwise mutually agreed to in writing by the parties, in good faith make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, a response which is, at a minimum, in substantial compliance with such request.
(d) The parties shall keep each other apprised of the status of significant matters relating to the completion of the Merger and the other transactions contemplated by this Agreement and work cooperatively in connection with obtaining the approvals of or clearances from each applicable Governmental Entity, including:
(i) cooperating with each other in connection with filings required to be made by any party under any Antitrust Law or Foreign Merger Control Law and coordinating liaising with each other in relation to each step of the procedure before the relevant Governmental Entities and as to the contents of all material communications with such Governmental Entities. In particular, to the extent permitted by law Law or Governmental Entity, no party will make any material notification to any Governmental Entity in relation to the transactions contemplated hereunder hereunder, without first providing the other party with a copy of such notification in draft form and giving such other party a reasonable opportunity to discuss its content before it is filed with the relevant Governmental Entities, and such first party shall consider and take account of all reasonable comments timely made by the other party in this respect;
(ii) furnishing, to the extent permitted by law, furnishing to the other party all necessary information within its possession that the is required for any application or other party may reasonably request in connection with filings required filing to be made by such the other party under Antitrust Laws and Foreign pursuant to applicable Law in connection with this Agreement or the consummation of the Merger Control Laws; andor the other transactions contemplated by this Agreement;
(iii) promptly notifying each other of any material communications from or with any Governmental Entity with respect to the Merger or the other transactions contemplated by this Agreement and ensuring to the extent permitted by law Law or Governmental Entity that each of the parties is given the opportunity entitled to attend any meetings with or other appearances before any Governmental Entity with respect to this Agreement or the consummation of the Merger or the other transactions contemplated by this Agreement;
(iv) consulting and cooperating with one another in connection with all 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 Antitrust Laws; and
(v) without prejudice to any rights of the parties hereunder, consulting and cooperating in all respects with the other in defending all lawsuits and other proceedings by or before any Governmental Entity challenging this Agreement or the consummation of the Merger or the other transactions contemplated by this Agreement.
(de) In addition, Parent willand the Company shall take, as promptly as practicable after or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under all Antitrust Laws to consummate the date hereofMerger and the other transactions contemplated by this Agreement, commence discussions with including using their respective reasonable best efforts to obtain the CFIUS staff regarding expiration of all waiting periods and obtain all other approvals and any other consents or non-actions required to be obtained in order for the parties to consummate the transactions contemplated by this Agreement, and Parent and including the Company will as promptly as practicable after the date hereof cooperate to prepare the notice pursuant Merger. Notwithstanding anything to the Exon-Xxxxxx Amendment to be used if contrary set forth in this Agreement, the obligations of Parent deems such filing necessary. For the avoidance of doubt, under this Section 5.7 shall include Parent and the Company shall commence preparation of such notice prior to receipt of or any guidance on a final determination, if any, from the CFIUS staff, and, so long as the Company timely provides all reasonable cooperation in connection therewith, including providing all information reasonably necessary for the preparation of a draft joint notice, Parent shall within twenty (20) Business Days of the date hereof either committing to: (i) provide the initial draft joint notice pursuant to the Exon-Xxxxxx Amendment to the CFIUS staffselling, if divesting, or otherwise conveying particular assets, categories, or portions or parts of assets or businesses of Parent deems such filing necessary or and its Affiliates; (ii) notify agreeing to sell, divest, or otherwise convey any particular asset, category, or portion or part of an asset or business of the Company that it does not deem such filing necessary.
(e) The Company shall give prompt notice to Parent and Merger Sub, and copies of any correspondence to its Subsidiaries contemporaneously with or from the FDA, any Foreign Regulatory Entity or Healthcare Governmental Entity containing substantive, factual or legal issues that relate subsequent to the compliance status Effective Time; (iii) permitting the Company to sell, divest, or otherwise convey any of the particular assets, categories, or portions or parts of assets or business of the Company or any of its subsidiaries and/or any of their respective products Subsidiaries prior to the Effective Time, in each case on terms and conditions that are reasonably acceptable to Parent; and (iv) licensing, holding separate or otherwise provide the other party with reasonable information or respond to reasonable requests for information entering into similar arrangements with respect to such matters. The its respective assets or the assets of the Company or conduct of business arrangements or terminating any and all existing relationships and contractual rights and obligations as a condition to obtaining any and all expirations of waiting periods under the HSR Act or consents or non-actions from any Governmental Entity necessary to consummate the Merger and the other transactions contemplated hereby; provided, that (A) Parent and its Affiliates shall not be required to take or agree to take, or cause to be taken (and the Company shall give due considerationnot take or agree to take, following reasonable without the prior notice to written consent of Parent), to any advice from Parent as to how to respond to any material correspondence from the FDA, any Foreign Regulatory Entity or Healthcare Governmental Entity or with respect to any other material submissions to any of the foregoing. If the Company is invited to participate in any meeting with the FDA foregoing actions with respect to the letter received on May 5assets, 2011businesses or product lines of Parent or any of its Subsidiaries, or the Company or any warning letter, untitled letter, notice of violation letter, FDA establishment inspection close-out, recallits Subsidiaries, or any enforcement action initiated by FDAcombination thereof, if the result of such actions would, either individually or invited in the aggregate, exceed the Detriment Limit (as defined below); and (B) Parent shall have the right to participate compel the Company to take any of the actions referred to above in any meeting with any Foreign Regulatory Entity pertaining clauses (ii) through (iv) to similar mattersthe extent applicable to the Company and/or its Subsidiaries (or agree to take such actions) solely to the extent such actions are effective at or after the Effective Time, then and the Company shall give cooperate with Parent, as reasonably requested by Parent in connection with such actions, including (1) cooperating with Parent in negotiating any divestiture, licensing, holding separate or similar arrangements involving the business or assets of the Company or its Subsidiaries, (2) making the management team and other personnel of the Company and its Subsidiaries available for management presentations, due diligence sessions and other meetings requested by potential buyers, (3) responding promptly to reasonable prior notice due diligence requests from, and making information regarding the Company and its Subsidiaries available to, potential buyers, to the extent permitted by Law and subject to customary confidentiality obligations of such meeting potential buyers and invite one outside representative of Parent (designated by Parent and who is qualified as a subject matter expert reasonably acceptable 4) providing potential buyers with access to the Company) to attend such meeting unless prohibited by facilities and properties of the FDA or such Foreign Regulatory EntityCompany and its Subsidiaries, in the case of each of the foregoing during normal business hours and with reasonable advance notice. The Company will agreements made in this Section 5.7 do not constitute an admission that the consummation of the Merger, if consummated without the taking of any of the actions referred to in clauses (i) cooperate withthrough (iv) of the preceding sentence, and provide reasonable access to, Parent’s representative for purposes would violate any Antitrust Law or that the taking of reviewing and assessing the Company’s FDA and Healthcare Law compliance programs and procedures, (ii) give due consideration to any resulting recommendations provided by Parent’s representative and (iii) use its reasonable best efforts to implement any such recommendations that it considersactions would not be harmful to the parties. Parent and its Affiliates shall not acquire or agree to acquire any rights, in its own good faith judgmentassets, business, Person or division thereof (through acquisition, license, joint venture, collaboration or otherwise) if such acquisition would reasonably be expected to be advisablematerially increase the risk of not obtaining, or materially delay receipt of, any applicable clearance, consent, approval or waiver under the HSR Act with respect to this Agreement.
(f) Notwithstanding the foregoing provisions of this Section 6.8foregoing, all commercially and/or competitively sensitive information and materials of a party will be provided to the other party on an outside counsel-counsel only basis while, to the extent feasible, making a version in which the commercial and/or competitively sensitive information has been redacted available to the other party.
(g) For purposes of this Agreement:
Appears in 1 contract
Sources: Merger Agreement (Forterra, Inc.)
Further Action; Efforts. (a) Upon Subject to the terms and subject to the conditions of set forth in this Agreement, the Company, Parent and Merger Sub and their respective Representatives shall cooperate with each of the parties other and use (and shall use its cause their respective subsidiaries to use) their respective reasonable best efforts to (i) take, take or cause to be takentaken all actions, all actions and to do, do or cause to be donedone all things, and cooperate with each other in order to do, all things reasonably necessary, proper or advisable (including on its part under any Antitrust Law or Foreign Merger Control Law, including in connection with any filing relating to CFIUS, this Agreement and including obtaining all approvals, consents, waivers of any third party necessary, proper or advisable) applicable Laws to consummate the transactions contemplated by this Agreement as soon as practicable, (ii) do all things necessary, proper or advisable under applicable laws and regulations to consummate make effective the Merger and the other transactions contemplated by this Agreement as soon as reasonably practicable, including: (A) causing the preparation including preparing, executing and filing of as promptly as reasonably practicable all formsdocumentation to effect all necessary notices, registrations reports and notices required other filings and to obtain as promptly as practicable all consents, registrations, approvals, permits and authorizations necessary or advisable to be filed obtained from any third party and/or any Governmental Entity in order to consummate the Merger and the taking of such actions as are necessary to obtain any requisite consent or approval, or expiration of any applicable waiting period under, the HSR Act, any applicable Antitrust Law or any applicable Foreign Merger Control Law or with respect to CFIUS and (B) using reasonable best efforts to defend all lawsuits and other proceedings by or before any Governmental Entity challenging this Agreement or the consummation of the Merger and (iii) resolve any objection asserted with respect to the transactions contemplated under this Agreement under any Antitrust Law or Foreign Merger Control Law raised by any Governmental Entity and to prevent the entry of any court order, and to have vacated, lifted, reversed or overturned any injunction, decree, ruling, order or other action of any Governmental Entity that would prevent, prohibit, restrict or delay the consummation of the transactions contemplated by this Agreement. Notwithstanding anything to the contrary set forth in this Agreement, in no event shall Parent or Merger Sub be obligated pursuant to this Agreement to, and the Company shall not without the written consent of Parent, divest or hold separate any assets or to take or commit to take any action which would be reasonably likely to (i) materially adversely impact the benefits expected to be derived by Parent, as a result of the transactions contemplated by this Agreement or (ii) impose material limitations on Parent’s ownership or operation (or that of any of Parent’s subsidiaries or affiliates) of all or a material portion of the Company’s business or assets.
(b) In furtherance and not in limitation Each of the provisions of Section 6.8(a), each of the parties, as applicable, agrees to prepare and file as promptly as reasonably practicable, (A) and in any event by no later than fifteen (15) Business Days from the date of this Agreement (i) an appropriate Notification and Report Form pursuant to the HSR Act, (ii) an appropriate notification form pursuant to the requirements of the Canadian Competition Act, as amended and (iii) an appropriate notification form pursuant to the requirements of Brazil Antitrust Law of June 11, 1994, as amended, and any regulations and resolutions promulgated in connection therewith, and (iv) any draft filings, notifications or reports required under the EUMR and (B) to the extent required, any initial filings, notifications or reports required under the jurisdictions set forth on Section 7.1(b) of the Company Disclosure Schedule. Parent shall pay all filing fees for the filings required under the HSR Act by the Company and Parent.
(c) The parties shall keep each other apprised of the status of significant matters relating to the completion of the transactions contemplated by this Agreement and work cooperatively in connection with obtaining the approvals of or clearances from each applicable Governmental Entity, including:
and, without prejudice to any rights of the parties hereunder, shall consult, and cooperate and use its reasonable best efforts to (i) cooperating with each other in connection with filings required to be made vigorously contest and defend all Legal Proceedings by any party under any Antitrust Law or Foreign Merger Control Law and coordinating with each other in relation to each step of the procedure before the relevant Governmental Entities and as to the contents of all material communications with such Governmental Entities. In particular, to the extent permitted by law or Governmental Entity, no party will make any material notification to any Governmental Entity in relation to or by any private party challenging this Agreement or the transactions contemplated hereunder without first providing the other party with a copy consummation of such notification in draft form and giving such other party a reasonable opportunity to discuss its content before it is filed with the relevant Governmental Entities, and such first party shall consider and take account of all reasonable comments timely made by the other party in this respect;
(ii) furnishing, to the extent permitted by law, to the other party all necessary information that the other party may reasonably request in connection with filings required to be made by such other party under Antitrust Laws and Foreign Merger Control Laws; and
(iii) promptly notifying each other of any material communications from or with any Governmental Entity with respect to the transactions contemplated by this Agreement Agreement, and ensuring to (ii) have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) that is in effect and that restricts, prevents or prohibits the extent permitted by law or Governmental Entity that each consummation of the parties is given Merger or the opportunity to attend any meetings with or other appearances before any Governmental Entity with respect to the transactions contemplated by this Agreement.
(dc) Parent willNothing in this Section 6.8 shall require Parent, as promptly as practicable after the date hereof, commence discussions with the CFIUS staff regarding the transactions contemplated by this Agreement, and Parent and the Company will as promptly as practicable after the date hereof cooperate to prepare the notice pursuant to the Exon-Xxxxxx Amendment to be used if Parent deems such filing necessary. For the avoidance of doubt, Parent and the Company shall commence preparation of such notice prior to receipt of or any guidance on a final determination, if any, from the CFIUS staff, and, so long as the Company timely provides all reasonable cooperation in connection therewith, including providing all information reasonably necessary for the preparation of a draft joint notice, Parent shall within twenty (20) Business Days of the date hereof either (i) provide the initial draft joint notice pursuant to the Exon-Xxxxxx Amendment to the CFIUS staff, if Parent deems such filing necessary or (ii) notify the Company that it does not deem such filing necessary.
(e) The Company shall give prompt notice to Parent and Merger Sub, and copies or any Affiliate of any correspondence Parent, Merger Sub, Founder, TPG Star or TPG Biotech to dispose, or from cause the FDAdisposal of, any Foreign Regulatory Entity or Healthcare Governmental Entity containing substantive, factual or legal issues that relate to the compliance status of the Company or any of its subsidiaries and/or any assets or to limit its freedom of their respective products or otherwise provide the other party with reasonable information or respond to reasonable requests for information with respect to such matters. The Company shall give due consideration, following reasonable prior notice to Parent, to any advice from Parent as to how to respond to any material correspondence from the FDA, any Foreign Regulatory Entity or Healthcare Governmental Entity or action with respect to any other material submissions of its businesses, or to consent to any disposition of the Company’s assets or limits of the Company’s freedom of action with respect to any of its businesses, or to commit or agree to any of the foregoing. If , and nothing in this Section 6.8 shall authorize the Company is invited to participate commit or agree to any of the foregoing to obtain any consents, approvals, permits or authorizations to remove any impediments to the Merger relating to any applicable Law or to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any meeting with suit or proceeding relating to any applicable Law, If and to the FDA extent this Section 6.8 shall require the Company to dispose any of its assets or limit its freedom of action with respect to the letter received on May 5any of its businesses, 2011, any warning letter, untitled letter, notice of violation letter, FDA establishment inspection close-out, recall, or any enforcement action initiated by FDA, or invited to participate in any meeting with any Foreign Regulatory Entity pertaining to similar matters, then the Company shall give Parent reasonable prior notice of such meeting and invite one outside representative of Parent (designated by Parent and who is qualified as a subject matter expert reasonably acceptable to the Company) to attend such meeting unless prohibited by the FDA or such Foreign Regulatory Entity. The Company will (i) cooperate with, and provide reasonable access to, Parent’s representative for purposes of reviewing and assessing the Company’s FDA and Healthcare Law compliance programs and procedures, (ii) give due consideration to any resulting recommendations provided by Parent’s representative and (iii) use its reasonable best efforts to implement may expressly condition any such recommendations that it considers, in its own good faith judgment, to be advisable.
(f) Notwithstanding disposal or limitation upon the foregoing provisions consummation of this Section 6.8, commercially and/or competitively sensitive information the Merger and materials of a party will be provided to the other party on an outside counsel-only basis while, to the extent feasible, making a version in which the commercial and/or competitively sensitive information has been redacted available to the other partytransactions contemplated hereby.
Appears in 1 contract
Sources: Merger Agreement (ShangPharma Corp)
Further Action; Efforts. (a) Upon the terms and subject to the conditions of this Agreement, each of the parties shall use its reasonable best efforts to (i) take, or cause to be taken, all actions and to do, or cause to be done, and cooperate with each other in order to do, all things necessary, proper or advisable under applicable Law (including under any Antitrust Law or Foreign Merger Control Law, including in connection with any filing relating to CFIUS, and including obtaining all approvals, consents, waivers of any third party necessary, proper or advisable) to consummate the transactions contemplated by this Agreement as soon as practicable, (ii) do all things necessary, proper or advisable under applicable laws and regulations to consummate at the Merger and the other transactions contemplated by this Agreement as soon as practicableearliest practicable date, including: (Ai) causing the preparation and filing of all forms, registrations and notices required to be filed to consummate the Merger Mergers and the taking of such actions as are necessary to obtain any requisite consent or approval, or expiration of any applicable waiting period under, under the HSR Act; (ii) causing the preparation and filing of all forms, registrations and notices required to be filed with any applicable Antitrust Law other Governmental Entity (including state governments and the New Hampshire Banking Department) or any applicable Foreign Merger Control Law or with respect self-regulatory organization, including NYSE and FINRA, to CFIUS and consummate the Mergers, (Biii) using reasonable best efforts to defend all lawsuits and other proceedings by or before any Governmental Entity or self-regulatory organization challenging this Agreement or the consummation of the Merger Mergers; and (iiiiv) using reasonable best efforts to resolve any objection asserted with respect to the transactions contemplated under this Agreement under any Antitrust Law or Foreign Merger Control Law raised by any Governmental Entity and to prevent the entry of any court order, and to have vacated, lifted, reversed or overturned any injunction, decree, ruling, order or other action of any Governmental Entity that would prevent, prohibit, restrict or delay the consummation of the transactions contemplated by this Agreement. Notwithstanding anything to the contrary set forth in this Agreement, in no event shall Parent or Merger Sub be obligated pursuant to this Agreement to, and the Company shall not without the written consent of Parent, divest or hold separate any assets or to take or commit to take any action which would be reasonably likely to (i) materially adversely impact the benefits expected to be derived by Parent, as a result of the transactions contemplated by this Agreement or (ii) impose material limitations on Parent’s ownership or operation (or that of any of Parent’s subsidiaries or affiliates) of all or a material portion of the Company’s business or assets.
(b) In furtherance and not in limitation of the provisions of Section 6.8(a5.6(a), (i) each of the parties, as applicable, agrees to prepare and file as promptly as reasonably practicable, (A) and in any event by no later than fifteen (15) ten Business Days from the date of this Agreement (i) an appropriate filing of a Notification and Report Form pursuant to the HSR Act and all other regulatory filings, consents and notices related to the HSR Act, and (ii) an appropriate notification form pursuant to as promptly as practicable following the requirements date hereof, each of the Canadian Competition Act, as amended parties shall prepare and (iii) an appropriate notification form pursuant to the requirements of Brazil Antitrust Law of June 11, 1994, as amended, and any regulations and resolutions promulgated in connection therewith, and (iv) any draft file all filings, notifications consents and notices required by any other Governmental Entity or reports required under the EUMR and (B) to the extent requiredself-regulatory organization. Notwithstanding Section 7.3(a), any initial filings, notifications or reports required under the jurisdictions set forth on Section 7.1(b) of the Company Disclosure Schedule. Parent shall pay all filing fees and other charges for the filings required under the HSR Act by the Company and ParentParent required by any Governmental Entity or self-regulatory organization (including under the HSR Act).
(c) If a party receives a request for information or documentary material from any Governmental Entity with respect to this Agreement or the transactions contemplated hereby, including but not limited to a second request for information under the HSR Act, then such party shall in good faith make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, a response which is, at a minimum, in substantial compliance with such request.
(d) The parties shall keep each other apprised of the status of significant matters relating with respect to the completion of the transactions contemplated by matters set forth in this Agreement Section 5.6 and work cooperatively in connection with obtaining the approvals of or clearances from each applicable Governmental Entity, including:
(i) cooperating with each other in connection with filings required to be made by any party under any Antitrust Law or Foreign Merger Control Law and coordinating liaising with each other in relation to each step of the procedure before the relevant Governmental Entities and as to the contents of all material communications with such Governmental Entities. In particular, to the extent permitted by law Law or Governmental Entity, no party will make any material notification to any Governmental Entity in relation to the transactions contemplated hereunder without first providing the other party with a copy of such notification in draft form and giving such other party a reasonable opportunity to discuss its content before it is filed with the relevant Governmental Entities, and such first party shall consider and take account of all reasonable comments timely made by the other party in this respect;
(ii) furnishing, furnishing to the other party all information within its possession that is required for any application or other regulatory filing to be made by the other party pursuant to the applicable Law in connection with the transactions contemplated by this Agreement;
(iii) to the extent permitted by lawLaw or Governmental Entity, to the other party all necessary information that the other party may reasonably request in connection with filings required to be made by such other party under Antitrust Laws and Foreign Merger Control Laws; and
(iii) promptly notifying each other of any material substantive communications from or with any Governmental Entity with respect to the transactions contemplated by matters set forth in this Agreement Section 5.6 and ensuring to the extent permitted by law Law or Governmental Entity that each of the parties is given the opportunity entitled to attend any meetings with or other appearances before any Governmental Entity with respect thereto;
(iv) consulting and cooperating with one another in connection with all 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 Antitrust Laws;
(v) without prejudice to any rights of the parties hereunder, consulting and cooperating in all respects with the other in defending all lawsuits and other proceedings by or before any Governmental Entity challenging this Agreement or the consummation of the transactions contemplated by this Agreement; and
(vi) promptly notifying the other party of any substantive written communications with any Governmental Entity relating to the transactions contemplated hereby, including related to any non-routine regulatory examination, audit or investigation, or otherwise related to the business and operations of the Company and its Subsidiaries.
(de) In addition, Parent willshall take, as promptly as practicable after the date hereofor cause to be taken, commence discussions with the CFIUS staff regarding all other action and to do, or cause to be done, all other things necessary, proper or advisable under all Antitrust Laws to consummate the transactions contemplated by this Agreement, including using its reasonable best efforts to obtain the expiration of all waiting periods and Parent obtain all other approvals and any other consents required to be obtained in order for the Company will as promptly as practicable after parties to consummate the date hereof cooperate to prepare the notice pursuant transactions contemplated by this Agreement. Notwithstanding anything to the Exon-Xxxxxx Amendment to be used if contrary set forth in this Agreement, the obligations of Parent deems such filing necessary. For the avoidance of doubt, under this Section 5.6 shall include Parent and the Company shall commence preparation of such notice prior to receipt of or any guidance on a final determination, if any, from the CFIUS staff, and, so long as the Company timely provides all reasonable cooperation in connection therewith, including providing all information reasonably necessary for the preparation of a draft joint notice, Parent shall within twenty (20) Business Days of the date hereof either committing to: (i) provide the initial draft joint notice pursuant to the Exon-Xxxxxx Amendment to the CFIUS staffselling, if divesting, or otherwise conveying particular assets, categories, portions or parts of assets or businesses of Parent deems such filing necessary or and its controlled Affiliates; (ii) notify agreeing to sell, divest, or otherwise convey any particular asset, category, portion or part of an asset or business of the Company that it does not deem such filing necessary.
(e) The Company shall give prompt notice to Parent and Merger Sub, and copies of any correspondence to its Subsidiaries contemporaneously with or from the FDA, any Foreign Regulatory Entity or Healthcare Governmental Entity containing substantive, factual or legal issues that relate subsequent to the compliance status Company Merger Effective Time; (iii) permitting the Company to sell, divest, or otherwise convey any of the particular assets, categories, portions or parts of assets or business of the Company or any of its subsidiaries and/or any of their respective products Subsidiaries; and (iv) licensing, holding separate or otherwise provide the other party with reasonable information or respond to reasonable requests for information entering into similar arrangements with respect to such matters. The its assets or the assets of the Company shall give due considerationor the conduct of its business or terminating existing relationships and contractual rights and obligations; in each case as a condition, following reasonable prior notice to Parentand subject, to obtaining any advice and all expirations of waiting periods under the HSR Act or consents from Parent as to how to respond to any material correspondence from the FDA, any Foreign Regulatory Entity or Healthcare Governmental Entity or with respect to any other material submissions to any under the Antitrust Laws.
(f) Each of the foregoing. If Parent and the Company will, and will cause their respective Affiliates to, (A) provide such assistance, information and cooperation to each other as is invited reasonably required to participate in any meeting with obtain the FDA approval or non-objection of, or make notice filings with, such Governmental Entities, including FINRA with respect to the letter received on May 5MNIS CMA (which assistance and cooperation may include participation in any membership interviews as may be required by FINRA as well as adhering to any time limitations or time requirements imposed by FINRA for any applications, 2011notices and filings), and (B) provide each other with a reasonable opportunity to review any warning letterapplications, untitled letter, notice of violation letter, FDA establishment inspection closenotices or other filings proposed to be made in connection with obtaining such approvals or non-out, recallobjections, or any enforcement action initiated by FDA, or invited to participate in any meeting with any Foreign Regulatory Entity pertaining to similar matters, then the Company shall give Parent reasonable prior making such notice of such meeting filings (and invite one outside representative of Parent (designated by Parent and who is qualified as a subject matter expert reasonably acceptable to the Company) to attend such meeting unless prohibited by the FDA or such Foreign Regulatory Entity. The Company will (i) cooperate with, and provide reasonable access to, Parent’s representative for purposes of reviewing and assessing the Company’s FDA and Healthcare Law compliance programs and procedures, (ii) give due consideration to any resulting recommendations provided comments and suggestions made with respect thereto by Parent’s representative the other party). In connection therewith, each of Parent and (iii) use the Company will notify the other promptly following the receipt of any comments from any Governmental Entity and of any request by any Governmental Entity for amendments, supplements or additional information in respect of any application, notice or other filing with such Governmental Entity and will supply the other party with copies of all material correspondence between such party or any of its reasonable best efforts to implement affiliates, officers, directors, members, employees, representatives or agents or accounting, financial or legal advisors, on the one hand, and any such recommendations that it considersGovernmental Entity, on the other hand, in connection with obtaining such approvals or non-objections or making such notice filings; provided, that such disclosure is permitted under applicable Law. If the MNIS CMA is not formally approved in writing by FINRA prior to the 31st day following the date that FINRA has deemed the CMA to have been filed with FINRA (unless FINRA has notified MNIS that the CMA is subject to “fast track” review), then MNIS or its own good faith judgment, representatives shall notify (in writing and at least five (5) Business Days prior to be advisablethe anticipated Closing Date) the FINRA Membership Application Program that the parties intend to consummate the Closing pursuant to FINRA Rule 1017(c)(1).
(fg) Notwithstanding the foregoing provisions of this Section 6.8foregoing, commercially and/or competitively sensitive information and materials of a party will be provided to the other party on an outside counsel-only basis while, to the extent feasible, making a version in which the commercial and/or competitively sensitive information has been redacted available to the other party.
(h) For purposes of this Agreement, “Antitrust Law” means the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, foreign Antitrust Laws and all other Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition.
(i) The Company shall obtain, or cause to be obtained, the LLC Unitholder Approval within three (3) Business Days of the date of this Agreement.
Appears in 1 contract
Further Action; Efforts. (a) Upon the terms and subject to the conditions of this Agreement, each of the parties shall use its reasonable best efforts to (i) take, or cause to be taken, all actions and to do, or cause to be done, and cooperate with each other in order to do, all things necessary, proper or advisable (including under any Antitrust Law or Foreign Merger Control Law, including in connection with any filing relating to CFIUS, and including obtaining all approvals, consents, waivers of any third party necessary, proper or advisable) to consummate the transactions contemplated by this Agreement as soon as practicable, practicable and (ii) do all things necessary, proper or advisable under applicable laws and regulations to consummate the Merger and the other transactions contemplated by this Agreement as soon as practicableat the earliest practicable date, including: (A) causing the preparation and filing of all forms, registrations and notices required to be filed to consummate the Merger and the taking of such actions as are necessary to obtain any requisite consent or approvalconsent, or expiration of any applicable waiting period under, the HSR Act, any applicable Antitrust Law or any applicable Foreign Merger Control Law or with respect to CFIUS and (B) using reasonable best efforts to defend all lawsuits and other legal proceedings by or before any Governmental Entity challenging this Agreement or the consummation of the Merger Merger, and (iiiC) using reasonable best efforts to resolve any objection asserted with respect to the transactions contemplated under this Agreement under any Antitrust Law or Foreign Merger Control Law raised by any Governmental Entity and to prevent the entry of any court order, and to have vacated, lifted, reversed or overturned any injunction, decree, ruling, order or other action of any Governmental Entity that would prevent, prohibit, restrict or delay the consummation of the transactions contemplated by this Agreement. Notwithstanding anything to the contrary set forth in this Agreement, in no event shall Parent or Merger Sub be obligated pursuant to this Agreement to, and the Company shall not without the written consent of Parent, divest or hold separate any assets or to take or commit to take any action which would be reasonably likely to (i) materially adversely impact the benefits expected to be derived by Parent, as a result of the transactions contemplated by this Agreement or (ii) impose material limitations on Parent’s ownership or operation (or that of any of Parent’s subsidiaries or affiliates) of all or a material portion of the Company’s business or assets.
(b) In furtherance and not in limitation of the provisions of Section 6.8(a), to the extent required by PRC law, each of the parties, as applicable, agrees to prepare and file as promptly as reasonably practicable, (A) and in any event by no later than fifteen (15) Business Days from the date of this Agreement (i) an appropriate Notification and Report Form initial filing with the PRC Anti-Monopoly Bureau pursuant to the HSR Act, (ii) an appropriate notification form pursuant to the requirements of the Canadian Competition Act, as amended and (iii) an appropriate notification form pursuant to the requirements of Brazil Antitrust Law of June 11, 1994, as amended, and any regulations and resolutions promulgated in connection therewith, and (iv) any draft filings, notifications or reports required under the EUMR and (B) to the extent required, any initial filings, notifications or reports required under the jurisdictions set forth on Section 7.1(b) of the Company Disclosure SchedulePRC Anti-Monopoly Law. Parent shall pay all filing fees and other charges for the filings required under the HSR Act PRC Anti-Monopoly Law by the Company and Parent.
(c) If a party receives a request for information or documentary material from any Governmental Entity with respect to this Agreement or any of the transactions contemplated hereby then such party shall in good faith make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, a response which is, at a minimum, in substantial compliance with such request.
(d) The parties shall keep each other apprised of the status of significant matters relating to the completion of the transactions contemplated by this Agreement and work cooperatively in connection with obtaining the approvals of or clearances from each applicable Governmental Entity, including:
(i) cooperating with each other in connection with filings required to be made by any party (including under any Antitrust Law or Foreign Merger Control Law Law) and coordinating liaising with each other in relation to each step of the procedure before the relevant Governmental Entities and as to the contents of all material communications with such Governmental Entities. In particular, to the extent permitted by law or Governmental Entity, no party will make any material notification to any Governmental Entity in relation to the transactions contemplated hereunder without first providing the other party with a copy of such notification in draft form and giving such other party a reasonable opportunity to discuss its content before it is filed with the relevant Governmental Entities, and such first party shall consider and take account of all reasonable comments timely made by the other party in this respect;
(ii) furnishing, furnishing to the extent permitted by law, to the each other party all necessary information within its possession that the is required for any application or other party may reasonably request in connection with filings required filing to be made by such the other party under Antitrust Laws and Foreign Merger Control Laws; andpursuant to applicable law in connection with the transactions contemplated by this Agreement;
(iii) promptly notifying each other of any material communications from or with any Governmental Entity with respect to the transactions contemplated by this Agreement and ensuring to the extent permitted by law or Governmental Entity that each of the parties is given the opportunity entitled to attend any meetings with or other appearances before any Governmental Entity with respect to the transactions contemplated by this Agreement.;
(div) Parent willconsulting and cooperating with each other in connection with all analyses, as promptly as practicable after 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 date hereofAntitrust Laws; and
(v) without prejudice to any rights of the parties hereunder, commence discussions consulting and cooperating in all respects with each other in defending all lawsuits and other proceedings by or before any Governmental Entity challenging this Agreement or the CFIUS staff regarding consummation of the transactions contemplated by this Agreement, and Parent and the Company will as promptly as practicable after the date hereof cooperate to prepare the notice pursuant to the Exon-Xxxxxx Amendment to be used if Parent deems such filing necessary. For the avoidance of doubt, Parent and the Company shall commence preparation of such notice prior to receipt of or any guidance on a final determination, if any, from the CFIUS staff, and, so long as the Company timely provides all reasonable cooperation in connection therewith, including providing all information reasonably necessary for the preparation of a draft joint notice, Parent shall within twenty (20) Business Days of the date hereof either (i) provide the initial draft joint notice pursuant to the Exon-Xxxxxx Amendment to the CFIUS staff, if Parent deems such filing necessary or (ii) notify the Company that it does not deem such filing necessary.
(e) The Company shall give prompt notice to Parent and Merger Sub, and copies of any correspondence to or from the FDA, any Foreign Regulatory Entity or Healthcare Governmental Entity containing substantive, factual or legal issues that relate to the compliance status of the Company or any of its subsidiaries and/or any of their respective products or otherwise provide the other party with reasonable information or respond to reasonable requests for information with respect to such matters. The Company shall give due consideration, following reasonable prior notice to Parent, to any advice from Parent as to how to respond to any material correspondence from the FDA, any Foreign Regulatory Entity or Healthcare Governmental Entity or with respect to any other material submissions to any of Notwithstanding the foregoing. If the Company is invited to participate in any meeting with the FDA with respect to the letter received on May 5, 2011, any warning letter, untitled letter, notice of violation letter, FDA establishment inspection close-out, recall, or any enforcement action initiated by FDA, or invited to participate in any meeting with any Foreign Regulatory Entity pertaining to similar matters, then the Company shall give Parent reasonable prior notice of such meeting and invite one outside representative of Parent (designated by Parent and who is qualified as a subject matter expert reasonably acceptable to the Company) to attend such meeting unless prohibited by the FDA or such Foreign Regulatory Entity. The Company will (i) cooperate with, and provide reasonable access to, Parent’s representative for purposes of reviewing and assessing the Company’s FDA and Healthcare Law compliance programs and procedures, (ii) give due consideration to any resulting recommendations provided by Parent’s representative and (iii) use its reasonable best efforts to implement any such recommendations that it considers, in its own good faith judgment, to be advisable.
(f) Notwithstanding the foregoing provisions of this Section 6.8, commercially and/or competitively sensitive information and materials of a party will be provided to the other party on an outside outside-counsel-only basis while, to the extent feasible, making a version in which the commercial and/or competitively sensitive information has been redacted available to the other party.
Appears in 1 contract
Further Action; Efforts. (a) Upon Subject to the terms and subject to the conditions of this Agreement, each of the parties Party shall use its reasonable best efforts to (iand, in the case of Parent, cause each of the other Buyer Group Parties to) take, or cause to be taken, all actions and to do, or cause to be done, and cooperate with each other in order to do, all things necessary, proper or advisable (including under any Antitrust Law or Foreign Merger Control Law, including in connection with any filing relating to CFIUS, and including obtaining all approvals, consents, waivers of any third party necessary, proper or advisable) applicable Laws to consummate the transactions contemplated by this Agreement as soon as practicable, including preparing and filing as promptly as practicable, all documentation to effect all necessary notices, reports and other filings and obtaining as promptly as practicable all consents, approvals, registrations, authorizations, waivers, permits, clearances and Orders necessary or advisable to be obtained from any third party or any Governmental Authority in order to consummate the Merger and the other transactions contemplated hereby; provided, that nothing herein shall require the Company or any of its Subsidiaries to take any action that is not contingent upon the Closing.
(b) Without limiting the generality of the foregoing, as soon as practicable after the date of this Agreement, Parent shall (i) use reasonable best efforts to cause the relevant investors to make the filings with the NDRC, the Ministry of Commerce of China and SAFE or their respective local commissions and/or branches pursuant to the Administrative Measures on Enterprise Outbound Investment (企业境外投资管理办法) of the PRC, as amended, and the rules and regulations thereunder, with respect to such investors’ investments in relation to the transactions contemplated by this Agreement and related outbound indirect investments as set out in further detail in Schedule 7.1(c) of this Agreement, and promptly confirm to the Company in writing when such filings have been made, and (ii) do initiate a pre-filing consultation with the NDRC as to whether the Merger is subject to the review of the NDRC under the China FISR Measures, and in the event that the NDRC concludes that the Merger is subject to the review of the NDRC under the China FISR Measures, Parent shall make the filing with the NDRC with assistance with the Company as soon as practicable upon receipt of such notification from the NDRC.
(c) If, at any time after the Effective Time, any further action is necessary or desirable to carry out the purposes of this Agreement, the proper officers and directors of each Party shall use their reasonable best efforts to take all such action. In furtherance of and not in limitation of the foregoing, the Company and Parent shall offer to take (and if such offer is accepted, commit to take) all steps to avoid or eliminate impediments under any Law that may be asserted by any Governmental Authority with respect to the Merger so as to enable the Effective Time to occur prior to the End Date. Without limiting the foregoing, the Company and Parent shall propose, negotiate, offer to commit and effect (and if such offer is accepted, commit to and effect), by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of such assets or businesses of the Company or Parent or any Affiliate of the Company or Parent or, effective as of the Effective Time, the Surviving Company, or their respective Subsidiaries or otherwise offer to take or offer to commit to take any action which it is capable of taking and if the offer is accepted, take or commit to take such action that limits its freedom of action with respect to, or its ability to retain, any of the businesses, services or assets of the Company or Parent or any Affiliate of the Company or Parent, the Surviving Company or their respective Subsidiaries, in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order in any Action, which would otherwise have the effect of preventing or delaying the Effective Time beyond the End Date. Notwithstanding anything to the contrary in this Agreement, the parties hereto understand and agree that in no event shall the Company be required to (and the Company shall not be in breach of this Agreement for failure to) take any action in respect of, or agree or commit to, (x) any sale, divestiture, disposition of any asset or business of the Company or its Subsidiaries or (y) any action to limit its freedom of action, or its ability to retain, any of the businesses, services or assets of the Company or its Subsidiaries, in each case of (x) and (y), unless such action, agreement or commitment is conditional upon the consummation of the Merger and with effect from and after the Effective Time.
(d) Each of Parent and Merger Sub, on the one hand, and the Company, on the other hand, shall use its reasonable best efforts to (and, in the case of Parent, cause each of the other Buyer Group Parties to, in the case of Company, shall cause the Subsidiaries of the Company to) (i) cooperate with each other in connection with any filing or submission with any Governmental Authority and in connection with any investigation or other inquiry by any Governmental Authority, including any proceeding before any Governmental Authority that is initiated by a private party, and take, or cause to be taken, all appropriate action, and to do, or cause to be done, all things necessary, proper or advisable under applicable laws and regulations Laws or otherwise to consummate and make effective the Merger and the other transactions contemplated by this Agreement as soon as practicablehereby, including: (A) causing the preparation and filing of all forms, registrations and notices required to be filed to consummate the Merger and the taking of including employing such actions resources as are necessary to obtain any requisite consent or approval, or expiration of any applicable waiting period under, the HSR Act, any applicable Antitrust Law or any applicable Foreign Merger Control Law or with respect to CFIUS and (B) using reasonable best efforts to defend all lawsuits and other proceedings by or before any Governmental Entity challenging this Agreement or the consummation of the Merger and (iii) resolve any objection asserted with respect to the transactions contemplated under this Agreement under any Antitrust Law or Foreign Merger Control Law raised by any Governmental Entity and to prevent the entry of any court order, and to have vacated, lifted, reversed or overturned any injunction, decree, ruling, order or other action of any Governmental Entity that would prevent, prohibit, restrict or delay the consummation of the transactions contemplated by this Agreement. Notwithstanding anything to the contrary set forth in this Agreement, in no event shall Parent or Merger Sub be obligated pursuant to this Agreement to, and the Company shall not without the written consent of Parent, divest or hold separate any assets or to take or commit to take any action which would be reasonably likely to (i) materially adversely impact the benefits expected to be derived by Parent, as a result of the transactions contemplated by this Agreement or Required Regulatory Approvals; (ii) impose material limitations on Parent’s ownership or operation (or that of any of Parent’s subsidiaries or affiliates) of all or a material portion of subject to applicable Law, furnish to the Company’s business or assets.
(b) In furtherance and not in limitation of the provisions of Section 6.8(a), each of the parties, as applicable, agrees to prepare and file other Party as promptly as reasonably practicablepracticable all information concerning itself, (A) its Subsidiaries, directors, officers and in shareholders and such other matters as may be reasonably necessary or advisable for any event by no later than fifteen (15) Business Days from the date of this Agreement (i) an appropriate Notification and Report Form pursuant to the HSR Act, (ii) an appropriate notification form pursuant to the requirements of the Canadian Competition Act, as amended and (iii) an appropriate notification form pursuant to the requirements of Brazil Antitrust Law of June 11, 1994, as amended, and any regulations and resolutions promulgated in connection therewith, and (iv) any draft filings, notifications application or reports required under the EUMR and (B) to the extent required, any initial filings, notifications or reports required under the jurisdictions set forth on Section 7.1(b) of the Company Disclosure Schedule. Parent shall pay all other filing fees for the filings required under the HSR Act by the Company and Parent.
(c) The parties shall keep each other apprised of the status of significant matters relating to the completion of the transactions contemplated by this Agreement and work cooperatively in connection with obtaining the approvals of or clearances from each applicable Governmental Entity, including:
(i) cooperating with each other in connection with filings required to be made by any party under any Antitrust Law or Foreign Merger Control Law and coordinating with each the other in relation to each step of the procedure before the relevant Governmental Entities and as to the contents of all material communications with such Governmental Entities. In particular, to the extent permitted by law or Governmental Entity, no party will make any material notification Party to any Governmental Entity in relation Authority pursuant to the transactions contemplated hereunder without first providing the other party with a copy of such notification in draft form and giving such other party a reasonable opportunity to discuss its content before it is filed with the relevant Governmental Entities, and such first party shall consider and take account of all reasonable comments timely made by the other party in this respect;
(ii) furnishing, to the extent permitted by law, to the other party all necessary information that the other party may reasonably request any applicable Law in connection with filings required to be made by such other party under Antitrust Laws and Foreign Merger Control Laws; and
(iii) promptly notifying each other of any material communications from or with any Governmental Entity with respect to the transactions contemplated by this Agreement and ensuring to the extent permitted by law or Governmental Entity that each of the parties is given the opportunity to attend any meetings with or other appearances before any Governmental Entity with respect to the transactions contemplated by this Agreement.
(d) Parent will, as promptly as practicable after the date hereof, commence discussions with the CFIUS staff regarding the transactions contemplated by this Agreement, including application or filing to obtain the Required Regulatory Approvals; (iii) promptly notify the other Party of any substantive (whether verbal or written) communication received by such Party from, or given by such Party to, any Governmental Authority regarding any of the transactions contemplated hereby and, subject to applicable Law, furnish the other Party promptly with copies of all written correspondence and Parent communications between them and any Governmental Authority with respect to the Company will transactions contemplated hereby, including communications and correspondences in relation to obtaining the Required Regulatory Approvals; (iv) respond as promptly as reasonably practicable after to any inquiries received from, and supply as promptly as reasonably practicable any additional information or documentation that may be requested by, any Governmental Authority in connection with the date hereof cooperate transactions contemplated hereby, including inquiries, information or documentation in relation to prepare obtaining the notice pursuant Required Regulatory Approvals; and (v) permit the other Party to review, and to the Exon-Xxxxxx Amendment extent practicable consult with the other Party in advance and consider in good faith the other Party’s reasonable comments in connection with, any material communication with any Governmental Authority in connection with the transactions contemplated hereby, including communication in relation to obtaining the Required Regulatory Approvals; provided that each Party shall be used if Parent deems such filing necessary. For entitled to redact materials (1) as necessary to comply with contractual arrangements, (2) as necessary to address reasonable legal privilege or confidentiality concerns, determined based on the avoidance of doubt, Parent and the Company shall commence preparation advice of such notice prior to receipt of Party’s outside legal counsel, or any guidance on a final determination, if any, from the CFIUS staff, and, so long as the Company timely provides all reasonable cooperation in connection therewith, including providing all information reasonably necessary for the preparation of a draft joint notice, Parent shall within twenty (203) Business Days of the date hereof either (i) provide the initial draft joint notice pursuant to the Exon-Xxxxxx Amendment extent relating to the CFIUS staff, if Parent deems such filing necessary or (ii) notify Company’s valuation and similar matters relating to the Company that it does not deem such filing necessaryMerger.
(e) The Company No Party shall give prompt notice to Parent and Merger Sub, and copies of any correspondence to or from the FDA, any Foreign Regulatory Entity or Healthcare Governmental Entity containing substantive, factual or legal issues that relate to the compliance status of the Company or any of its subsidiaries and/or any of their respective products or otherwise provide the other party with reasonable information or respond to reasonable requests for information with respect to such matters. The Company shall give due consideration, following reasonable prior notice to Parent, to any advice from Parent as to how to respond to any material correspondence from the FDA, any Foreign Regulatory Entity or Healthcare Governmental Entity or with respect to any other material submissions to any of the foregoing. If the Company is invited to independently participate in any substantive meeting or communication with the FDA with any Governmental Authority in respect of any filing, investigation or other inquiry relating to the letter received on May 5, 2011, any warning letter, untitled letter, notice of violation letter, FDA establishment inspection close-out, recall, or any enforcement action initiated by FDA, or invited to participate in any meeting with any Foreign Regulatory Entity pertaining to similar matters, then transactions contemplated hereby without giving the Company shall give Parent reasonable other Parties sufficient prior notice of such meeting and invite one outside representative of Parent (designated by Parent and who is qualified as a subject matter expert reasonably acceptable to the Company) to attend such meeting unless prohibited by the FDA or such Foreign Regulatory Entity. The Company will (i) cooperate with, and provide reasonable access to, Parent’s representative for purposes of reviewing and assessing the Company’s FDA and Healthcare Law compliance programs and procedures, (ii) give due consideration to any resulting recommendations provided by Parent’s representative and (iii) use its reasonable best efforts to implement any such recommendations that it considers, in its own good faith judgment, to be advisable.
(f) Notwithstanding the foregoing provisions of this Section 6.8, commercially and/or competitively sensitive information and materials of a party will be provided to the other party on an outside counsel-only basis whilecommunication and, to the extent feasiblepermitted by such Governmental Authority, making a version in which the commercial and/or competitively sensitive information has been redacted available to giving the other partyParties the opportunity to attend or participate in such meeting or communication.
Appears in 1 contract
Sources: Merger Agreement (Hollysys Automation Technologies, Ltd.)
Further Action; Efforts. (a) Upon the terms and subject to the conditions of this Agreement, each of the parties shall use its reasonable best efforts to (i) take, or cause to be taken, all actions and to do, or cause to be donedone (but subject to the other provisions of this Section 5.7), and cooperate with each other in order to do, all things necessary, proper or advisable under applicable Law (including under any Antitrust Law or Foreign Merger Control Law, including in connection with any filing relating to CFIUS, and including obtaining all approvals, consents, waivers of any third party necessary, proper or advisable(as defined below)) to consummate the transactions contemplated by this Agreement as soon as practicable, (ii) do all things necessary, proper or advisable under applicable laws and regulations to consummate the Merger and the other transactions contemplated by this Agreement as soon as practicableat the earliest practicable date, including: (Ai) causing the preparation and filing of all forms, registrations and notices required to be filed to consummate the Merger and the taking of such actions as are necessary to obtain any requisite consent or approvalconsent, non-action or expiration of any applicable waiting period under, under the HSR Act, any applicable Antitrust Law the Competition Act or any applicable other Foreign Merger Control Law or with respect to CFIUS and Antitrust Law; (Bii) using reasonable best efforts to defend all lawsuits and other proceedings by or before any Governmental Entity challenging this Agreement or the consummation of the Merger Merger; and (iii) using reasonable best efforts to resolve any objection asserted with respect to the transactions contemplated under this Agreement Agreement, including the Merger, under any Antitrust Law or Foreign Merger Control Law raised by any Governmental Entity and to prevent the entry of any court order, and to have vacated, lifted, reversed or overturned any injunction, decree, ruling, order or other action of any Governmental Entity Entity, that would prevent, prohibit, restrict or delay the consummation of the transactions contemplated by this Agreement. Notwithstanding anything to , including the contrary set forth in this Agreement, in no event shall Parent or Merger Sub be obligated pursuant to this Agreement to, and the Company shall not without the written consent of Parent, divest or hold separate any assets or to take or commit to take any action which would be reasonably likely to (i) materially adversely impact the benefits expected to be derived by Parent, as a result of the transactions contemplated by this Agreement or (ii) impose material limitations on Parent’s ownership or operation (or that of any of Parent’s subsidiaries or affiliates) of all or a material portion of the Company’s business or assetsMerger.
(b) In furtherance and not in limitation of the provisions of Section 6.8(a5.7(a), each of the parties, as applicable, agrees to prepare and file as promptly as reasonably practicable, (A) and in any event by no later than fifteen (15) five Business Days from the date of this Agreement (i) an appropriate Agreement, a filing of a Notification and Report Form pursuant to the HSR Act. In addition, with respect to the Competition Act Approval, (iia) Parent shall file a submission with the Commissioner requesting an appropriate notification form pursuant to advance ruling certificate (“ARC”) or, in lieu thereof, a No-Action Letter (“ARC Request”) no later than ten Business Days from the requirements date of the Canadian Competition Act, as amended and (iii) an appropriate notification form pursuant to the requirements of Brazil Antitrust Law of June 11, 1994, as amended, and any regulations and resolutions promulgated in connection therewiththis Agreement, and (ivb) any draft filingsunless otherwise agreed by the parties, notifications or reports Parent and the Company shall each file with the Commissioner the notice and information required under the EUMR and (B) to the extent required, any initial filings, notifications or reports required under the jurisdictions set forth on Section 7.1(bsection 114(1) of the Company Disclosure ScheduleCompetition Act no later than five Business Days following the date of the filing of the ARC Request. Parent shall pay all filing fees and other charges for the filings required under the HSR Act by the Company and Parent.
(c) If a party receives a request for information or documentary material from any Governmental Entity with respect to this Agreement or the Merger or any of the other transactions contemplated hereby, including but not limited to a Second Request for Information under the HSR Act, then such party shall in good faith make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, a response which is, at a minimum, in substantial compliance with such request.
(d) The parties shall keep each other apprised of the status of significant matters relating to the completion of the Merger and the other transactions contemplated by this Agreement and work cooperatively in connection with obtaining the approvals of or clearances from each applicable Governmental Entity, including:
(i) cooperating with each other in connection with filings required to be made by any party under any Antitrust Law or Foreign Merger Control Law and coordinating liaising with each other in relation to each step of the procedure before the relevant Governmental Entities and as to the contents of all material communications with such Governmental Entities. In particular, to the extent permitted by law Law or Governmental Entity, no party will make any material notification to any Governmental Entity in relation to the transactions contemplated hereunder hereunder, without first providing the other party with a copy of such notification in draft form and giving such other party a reasonable opportunity to discuss its content before it is filed with the relevant Governmental Entities, and such first party shall consider and take account of all reasonable comments timely made by the other party in this respect;
(ii) furnishing, to the extent permitted by law, furnishing to the other party all necessary information within its possession that the is required for any application or other party may reasonably request in connection with filings required filing to be made by such the other party under Antitrust Laws and Foreign pursuant to applicable Law in connection with this Agreement or the consummation of the Merger Control Laws; andor the other transactions contemplated by this Agreement;
(iii) promptly notifying each other of any material communications from or with any Governmental Entity with respect to the Merger or the other transactions contemplated by this Agreement and ensuring to the extent permitted by law Law or Governmental Entity that each of the parties is given the opportunity entitled to attend any meetings with or other appearances before any Governmental Entity with respect to this Agreement or the consummation of the Merger or the other transactions contemplated by this Agreement;
(iv) consulting and cooperating with one another in connection with all 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 Antitrust Laws; and
(v) without prejudice to any rights of the parties hereunder, consulting and cooperating in all respects with the other in defending all lawsuits and other proceedings by or before any Governmental Entity challenging this Agreement or the consummation of the Merger or the other transactions contemplated by this Agreement.
(de) In addition, Parent willshall take, as promptly as practicable after or cause to be taken, all other action and to do, or cause to be done, all other things necessary, proper or advisable under all Antitrust Laws to consummate the date hereofMerger and the other transactions contemplated by this Agreement, commence discussions with including using its reasonable best efforts to obtain the CFIUS staff regarding expiration of all waiting periods and obtain all other approvals and any other consents or non-actions required to be obtained in order for the parties to consummate the transactions contemplated by this Agreement, and Parent and including the Company will as promptly as practicable after the date hereof cooperate to prepare the notice pursuant Merger. Notwithstanding anything to the Exon-Xxxxxx Amendment to be used if contrary set forth in this Agreement, the obligations of Parent deems such filing necessary. For the avoidance of doubt, under this Section 5.7 shall include Parent and the Company shall commence preparation of such notice prior to receipt of or any guidance on a final determination, if any, from the CFIUS staff, and, so long as the Company timely provides all reasonable cooperation in connection therewith, including providing all information reasonably necessary for the preparation of a draft joint notice, Parent shall within twenty (20) Business Days of the date hereof either committing to: (i) provide the initial draft joint notice pursuant to the Exon-Xxxxxx Amendment to the CFIUS staffselling, if divesting, or otherwise conveying particular assets, categories, or portions or parts of assets or businesses of Parent deems such filing necessary or and its Affiliates; (ii) notify agreeing to sell, divest, or otherwise convey any particular asset, category, or portion or part of an asset or business of the Company that it does not deem such filing necessary.
(e) The Company shall give prompt notice to Parent and Merger Sub, and copies of any correspondence to its Subsidiaries contemporaneously with or from the FDA, any Foreign Regulatory Entity or Healthcare Governmental Entity containing substantive, factual or legal issues that relate subsequent to the compliance status Effective Time; (iii) permitting the Company to sell, divest, or otherwise convey any of the particular assets, categories, or portions or parts of assets or business of the Company or any of its subsidiaries and/or any of their respective products Subsidiaries prior to the Effective Time; and (iv) licensing, holding separate or otherwise provide the other party with reasonable information or respond to reasonable requests for information entering into similar arrangements with respect to such matters. The its respective assets or the assets of the Company or conduct of business arrangements or terminating any and all existing relationships and contractual rights and obligations as a condition to obtaining any and all expirations of waiting periods under the HSR Act or the Competition Act or consents or non- actions from any Governmental Entity, including the Commissioner, necessary to consummate the Merger and the other transactions contemplated hereby; provided, that Parent and its Affiliates shall not be required to take, or cause to be taken (and the Company shall give due considerationnot take, following reasonable without the prior notice written consent of Parent), any actions, that would, individually or in the aggregate, reasonably be expected to result in a material adverse effect on the business, assets, financial condition or results of operations of Parent, the Company and its Subsidiaries, taken as a whole. Parent and its Affiliates shall not acquire or agree to acquire any advice from Parent as rights, assets, business, Person or division thereof (through acquisition, license, joint venture, collaboration or otherwise) if such acquisition would reasonably be expected to how to respond to any material correspondence from materially increase the FDArisk of not obtaining, or materially delay receipt of, any Foreign Regulatory Entity applicable clearance, consent, approval or Healthcare Governmental Entity waiver under the HSR Act or Competition Act with respect to any other material submissions to any of the foregoing. If the Company is invited to participate in any meeting with the FDA with respect to the letter received on May 5, 2011, any warning letter, untitled letter, notice of violation letter, FDA establishment inspection close-out, recall, or any enforcement action initiated by FDA, or invited to participate in any meeting with any Foreign Regulatory Entity pertaining to similar matters, then the Company shall give Parent reasonable prior notice of such meeting and invite one outside representative of Parent (designated by Parent and who is qualified as a subject matter expert reasonably acceptable to the Company) to attend such meeting unless prohibited by the FDA or such Foreign Regulatory Entity. The Company will (i) cooperate with, and provide reasonable access to, Parent’s representative for purposes of reviewing and assessing the Company’s FDA and Healthcare Law compliance programs and procedures, (ii) give due consideration to any resulting recommendations provided by Parent’s representative and (iii) use its reasonable best efforts to implement any such recommendations that it considers, in its own good faith judgment, to be advisablethis Agreement.
(f) Notwithstanding the foregoing provisions of this Section 6.8foregoing, all commercially and/or competitively sensitive information and materials of a party will be provided to the other party parties on an outside counsel-counsel only basis while, to the extent feasible, making a version in which the commercial and/or competitively sensitive information has been redacted available to the other party.
(g) For purposes of this Agreement, “Antitrust Law” means the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, the Competition Act, any other Foreign Antitrust Laws and all other Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition.
Appears in 1 contract
Sources: Merger Agreement (Foundation Building Materials, Inc.)
Further Action; Efforts. (a) Upon Subject to the terms and subject to the conditions of this Agreement, each of the parties shall hereto agrees to use its reasonable best efforts to consummate the transactions contemplated hereby as soon as practicable after the date hereof. Subject to the terms and conditions of this Agreement, without limiting the foregoing, (i) each of the parties hereto agrees to use its reasonable best efforts to take, or cause to be taken, all actions and necessary to do, or cause to be done, and cooperate comply promptly with each other in order to do, all things necessary, proper or advisable (including under any Antitrust Law or Foreign Merger Control Law, including in connection with any filing relating to CFIUS, and including obtaining all approvals, consents, waivers of any third party necessary, proper or advisable) to consummate the transactions contemplated by this Agreement as soon as practicable, (ii) do all things necessary, proper or advisable legal requirements under applicable laws and regulations to consummate the Merger and the other transactions contemplated by this Agreement as soon as practicable, including: (A) causing the preparation and filing of all forms, registrations and notices required to Law that may be filed to consummate the Merger and the taking of such actions as are necessary to obtain any requisite consent or approval, or expiration of any applicable waiting period under, the HSR Act, any applicable Antitrust Law or any applicable Foreign Merger Control Law or with respect to CFIUS and (B) using reasonable best efforts to defend all lawsuits and other proceedings by or before any Governmental Entity challenging this Agreement or the consummation of the Merger and (iii) resolve any objection asserted imposed on itself with respect to the transactions contemplated under this Agreement under hereby (which actions shall include furnishing all information requested in connection with approvals of or filings with any Antitrust Law Governmental Entity) and shall promptly cooperate with and furnish information to each other in connection with any such requests to any of them or Foreign Merger Control Law raised by any of their Affiliates in connection with the transactions contemplated hereby and (ii) each of the parties hereto shall use its reasonable best efforts to obtain (and shall cooperate with each other in obtaining) any consent, authorization, order or approval of, or any exemption by, any Governmental Entity and required or advisable to prevent be obtained or made by the entry Sellers or the Buyer or any of any court order, and to have vacated, lifted, reversed or overturned any injunction, decree, ruling, order or other action of any Governmental Entity that would prevent, prohibit, restrict or delay the consummation of their Affiliates in connection with the transactions contemplated by this Agreement. Notwithstanding anything Subject to the contrary terms and conditions set forth in this Agreement, in no event shall Parent or Merger Sub be obligated pursuant to this Agreement to, and the Company shall not without the written consent of Parent, divest or hold separate any assets or to take or commit to take any action which would be reasonably likely to (i) materially adversely impact the benefits expected to be derived by Parent, as a result of the transactions contemplated by this Agreement or (ii) impose material limitations on Parent’s ownership or operation (or that of any of Parent’s subsidiaries or affiliates) of all or a material portion of the Company’s business or assets.
(b) In furtherance and not in limitation of the provisions of Section 6.8(a), each of the parties, as applicable, parties hereto agrees to prepare and file as promptly as reasonably practicable, (A) and in any event by no later than fifteen (15) Business Days from the date of this Agreement (i) an make all appropriate Notification and Report Form pursuant to the HSR Act, (ii) an appropriate notification form pursuant to the requirements of the Canadian Competition Act, as amended and (iii) an appropriate notification form pursuant to the requirements of Brazil Antitrust Law of June 11, 1994, as amended, and any regulations and resolutions promulgated in connection therewith, and (iv) any draft filings, notifications or reports required under the EUMR notices and (B) to the extent required, any initial filings, notifications or reports required under the jurisdictions set forth on Section 7.1(b) of the Company Disclosure Schedule. Parent shall pay all filing fees for the filings required under the HSR Act by the Company and Parent.
(c) The parties shall keep each other apprised of the status of significant matters relating to the completion of the transactions contemplated by this Agreement and work cooperatively in connection with obtaining the approvals of or clearances from each applicable Governmental Entity, including:
(i) cooperating with each other in connection with filings required to be made by any party under any Antitrust Law or Foreign Merger Control Law and coordinating with each other in relation to each step of the procedure before the relevant Governmental Entities and as to the contents of all material communications with such Governmental Entities. In particular, to the extent permitted by law or Governmental Entity, no party will make any material notification to any Governmental Entity in relation to the transactions contemplated hereunder without first providing the other party with a copy of such notification in draft form and giving such other party a reasonable opportunity to discuss its content before it is filed with the relevant Governmental Entities, and such first party shall consider and take account of all reasonable comments timely made by the other party in this respect;
(ii) furnishing, to the extent permitted by law, to the other party all necessary information that the other party may reasonably request in connection with filings required to be made by such other party under Antitrust Laws and Foreign Merger Control Laws; and
(iii) promptly notifying each other of any material communications from or registrations with any Governmental Entity with respect to the transactions contemplated hereby as promptly as practicable after the date of this Agreement in order to obtain any consent, authorization, order or approval of, or any exemption by, any Governmental Entity required or advisable to be obtained or made by the parties hereto or any of their Affiliates in connection with the taking of any action contemplated thereby or by this Agreement and ensuring Agreement.
(b) Subject to the extent permitted by law or Governmental Entity that terms and conditions set forth in this Agreement, without limiting the generality of the undertakings referenced in Section 6.4(a), each of the parties is given Sellers (in the opportunity case of clauses ii of this Section 6.4(b) and the Buyer (in all cases set forth below) agree to attend take or cause to be taken the following actions:
(i) the prompt use of its best efforts to avoid the entry of any meetings with permanent, preliminary or temporary injunction or other appearances before any Governmental Entity with respect to order, decree, decision, determination or judgment that would delay, restrain, prevent, enjoin or otherwise prohibit the consummation of the transactions contemplated by this Agreement; and
(ii) the prompt use of its best efforts to take, in the event that any permanent, preliminary or temporary injunction, decision, order, judgment, determination or decree is entered or issued, or becomes reasonably foreseeable to be entered or issued, in any proceeding, review or inquiry of any kind that would make the consummation of the transactions contemplated hereby in accordance with the terms of this Agreement unlawful or that would delay, restrain, prevent, enjoin or otherwise prohibit the consummation of the transactions contemplated hereby, any and all steps (including, the appeal thereof, the posting of a bond or the taking of the steps contemplated by clause i of this Section 6.4b)) necessary to resist, vacate, modify, reverse, suspend, prevent, eliminate, avoid or remove such actual, anticipated or threatened injunction, decision, order, judgment, determination or decree so as to permit such consummation on a schedule as close as possible to that contemplated by this Agreement.
(dc) Parent willSubject to applicable Law, as each party to this Agreement shall promptly as practicable after notify the date hereof, commence discussions with other party of any communication it receives from any Governmental Entity relating to the CFIUS staff regarding matters that are the transactions contemplated by subject of this Agreement, and Parent and shall permit the Company will as promptly as practicable after the date hereof cooperate other party to prepare the notice pursuant review in advance any proposed communication by such party to the Exon-Xxxxxx Amendment to be used if Parent deems such filing necessary. For the avoidance of doubt, Parent and the Company shall commence preparation of such notice prior to receipt of or any guidance on a final determination, if any, from the CFIUS staff, and, so long as the Company timely provides all reasonable cooperation in connection therewith, including providing all information reasonably necessary for the preparation of a draft joint notice, Parent shall within twenty (20) Business Days of the date hereof either (i) provide the initial draft joint notice pursuant to the Exon-Xxxxxx Amendment to the CFIUS staff, if Parent deems such filing necessary or (ii) notify the Company that it does not deem such filing necessary.
(e) The Company shall give prompt notice to Parent and Merger SubGovernmental Entity, and shall provide each other with copies of any all correspondence to or from the FDA, any Foreign Regulatory Entity or Healthcare Governmental Entity containing substantive, factual or legal issues that relate to the compliance status of the Company communications between them or any of its subsidiaries and/or their Affiliates, on the one hand, and any of their respective products or otherwise provide the other party with reasonable information or respond to reasonable requests for information with respect to such matters. The Company shall give due consideration, following reasonable prior notice to Parent, to any advice from Parent as to how to respond to any material correspondence from the FDA, any Foreign Regulatory Entity or Healthcare Governmental Entity or with respect members of its staff, on the other hand, subject to any other material submissions this Section 6.4. No party to any of the foregoing. If the Company is invited to participate in any meeting with the FDA with respect to the letter received on May 5, 2011, any warning letter, untitled letter, notice of violation letter, FDA establishment inspection close-out, recall, or any enforcement action initiated by FDA, or invited this Agreement shall agree to participate in any meeting with any Foreign Regulatory Governmental Entity pertaining to similar matters, then the Company shall give Parent reasonable prior notice in respect of such meeting and invite one outside representative of Parent (designated by Parent and who is qualified as a subject matter expert reasonably acceptable to the Company) to attend such meeting unless prohibited by the FDA or such Foreign Regulatory Entity. The Company will (i) cooperate with, and provide reasonable access to, Parent’s representative for purposes of reviewing and assessing the Company’s FDA and Healthcare Law compliance programs and procedures, (ii) give due consideration to any resulting recommendations provided by Parent’s representative and (iii) use its reasonable best efforts to implement any such recommendations that filings, investigation or other inquiry unless it considers, in its own good faith judgment, to be advisable.
(f) Notwithstanding the foregoing provisions of this Section 6.8, commercially and/or competitively sensitive information and materials of a party will be provided to consults with the other party on an outside counsel-only basis whileparties in advance and, to the extent feasiblepermitted by such Governmental Entity, making a version in which gives the commercial and/or competitively sensitive information has been redacted available other parties the opportunity to attend and participate at such meeting. Subject to the Confidentiality Agreement and to this Section 6.4(c), the parties to this Agreement will coordinate and cooperate fully with each other partyin exchanging such information and providing such assistance as the other parties may reasonably request in connection with the foregoing.
(d) The Sellers shall use commercially reasonable efforts to obtain any consent of any Person (other than Governmental Entities) required to consummate and make effective the transactions contemplated by this Agreement. The Buyer agrees to cooperate reasonably with the Sellers in obtaining such consents. To the extent that the Sellers and the Buyer are unable to obtain any required Third Party Consents prior to the Closing, the parties shall seek such consents following the Closing in accordance with Section 6.12. For purposes of this Section 6.4, the term “commercially reasonable efforts” shall not be deemed to require any Person to pay or commit to pay any amount to (or incur any obligation in favor of) any Person from whom any consent or waiver may be required.
Appears in 1 contract
Further Action; Efforts. (a) Except with respect to matters described in Section 6.6(b), upon the terms and subject to the conditions of this Agreement, each of the parties hereto agrees to use its reasonable best efforts to take, or cause to be taken, all appropriate action and to do, or cause to be done, all things necessary, proper or advisable under applicable Law or otherwise to consummate the Merger and the other transactions contemplated hereby at the earliest practicable date; provided that the parties hereto understand and agree that the reasonable best efforts of any party hereto shall not be deemed to include (A) entering into any settlement, undertaking, consent decree, stipulation or agreement with any Governmental Entity in connection with the transactions contemplated hereby or (B) selling, divesting or otherwise holding separate (including by establishing a trust or otherwise), or taking any other action (or otherwise agreeing to do any of the foregoing) with respect to any of its or the Surviving Corporation’s Subsidiaries or any of their respective Affiliates’ businesses, assets or properties, except where the taking of an action specified in (A) or (B) would not reasonably be expected to cause a loss of rights (other than loss of customers) or increase in obligations of Parent and its Subsidiaries (including the Company), taken as a whole, following the Closing.
(b) Upon the terms and subject to the conditions of this Agreement, each of the parties shall Parent and Merger Sub agrees to use its reasonable best efforts to (i) take, or cause to be taken, all actions and to do, or cause to be done, and cooperate with each other the Company in order to do, all things necessary, proper or advisable (including under any Antitrust Law or Foreign Merger Control Law, including in connection with any filing relating to CFIUS, and including obtaining all approvals, consents, waivers of any third party necessary, proper or advisable) to consummate the transactions contemplated by this Agreement as soon as practicable, (ii) do all things necessary, proper or advisable under applicable laws and regulations Regulatory Laws to consummate the Merger and at the other transactions contemplated by this Agreement as soon as practicableearliest practicable date, including: (A) causing including using reasonable best efforts to cause the preparation and filing of all forms, registrations and notices required to be filed to consummate the Merger and the taking of such actions as are necessary to obtain any requisite consent or approval, or expiration of any applicable waiting period under, the HSR Act, any applicable Antitrust Law or any applicable Foreign Merger Control Law or with respect to CFIUS and (B) using reasonable best efforts to defend all lawsuits and other proceedings by or before any Governmental Entity challenging this Agreement or the consummation of the Merger and (iii) resolve any objection asserted with respect to the transactions contemplated under this Agreement under any Antitrust Law or Foreign Merger Control Law raised by any Governmental Entity and to prevent the entry of any court order, and to have vacated, lifted, reversed or overturned any injunction, decree, ruling, order or other action of any Governmental Entity that would prevent, prohibit, restrict or delay the consummation of the transactions contemplated by this AgreementRegulatory Laws. Notwithstanding anything to the contrary set forth in this Agreement, in no event shall Parent or Merger Sub be obligated pursuant to this Agreement to, and the Company shall not without each be responsible for fifty percent (50%) all filing fees and other charges for the written consent of filings required under the Regulatory Laws by the Company, Merger Sub and Parent, divest or hold separate other than with respect to any assets or to take or commit to take any action which would be reasonably likely to (i) materially adversely impact filings required in the benefits expected to be derived by Parent, as a result People’s Republic of the transactions contemplated by this Agreement or (ii) impose material limitations on Parent’s ownership or operation (or that of any of Parent’s subsidiaries or affiliates) of all or a material portion of the Company’s business or assetsChina.
(bc) In furtherance and not in limitation of the provisions of Section 6.8(a6.6(a) and 6.6(b), each of the parties, as applicable, agrees to prepare and file as promptly as reasonably practicable, (A) and in any event with respect to clause (i) below, by no later than fifteen (15) Business Days from the after date of this Agreement Agreement, (i) an appropriate filing of a Notification and Report Form pursuant to the HSR ActAct and (ii) any filings necessary, proper or advisable under any other Regulatory Law.
(d) In furtherance and not in limitation of the provisions of Section 6.6(a), 6.6(b) and 6.6(c), each of the parties shall use its reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to achieve CFIUS clearance as set forth in Section 7.1(d) hereof, including (i) within twenty (20) Business Days after the date of this Agreement, make the draft filing with CFIUS contemplated under 31 C.F.R. § 800.401(f) with respect to the transactions contemplated hereby and engage in the pre-notice consultation process with CFIUS (it being understood and agreed that while it is the general intention of the parties to make such filing as promptly as is reasonably practicable following execution of this Agreement, neither party shall make such filing until such time as each party mutually agrees), (ii) an appropriate following such pre-notice consultation, as promptly as practicable and, in any event, within seven (7) Business Days of CFIUS notification form pursuant that the draft filing meets all requirements of 31 C.F.R. § 800.402 of the regulations and is, accordingly, complete, file with CFIUS a voluntary notice as contemplated by 31 C.F.R. § 800.401(a) and, in the case of Parent and Merger Sub, the personal identifier information required to be submitted separately from such notice as contemplated by 31 C.F.R. § 800.402(c)(6)(vi)(B) with respect to the requirements transactions contemplated hereby, and in the case of Guarantor, the Canadian Competition Actrepresentation that, in Guarantor’s opinion, neither Guarantor, Parent nor Merger Sub is controlled by a foreign government, as amended and required under 31 C.F.R. § 800.402(j)(2), (iii) an appropriate notification form pursuant to the requirements of Brazil Antitrust Law of June 11, 1994, as amendedpromptly, and in all events consistent with any regulations and resolutions promulgated deadline imposed under CFIUS or other applicable Law, comply with any request received by any of them or any of their respective Subsidiaries from any Governmental Entity for any certification, additional information, documents or other materials in connection therewithrespect of such notice or such transactions, and (iv) ensure that any draft filingsinformation furnished in respect of this Section 6.6(d) is true, notifications or reports required under the EUMR complete and correct in all material respects and (Bv) cooperate with each other in connection with any such filing and in connection with resolving any investigation or other inquiry of any Governmental Entity under Exon-Xxxxxx with respect to the extent requiredany such filing or any such transaction. Except as otherwise provided in Section 6.6(a), any initial filingsnothing in this Agreement shall be construed as requiring that Guarantor, notifications Parent, Merger Sub or reports required under the jurisdictions set forth on Section 7.1(b) of the Company Disclosure Schedule. to agree to accept any CFIUS mitigation measure that is not acceptable to Parent shall pay all filing fees for the filings required under the HSR Act by the Company and Parentin its sole discretion.
(ce) The parties Each of Parent and Merger Sub, on the one hand, and the Company, on the other hand, shall keep each the other apprised of the status of significant matters relating to the completion of the Merger and the other transactions contemplated by this Agreement hereby and work cooperatively in connection with promptly obtaining the approvals of or clearances from each applicable Governmental EntityEntity with respect to the same, including:
(i) cooperating with each other in connection with filings required to be made by any party under any Antitrust Law or Foreign Merger Control Law and coordinating liaising with each other in relation to each step of the procedure before the relevant Governmental Entities and as to the contents of all material communications with such Governmental EntitiesEntities relating to the transactions contemplated hereby. In particular, to To the extent permitted by law Law or Governmental Entity, no party neither Parent and Merger Sub, on the one hand, nor the Company, on the other hand, will make any material notification to any Governmental Entity or filing in relation to the transactions contemplated hereunder hereby without first providing the other party with a copy of such notification or filing in draft form and giving such the other party a reasonable opportunity to review and discuss its content before it is filed with the relevant Governmental Entities, and the party making such first party notification shall consider and take account of incorporate all reasonable comments timely made by the other party in this respectrespect and once filed shall promptly furnish the other with a copy of any such notification or filing;
(ii) furnishing, timely furnishing to the extent permitted by law, to the each other party all necessary information within its possession that the is required for any notification or other party may reasonably request in connection with filings required filing to be made by such the other party under Antitrust Laws pursuant to applicable Law in connection with the transactions contemplated hereby; provided, however, that materials may be redacted as necessary to (i) comply with contractual arrangements or applicable Law, (ii) to address good faith legal privilege or confidentiality concern, and Foreign Merger Control Laws; and(iii) to remove references concerning the valuation;
(iii) promptly notifying each other of any material communications from or with any Governmental Entity with respect to the transactions contemplated by this Agreement hereby and ensuring to the extent permitted by law Law or Governmental Entity that each of the parties is party and its legal counsel are given the opportunity to attend and participate in any meetings with meetings, discussions with, or other appearances before before, whether in person, by telephone or otherwise, any Governmental Entity with respect to the transactions contemplated by this Agreement.hereby;
(div) Parent will, as promptly as practicable after the date hereof, commence discussions consulting and cooperating with the CFIUS staff regarding the transactions contemplated by this Agreement, and Parent and the Company will as promptly as practicable after the date hereof cooperate to prepare the notice pursuant to the Exon-Xxxxxx Amendment to be used if Parent deems such filing necessary. For the avoidance of doubt, Parent and the Company shall commence preparation of such notice prior to receipt of or any guidance on a final determination, if any, from the CFIUS staff, and, so long as the Company timely provides all reasonable cooperation each other in connection therewithwith all analyses, including providing all information reasonably necessary for the preparation of a draft joint noticeappearances, Parent shall within twenty (20) Business Days of the date hereof either (i) provide the initial draft joint notice pursuant to the Exon-Xxxxxx Amendment to the CFIUS staffpresentations, if Parent deems such filing necessary memoranda, briefs, arguments, opinions and proposals made or (ii) notify the Company that it does not deem such filing necessary.
(e) The Company shall give prompt notice to Parent and Merger Sub, and copies submitted by or on behalf of any correspondence party hereto in connection with Actions under or relating to or from the FDA, any Foreign Regulatory Entity or Healthcare Governmental Entity containing substantive, factual or legal issues that relate to the compliance status of the Company or any of its subsidiaries and/or any of their respective products or otherwise provide the other party with reasonable information or respond to reasonable requests for information with respect to such matters. The Company shall give due consideration, following reasonable prior notice to Parent, to any advice from Parent as to how to respond to any material correspondence from the FDA, any Foreign Regulatory Entity or Healthcare Governmental Entity or with respect to any other material submissions to any of the foregoing. If the Company is invited to participate in any meeting with the FDA Laws with respect to the letter received on May 5, 2011, any warning letter, untitled letter, notice of violation letter, FDA establishment inspection close-out, recall, or any enforcement action initiated by FDA, or invited to participate in any meeting with any Foreign Regulatory Entity pertaining to similar matters, then the Company shall give Parent reasonable prior notice of such meeting and invite one outside representative of Parent transactions contemplated hereby; and
(designated by Parent and who is qualified as a subject matter expert reasonably acceptable to the Companyv) to attend such meeting unless prohibited by the FDA or such Foreign Regulatory Entity. The Company will (i) cooperate with, and provide reasonable access to, Parent’s representative for purposes of reviewing and assessing the Company’s FDA and Healthcare Law compliance programs and procedures, (ii) give due consideration without prejudice to any resulting recommendations provided rights of the parties hereunder, consulting and cooperating in all respects with each other in defending all Actions by Parent’s representative and (iii) use its reasonable best efforts to implement or before any such recommendations that it considers, in its own good faith judgment, to be advisable.
(f) Notwithstanding Governmental Entity challenging this Agreement or the foregoing provisions consummation of this Section 6.8, commercially and/or competitively sensitive information and materials of a party will be provided to the Merger or the other party on an outside counsel-only basis while, to the extent feasible, making a version in which the commercial and/or competitively sensitive information has been redacted available to the other partytransactions contemplated hereby.
Appears in 1 contract
Further Action; Efforts. (a) Upon the terms and subject to the conditions of this AgreementAgreement (including Section 5.7(h)), each of the parties shall use its reasonable best efforts to (i) take, or cause to be taken, all actions and to do, or cause to be done, and cooperate with each other in order to do, all things necessary, proper or advisable under applicable Law (including under any Antitrust Law or Foreign Merger Control Law, including in connection with ) (other than under any filing relating to CFIUS, and including obtaining all approvals, consents, waivers of any third party necessary, proper or advisableapplicable Gaming Law) to consummate the transactions contemplated by this Agreement as soon as practicableat the earliest practicable date, (ii) do all things necessary, proper or advisable under applicable laws and regulations to consummate the Merger and the other transactions contemplated by this Agreement as soon as practicable, includingincluding using reasonable best efforts to: (Ai) causing cause the preparation and filing of all forms, registrations and notices required to be filed to consummate the Merger and the taking of take such actions as are reasonably necessary to obtain any requisite consent or approval, (other than Gaming Approvals) or expiration of any applicable waiting period under, under the HSR Act, any applicable Act and other Antitrust Law or any applicable Foreign Merger Control Law or with respect to CFIUS and Laws; (Bii) using reasonable best efforts to defend all lawsuits and other proceedings Actions by or before any Governmental Entity (other than any Gaming Authority) challenging this Agreement or the consummation of the Merger Merger; and (iii) resolve any objection asserted with respect to the transactions contemplated under this Agreement under any Antitrust Law or Foreign Merger Control Law raised by any Governmental Entity (other than any or Gaming Authority) and to prevent the entry of any court order, and to have vacated, lifted, reversed or overturned any injunction, decree, ruling, order or other action of any Governmental Entity (other than any or Gaming Authority) that would prevent, prohibit, restrict or delay the consummation of the transactions contemplated by this Agreement. Notwithstanding anything to the contrary set forth in this AgreementAgreement (provided, in no event shall Parent or Merger Sub be obligated pursuant to this Agreement tohowever, and that the Company shall not without be required to incur any liabilities or pay more than a nominal sum to obtain any such consents, registrations, approvals, permits and authorizations). Upon the written consent terms and subject to the conditions of Parentthis Agreement (including Section 5.7(g)), divest each of Parent and Merger Sub shall use its best efforts to take, or hold separate any assets cause to be taken, all actions and to do, or cause to take be done, and cooperate with each other in order to do, all things necessary, proper or commit advisable under applicable Gaming Laws to take any action which would be reasonably likely to consummate the transactions contemplated by this Agreement at the earliest practicable date, including using best efforts to: (i) materially adversely impact cause the benefits expected preparation and filing of all forms, registrations and notices required to be derived filed to consummate the Merger and take such actions as are reasonably necessary to obtain any requisite Gaming Approvals; (ii) defend all Actions by Parentor before any Gaming Authority challenging this Agreement or the consummation of the Merger; and (iii) resolve any objection asserted with respect to the transactions contemplated under this Agreement under any Gaming Authority and to prevent the entry of any court order, as a result and to have vacated, lifted, reversed or overturned any injunction, decree, ruling, order or other action of any Gaming Authority that would prevent, prohibit, restrict or delay the consummation of the transactions contemplated by this Agreement (provided, however, that the Company shall not be required to incur any liabilities or (ii) impose material limitations on Parent’s ownership or operation (or that of pay more than a nominal sum to obtain any of Parent’s subsidiaries or affiliates) of all or a material portion of the Company’s business or assetssuch consents, registrations, approvals, permits and authorizations).
(b) In furtherance and not in limitation of the provisions of Section 6.8(a5.7(a), each of the parties, as applicable, agrees to (i) prepare and file as promptly as reasonably practicable, (A) and in any event by no later than fifteen ten (1510) Business Days from the date of this Agreement (i) Agreement, an appropriate filing of a Notification and Report Form pursuant to the HSR Act, Act and (ii) an appropriate prepare and file as promptly as practicable any notification or other form pursuant necessary to obtain any consents, clearances or approvals required under or in connection with any other applicable Antitrust Law. The Company and Parent will each request early termination of the waiting period with respect to the requirements of the Canadian Competition Act, as amended and (iii) an appropriate notification form pursuant to the requirements of Brazil Antitrust Law of June 11, 1994, as amended, and any regulations and resolutions promulgated in connection therewith, and (iv) any draft filings, notifications or reports required Merger under the EUMR HSR Act. Nothing in this Agreement will require the Company or its Subsidiaries to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon Closing. The Company and the Parent shall each pay fifty percent (B) to the extent required, any initial filings, notifications or reports required under the jurisdictions set forth on Section 7.1(b50%) of the Company Disclosure Schedule. Parent shall pay all any filing fees and other charges for the filings required under the HSR Act by the Company and Parent.
(c) In furtherance and not in limitation of the provisions of Section 5.7(a), Parent and Merger Sub agree to, and agree to cause their Affiliates and their respective directors, officers, partners, managers, members, principals and stockholders to, prepare and submit to the Gaming Authorities as promptly as practicable, and in any event no later than 30 calendar days from the date of this Agreement, all applications and supporting documents necessary to obtain all required Gaming Approvals. Any fees, costs and expenses incurred in connection with obtaining Gaming Approvals will be borne by Parent.
(d) If a party receives a request for information or documentary material from any Governmental Entity with respect to this Agreement or any of the transactions contemplated hereby, including a Second Request for Information under the HSR Act, or requests for supporting, supplemental or additional documentation from any Gaming Authorities, then such party shall in good faith make, or cause to be made, as soon as reasonably practicable and after consultation with the other party, a response that is, at a minimum, in substantial compliance with such request.
(e) The parties shall keep each other apprised of the status of significant matters relating to the completion of the transactions contemplated by this Agreement and work cooperatively in connection with obtaining the approvals of or clearances from each applicable Governmental Entity, including:
(i) cooperating with each other in connection with filings required to be made by any party under any Antitrust Law or Foreign Merger Control applicable Gaming Law and coordinating liaising with each other in relation to each step of the procedure before the relevant Governmental Entities and as to the contents of all material communications with such Governmental Entities. In particular, to the extent permitted by law Law or a Governmental Entity, no party will make any material notification to any Governmental Entity in relation to the transactions contemplated hereunder without first providing the other party with a copy of such notification in draft form and giving such other party a reasonable opportunity to discuss its content before it is filed with the relevant Governmental Entities, and such first party shall consider and take account of all reasonable comments timely made by the other party in this respect;
(ii) furnishing, to the extent permitted by law, furnishing to the other party all necessary information within its possession that the is required for any application or other party may reasonably request in connection with filings required filing to be made by such the other party under Antitrust Laws and Foreign Merger Control Laws; andpursuant to the applicable Law in connection with the transactions contemplated by this Agreement;
(iii) promptly notifying each other of any material communications from or with any Governmental Entity with respect to the transactions contemplated by this Agreement and ensuring to the extent permitted by law Law or Governmental Entity that each of the parties is given the opportunity entitled to attend any meetings with or other appearances before any Governmental Entity with respect to the transactions contemplated by this Agreement;
(iv) consulting and cooperating with one another in connection with all 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 Antitrust Laws or applicable Gaming Laws; and
(v) without prejudice to any rights of the parties hereunder, consulting and cooperating in all respects with the other in defending Actions by or before any Governmental Entity challenging this Agreement or the consummation of the transactions contemplated by this Agreement.
(di) Parent willSubject to Section 5.7(h), as promptly as practicable after the date hereofparties shall use their respective reasonable best efforts to take, commence discussions with the CFIUS staff regarding or cause to be taken, all other action and to do, or cause to be done, all things necessary, proper or advisable under all Antitrust Laws to consummate the transactions contemplated by this Agreement, including:
(A) using its reasonable best efforts to promptly obtain the expiration of all waiting periods (including, if permitted by applicable Law, requesting early termination of such waiting periods); and
(B) using its reasonable best efforts to promptly obtain all other approvals and Parent any other consents of any Governmental Entity (other than any Gaming Authority) required to be obtained in order for the parties to consummate the transactions contemplated by this Agreement.
(ii) Subject to Section 5.7(g), the parties shall use their respective best efforts to take, or cause to be taken, all other action and to do, or cause to be done, all things necessary, proper or advisable under applicable Gaming Laws, to consummate the Company will as transactions contemplated by this Agreement, including:
(A) using its best efforts to promptly as practicable after obtain the date hereof cooperate expiration of all waiting or notice periods (including, if permitted by applicable Law, requesting early termination of such waiting or notice periods) under or with respect to prepare Gaming Laws; and
(B) using its best efforts to promptly obtain all other approvals and any other consents of any Gaming Authority required to be obtained in order for the notice pursuant parties to consummate the transactions contemplated by this Agreement.
(g) Notwithstanding anything to the Exon-Xxxxxx Amendment to be used if contrary set forth in this Agreement (including as otherwise set forth in this Section 5.7), in connection with any Gaming Approvals or Gaming Laws, in no event shall Parent deems such filing necessary. For the avoidance of doubt, Parent and the Company shall commence preparation of such notice prior to receipt of or any guidance on a final determinationof its Affiliates (including the Surviving Corporation) be required to proffer to, if anyor agree to, from the CFIUS staff, and, so long as the Company timely provides all reasonable cooperation in connection therewith, including providing all information reasonably necessary for the preparation of a draft joint notice, Parent shall within twenty (20) Business Days of the date hereof either agree to (i) provide any material change or restriction on the initial draft joint notice pursuant to proposed capital structure or balance sheet of Parent, Merger Sub, the Exon-Xxxxxx Amendment to the CFIUS staffSurviving Corporation or any of their respective Affiliates, if Parent deems such filing necessary or (ii) notify the Company that it does not deem such filing necessary.
any material change (eincluding without limitation, through a franchising or licensing arrangement) The Company shall give prompt notice or restriction on (other than pursuant to Parent and Merger Subany existing legal, and copies regulatory or other similar restrictions), or other material impairment of (x) Parent’s or any correspondence of its Affiliates’ ability to own or from the FDA, operate any Foreign Regulatory Entity or Healthcare Governmental Entity containing substantive, factual or legal issues that relate to the compliance status of material assets (including any real property owned by the Company or any of its subsidiaries and/or Subsidiaries), licenses, operations, rights, product lines, businesses or interest therein of Parent, Merger Sub, the Surviving Corporation or any of their respective products Affiliates or (y) Parent’s or any of its Affiliates’ ability to vote, transfer, receive dividends or otherwise provide the other party with reasonable information or respond to reasonable requests for information with respect to such matters. The Company shall give due consideration, following reasonable prior notice to Parent, to any advice from Parent as to how to respond to any material correspondence from the FDA, any Foreign Regulatory Entity or Healthcare Governmental Entity or with respect to any other material submissions to any of the foregoing. If the Company is invited to participate in any meeting with the FDA exercise full ownership rights with respect to the letter received on May 5, 2011, stock of the Surviving Corporation or any warning letter, untitled letter, notice of violation letter, FDA establishment inspection close-out, recallits Affiliates, or to agree to place any enforcement action initiated by FDAstock or other assets or an operating property in trust upon the Closing.
(h) Notwithstanding anything to the contrary set forth in this Agreement (including as otherwise set forth in this Section 5.7), or invited to participate other than in any meeting connection with any Foreign Regulatory Entity pertaining Gaming Approval or Gaming Laws, in no event shall Parent or any of its Affiliates (including the Surviving Corporation) be required to similar matters, then the Company shall give Parent reasonable prior notice of such meeting and invite one outside representative of Parent (designated by Parent and who is qualified as a subject matter expert reasonably acceptable to the Company) to attend such meeting unless prohibited by the FDA or such Foreign Regulatory Entity. The Company will (i) cooperate with, and provide reasonable access proffer to, or agree to, sell, divest, lease, license, transfer, dispose of or otherwise encumber or hold separate and agree to sell, divest, lease, license, transfer, dispose of or otherwise encumber before or after the Effective Time, any material assets, licenses, operations, rights, product lines, businesses or interest therein of Parent, Merger Sub, the Company, the Surviving Corporation or any of their respective Affiliates (or to consent to any sale, divestiture, lease, license, transfer, disposition or other encumbrance by the Parent, Merger Sub, the Company, the Surviving Corporation or any of their respective Affiliates of any of their respective material assets, licenses, operations, rights, product lines, businesses or interest therein or to any agreement by the Parent, Merger Sub, the Company, the Surviving Corporation or any of their respective Affiliates to take any of the foregoing actions) or to agree to (A) any material change or restriction on the proposed capital structure or balance sheet of Parent, Merger Sub, the Surviving Corporation or any of their respective Affiliates, or (B) any material change (including without limitation, through a franchising or licensing arrangement or a change in the proposed capital structure or balance sheet) or restriction on, or other material impairment of Parent’s representative for purposes or any of reviewing and assessing its Affiliates’ ability to own or operate any such assets, licenses, operations, rights, product lines, businesses or interests therein or Parent’s or any of its Affiliates’ ability to vote, transfer, receive dividends or otherwise exercise full ownership rights with respect to the Company’s FDA and Healthcare Law compliance programs and proceduresstock of the Surviving Corporation or any of its Affiliates, or to agree to place any stock or other assets or an operating property in trust upon the Closing, or (ii) give due make any material payments, other than filing fees required by Law, or provide any other material consideration in connection with any waiver or consent reasonably necessary, proper or advisable to consummate and make effective the Merger and the other transactions contemplated hereby (or to consent to any resulting recommendations provided material payment, other than filing fees required by Law, or provide any other material consideration by Parent’s representative and (iii) use its reasonable best efforts to implement , Merger Sub, the Company, the Surviving Corporation or any of their respective Affiliates in connection with such recommendations that it considers, in its own good faith judgment, to be advisablewaivers or consents).
(fi) Notwithstanding the foregoing provisions of this Section 6.8foregoing, commercially and/or or competitively sensitive information and materials of a party will be provided to the other party on an outside counsel-only basis while, to the extent feasible, making a version in which the commercial and/or or competitively sensitive information has been redacted available to the other party.
(j) For purposes of this Agreement, “Antitrust Law” means the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended and all other Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition through merger or acquisition.
Appears in 1 contract
Sources: Merger Agreement (Affinity Gaming)