Antitrust Notifications and Other Regulatory Approvals. (a) Each of the Company, Parent and Merger Sub shall, and Parent shall cause its Affiliates to, cooperate with each other and shall use, and Parent shall cause its Affiliates to use, their respective reasonable best efforts to prepare and file (i) required Notification and Report Forms under the HSR Act and the rules and regulations promulgated thereunder with the FTC and the DOJ, (ii) notifications, filings, registrations, submissions and other materials required or necessary under any applicable Foreign Antitrust Law and (iii) notifications, filings, registrations, submissions or other materials required or necessary to obtain those consents of Governmental Authorities listed on Schedule 5.05(a) (the “Required Parent Consents”), in each case, as soon as practicable following the date of this Agreement and in the case of clause (i), no later than the tenth (10th) Business Day following the date hereof. All filings made in connection with the foregoing sentence shall be made in substantial compliance with the requirements of applicable Antitrust Law, including the HSR Act and applicable Foreign Antitrust Laws. Each of the Company, Parent and Merger Sub shall make, and Parent shall cause its Affiliates to make, such other filings and submissions as are necessary, if any, in other jurisdictions in order to comply with all applicable Antitrust Laws and shall promptly provide any supplemental information or documentation requested by any Governmental Authority relating thereto. All filing fees payable in connection with the notifications, filings, registrations, submissions or other materials contemplated by this Section 5.05 shall be paid entirely by Parent. Subject to the Confidentiality Agreement and applicable Laws, the parties to this Agreement shall, and Parent shall cause its Affiliates to, coordinate and cooperate fully and promptly with each other in exchanging such information and providing such assistance as the other parties may reasonably request in connection with the foregoing and in seeking early termination of any applicable waiting periods, including those under the HSR Act and any applicable Foreign Antitrust Law. (b) To the extent not prohibited by applicable Law, each party to this Agreement shall promptly notify and furnish the other parties copies of (i) any filing such party or any of its Affiliates submits to any Governmental Authority and (ii) any correspondence or communication between it or any of its Affiliates or any of their respective representatives, on the one hand, and any Governmental Authority, on the other hand, in each case relating to the subject matter of this Section 5.05 or the transactions contemplated by this Agreement (and, in the case of any oral communication, a summary of such communication) and shall consult with and permit the other parties to review in advance any proposed filing and any written or oral communication or correspondence by such party to any Governmental Authority relating to the subject matter of this Section 5.05 or the transactions contemplated by this Agreement, and shall consider in good faith the views of such party in connection with any proposed filing and any written or oral communication or correspondence to any Governmental Authority, including the FTC and the DOJ, relating to the subject matter of this Section 5.05 or the transactions contemplated by this Agreement. No party to this Agreement shall agree to, or permit any of its Affiliates or any of its or their respective representatives to, participate in any meeting or discussion with any Governmental Authority in respect of any filings, investigation, inquiry or any other matter contemplated by this Section 5.05 or any transaction contemplated by this Agreement unless it consults with the other parties in advance and, to the extent permitted by such Governmental Authority, gives the other parties the opportunity to attend and participate in such meeting or discussion. (c) Notwithstanding anything in this Agreement to the contrary, Parent and the Company shall, and Parent shall cause its Affiliates to, take any and all actions necessary to obtain any consents, clearances or approvals required under or in connection with the HSR Act, the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the Federal Trade Commission Act, as amended, and any other federal or state law, regulation or decree designed or intended to prohibit, restrict or regulate actions or transactions having the purpose or effect of monopolization, restraint of trade or harm to competition, including any Foreign Antitrust Law (collectively “Antitrust Laws”), and to enable all waiting periods under any Antitrust Law to expire, and to avoid or eliminate each and every impediment under any Antitrust Law asserted by any Governmental Authority, in each case, to cause the Merger and the other transactions contemplated hereby to occur as promptly as practicable following the date of this Agreement and, in any event, prior to the Termination Date, including (i) promptly complying with or modifying any requests or inquiries for additional information or documentation (including any second request) by any Governmental Authority, (ii) offering, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, license or other disposition of any and all of the capital stock, assets, rights, products or businesses of Parent and its Affiliates and the Company and its Subsidiaries and any other restrictions on the activities of Parent and its Affiliates and the Company and its Subsidiaries and (iii) contesting, defending and appealing any threatened or pending Litigation or preliminary or permanent injunction or other Order or Law that would adversely affect the ability of any party hereto to consummate, or otherwise delay the consummation of, the transactions contemplated hereby and taking any and all other actions to prevent the entry, enactment or promulgation thereof; provided that Parent and its Subsidiaries shall not be required to take any action that would be materially adverse to Parent and its Subsidiaries and the Company and its Subsidiaries taken as a whole. Notwithstanding the foregoing or anything in this Agreement to the contrary, in no event shall the Company or any of its Affiliates be obligated to commit to take any action pursuant to this Section 5.05, the consummation of which is not conditioned on the consummation of the Closing, or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals required in order to consummate the transactions contemplated hereby. (d) In the event Parent, the Company or any of the Parent’s Affiliates receives a second request under the HSR Act or any similar inquiry or request under applicable Foreign Antitrust Laws in connection with the transactions contemplated by this Agreement, such party shall promptly comply (and in the case of Parent cause its Affiliates to promptly comply) with such request (i) as provided by Section 7A(e) of the HSR Act or (ii) as otherwise provided under applicable Foreign Antitrust Laws, it being acknowledged and agreed by the parties hereto that time is of the essence. For purposes of this provision, such Persons shall be deemed to have complied with any such request by providing a response that such Person in good faith believes to be in substantial compliance and by certifying in writing to the other parties its prompt, substantial compliance. In the event that any such Person receives a subpoena or civil investigative demand requesting materials and information similar to that usually demanded in a second request under the HSR Act or any similar inquiry or request under applicable Foreign Antitrust Laws, such Person shall promptly comply (and in the case of Parent cause its Affiliates to promptly comply) with such subpoena or civil investigative demand, it being acknowledged by the parties hereto that time is of the essence. In the event the Governmental Authority disputes the adequacy of compliance by any such Person with respect to a second request under the HSR Act or any similar inquiry or request under applicable Foreign Antitrust Laws, subpoena or civil investigative demand, such party shall endeavor (and in the case of Parent cause its Affiliates to endeavor) to satisfy the Governmental Authority so as to minimize any delay in the conduct or resolution of the investigation. (e) From the date of this Agreement through the date (i) of termination of the required waiting periods under the HSR Act and all applicable Foreign Antitrust Laws and (ii) the Required Parent Consents are obtained, the Parent and its Affiliates shall not take any action that could reasonably be expected to hinder or delay, as applicable, the obtaining of clearance or the expiration of the required waiting periods under the HSR Act and such applicable Foreign Antitrust Laws, or the obtaining of the Required Parent Consents from the applicable Governmental Authorities. (f) The parties acknowledge and agree that the obligations set forth in this Section 5.05 shall be in addition to, and not in limitation of the generality of, the matters set forth in Section 5.03 and Section 5.04.

Appears in 2 contracts

Samples: Merger Agreement, Merger Agreement (Valeant Pharmaceuticals International, Inc.)

Antitrust Notifications and Other Regulatory Approvals. (a) Each of the ~~Company~~Corporation, Parent and Merger Sub shall, and Parent and the Corporation shall cause its Affiliates to, cooperate with each other and shall use, and Parent shall cause its Affiliates to use, their respective reasonable best efforts to prepare and file (iany filings required under the HSR Act and any other Antitrust/FDI Laws for the jurisdictions set forth on Schedule 7.05(a) ~~required~~ as expeditiously as possible following the date of this Agreement, but with respect to the Notification and Report Forms under the HSR Act and the rules and regulations promulgated thereunder with the FTC and the DOJ, (ii) notifications, filings, registrations, submissions and other materials required or necessary under any applicable Foreign Antitrust Law and (iii) notifications, filings, registrations, submissions or other materials required or necessary to obtain those consents of Governmental Authorities listed on Schedule 5.05(a) (the “Required Parent Consents”), in ~~each case, as soon as practicable following the date of this Agreement and in the case of clause (i),~~ no event later than ~~the tenth~~ ten (~~10th~~10) Business ~~Day following~~ Days after the date hereof. All filings made in connection with the foregoing sentence shall be made in ~~substantial~~ compliance with the requirements of applicable ~~Antitrust~~ Antitrust/FDI Law, including the HSR Act and any other applicable ~~Foreign Antitrust~~ Law, and shall request early termination of the applicable waiting period or other expedited treatment to the extent available under applicable Antitrust/FDI Laws. Each of the ~~Company~~Corporation, Parent and Merger Sub shall make, as expeditiously as possible following the date hereof, and Parent and the Corporation shall cause ~~its~~ their respective Affiliates (as applicable) to make, such other filings and submissions as are necessary, if any, in other jurisdictions in order to comply with all applicable ~~Antitrust~~ Antitrust/FDI Laws for the jurisdictions set forth on Schedule 7.05(a) and all other applicable Laws and shall promptly provide any supplemental information or documentation requested by any Governmental Authority relating thereto. All filing fees payable in connection with the notifications, filings, registrations, submissions or other materials contemplated by this Section ~~5.05~~ 7.05 shall be paid entirely by Parent. Subject to the Confidentiality Agreement and applicable Laws, each of the ~~parties to this Agreement~~ Corporation, Parent and the Merger Sub shall, and Parent shall cause its Affiliates (as applicable) to, coordinate and cooperate fully and promptly with each other in exchanging such information and providing such assistance as the other parties may reasonably request in connection with the foregoing and in seeking early termination of any applicable waiting periods, including those under the HSR ~~Act~~ Act. Without limiting the other provisions of this Section 7.05, Parent shall be entitled to take the lead, subject to advance consultation and cooperation in good faith with the Corporation, in the development and implementation of the strategy for obtaining all required consents, authorizations, Orders or approvals of, or any ~~applicable Foreign Antitrust Law~~exemptions by, any Governmental Authority undertaken in accordance with the provisions of this Section 7.05. (b) To the extent not prohibited by applicable Law, each ~~party to this Agreement~~ of the Corporation, Parent and the Merger Sub shall promptly notify and furnish the other parties copies of (i) any filing such party or any of its Affiliates submits to any Governmental Authority and (ii) any material correspondence or communication between it or any of its Affiliates or any of their respective representatives, on the one hand, and any Governmental Authority, on the other hand, in each case relating to the subject matter of this Section ~~5.05~~ 7.05 or the transactions contemplated by this Agreement (and, in the case of any material oral communication, a summary of such communication) and shall consult with and permit the other parties to review in advance any proposed filing and any material written or oral communication or correspondence by such party to any Governmental Authority relating to the subject matter of this Section ~~5.05~~ 7.05 or the transactions contemplated by this Agreement, and shall ~~consider~~ take into account, in good ~~faith~~ faith, the views of such party in connection with any proposed filing and any material written or oral communication or correspondence to any Governmental Authority, including the FTC ~~and~~ or the ~~DOJ,~~ DOJ relating to the subject matter of this Section ~~5.05~~ 7.05 or the transactions contemplated by this Agreement. No party to this Agreement shall agree to, or permit any of its Affiliates or any of its or their respective representatives to, participate in any meeting or discussion with any Governmental Authority in respect of any filings, investigation, inquiry or any other matter contemplated by this Section ~~5.05~~ 7.05 or any transaction contemplated by this Agreement unless it consults with the other parties in advance and, to the extent permitted by such Governmental Authority, gives the other parties the opportunity to attend and participate in such meeting or discussion. Any such provisions of information, rights to participate or consultations between the parties may be made on a counsel-only or outside counsel-only basis to the extent required under applicable Law or as appropriate to protect sensitive business information or maintain attorney-client or other privilege. For the avoidance of doubt, this Section 7.05 shall not apply to any filings, communications or correspondence regarding Taxes. (c) Notwithstanding anything in this Agreement to the ~~contrary~~contrary (but subject to Section 7.05(d)), Parent ~~and the Company~~ shall, and ~~Parent~~ shall cause its Affiliates to, ~~take any and all actions necessary~~ use their respective reasonable best efforts to obtain ~~any consents, clearances or approvals required~~ all Consents under or in connection with ~~the HSR Act, the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the Federal Trade Commission Act, as amended, and~~ any other federal or state law, regulation or decree designed or intended to prohibit, restrict or regulate actions or transactions having the purpose or effect of monopolization, restraint of trade or harm to competition, including any Foreign Antitrust Law (collectively “Antitrust Antitrust/FDI Laws”), and to enable all waiting periods under any ~~Antitrust~~ Antitrust/FDI Law to expire, and to avoid or eliminate each and every impediment under ~~any Antitrust Law asserted by any Governmental Authority~~all Antitrust/FDI Laws, in each case, to cause the Merger and the other transactions contemplated hereby to occur as ~~promptly~~ expeditiously as ~~practicable~~ reasonably possible following the date of this Agreement and, in any event, prior to the Termination Date, ~~including~~ including, in each case (i) promptly ~~complying~~ comply with or modifying any requests or inquiries for additional information or documentation (including any second request) by any Governmental Authority, (ii) offering, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, (A) the sale, divestiture, license or other disposition of any and all of the capital stock, assets, rights, products or businesses of ~~Parent~~ the Corporation and its ~~Affiliates and~~ Subsidiaries, (B) the ~~Company and~~ termination or restructuring of existing relationships, ventures, contractual or governance rights or obligations or other arrangements of the Corporation or its Subsidiaries ~~and~~ or (C) any other restrictions on the activities of ~~Parent~~ the Corporation or its Subsidiaries; provided that in no event shall the Corporation (and the Corporation shall not permit any of its Affiliates ~~and~~ to) propose, negotiate, effect or agree to any such actions contemplated by this clause (ii) without the ~~Company and its Subsidiaries~~ prior written consent of Parent, and (iii) contesting, defending and appealing any threatened or pending Litigation or preliminary or permanent injunction or other Order or Law that would adversely affect the ability of any party hereto to consummate, or otherwise delay the consummation of, the transactions contemplated hereby and taking any and all other actions to prevent the entry, enactment or promulgation thereof~~; provided that~~ . (d) Notwithstanding anything in this Section 7.05 to the contrary, (i) Parent and its ~~Subsidiaries~~ Affiliates shall not be required to ~~take~~ offer, negotiate, commit to or effect, by consent decree, hold separate order or otherwise, (A) the sale, divestiture, license or other disposition of any ~~action that would be materially adverse to~~ and all of the capital stock, assets, rights, products or businesses of Parent and its Affiliates (other than the Corporation and its Subsidiaries), (B) the termination or restructuring of existing relationships, ventures, contractual or governance rights or obligations, or other arrangements of Parent or any of its Affiliates (other than the Corporation and its Subsidiaries) or (C) any other restrictions on the activities of Parent and its Affiliates (other than the Corporation and its Subsidiaries), and (ii) Parent and its Affiliates shall not be required to offer, negotiate, commit to or effect, by consent decree, hold separate order or otherwise, (A) the sale, divestiture, license or other disposition of any and all of the capital stock, assets, rights, products or businesses of the Corporation and its Subsidiaries, (B) the termination or restructuring of existing relationships, ventures, contractual or governance rights or obligations, or other arrangements of the Corporation or its Subsidiaries ~~and~~ or (C) any other restrictions on the ~~Company~~ activities of the Corporation or its Subsidiaries, in each case contemplated by this clause (ii), to the extent any such action would, individually or in the aggregate, have a Material Adverse Effect (without regard to clause (i) of the definition of that term) on the Corporation and its Subsidiaries taken as a whole. Notwithstanding the foregoing or anything in this Agreement to the contrary, in no event shall ~~the Company~~ (x) any party or any of its respective Affiliates be obligated to commit to take any action ~~pursuant to this~~ otherwise required by Section ~~5.05~~7.05(d), the consummation of which is not conditioned on the consummation of the Closing, and (y) the Corporation or any of their Affiliates be obligated to pay any fee (other than any legal, consultant or advisor fees associated with obtaining any Consent or the expiration of the required waiting periods under any Antitrust/FDI Law) or grant any concession in connection with obtaining any consents, authorizations or approvals required in order to consummate the transactions contemplated hereby. (d) In the event Parent, the Company or any of the Parent’s Affiliates receives a second request under the HSR Act or any similar inquiry or request under applicable Foreign Antitrust Laws in connection with the transactions contemplated by this Agreement, such party shall promptly comply (and in the case of Parent cause its Affiliates to promptly comply) with such request (i) as provided by Section 7A(e) of the HSR Act or (ii) as otherwise provided under applicable Foreign Antitrust Laws, it being acknowledged and agreed by the parties hereto that time is of the essence. For purposes of this provision, such Persons shall be deemed to have complied with any such request by providing a response that such Person in good faith believes to be in substantial compliance and by certifying in writing hereby prior to the other parties its prompt, substantial compliance. In the event that any such Person receives a subpoena or civil investigative demand requesting materials and information similar to that usually demanded in a second request under the HSR Act or any similar inquiry or request under applicable Foreign Antitrust Laws, such Person shall promptly comply (and in the case of Parent cause its Affiliates to promptly comply) with such subpoena or civil investigative demand, it being acknowledged by the parties hereto that time is of the essence. In the event the Governmental Authority disputes the adequacy of compliance by any such Person with respect to a second request under the HSR Act or any similar inquiry or request under applicable Foreign Antitrust Laws, subpoena or civil investigative demand, such party shall endeavor (and in the case of Parent cause its Affiliates to endeavor) to satisfy the Governmental Authority so as to minimize any delay in the conduct or resolution of the investigationClosing. (e) ~~From~~ During the ~~date of this Agreement through the date (i) of termination~~ Pre-Closing Period, Parent shall not, and shall cause its Affiliates not to, agree to acquire, by merging with or into or consolidating with, or by purchasing a substantial portion of the ~~required waiting periods under~~ assets of or any equity in, or by any other manner (including through any joint venture or other contractual arrangement), any assets or Person, if the ~~HSR Act~~ execution and ~~all applicable Foreign Antitrust Laws and (ii)~~ delivery of a definitive agreement relating to, or the ~~Required Parent Consents are obtained~~consummation of, ~~the Parent and its Affiliates shall not take any action that could~~ such transaction would reasonably be expected to ~~hinder~~ materially hinder, materially delay or ~~delay, as applicable,~~ prevent the obtaining of clearance or any Consent or the expiration of the required waiting periods under any Antitrust/FDI Law or other applicable Law or otherwise materially hinder, materially delay or prevent the ~~HSR Act and such applicable Foreign Antitrust Laws, or the obtaining~~ consummation of any of the ~~Required Parent Consents from the applicable Governmental Authorities~~transactions contemplated hereby. (f) The parties acknowledge and agree that the obligations set forth in this Section 5.05 shall be in addition to, and not in limitation of the generality of, the matters set forth in Section 5.03 and Section 5.04.

Appears in 1 contract

Samples: Merger Agreement (Heico Corp)

Antitrust Notifications and Other Regulatory Approvals. (a) Each ~~of the Company, Parent and Merger Sub shall, and Parent~~ party shall ~~cause its Affiliates to,~~ cooperate with each other and ~~shall use, and Parent shall cause~~ use its ~~Affiliates to use, their respective~~ reasonable best efforts to prepare and file (i) required Notification and Report Forms under the HSR Act with the United States Federal Trade Commission and the ~~rules~~ United States Department of Justice and ~~regulations promulgated thereunder with the FTC and the DOJ,~~ (ii) all other notifications, filings, registrations, submissions and other materials required or necessary under ~~any~~ applicable ~~Foreign~~ Antitrust Law and (iii) notifications, filings, registrations, submissions or other materials required or necessary to obtain those consents of Governmental Authorities listed on Schedule 5.05(a) (the “Required Parent Consents”)Laws, in each case, as soon as practicable following the date of this ~~Agreement and~~ Agreement, but in the case of clause (i), no later than ~~the tenth (10th)~~ seven Business ~~Day following~~ Days after the date hereof. All filings made in connection with ~~the foregoing sentence~~ this Section 5.05(a) shall be made in substantial compliance with the requirements of applicable Antitrust ~~Law, including the HSR Act~~ Laws and any other applicable ~~Foreign Antitrust~~ Laws. Each ~~of the Company, Parent and Merger Sub~~ party shall ~~make, and Parent shall cause its Affiliates to make,~~ make such other filings and submissions as are necessary, ~~if any,~~ proper or advisable in other jurisdictions ~~in order~~ to comply with all applicable Antitrust Laws and all other applicable Laws, and shall promptly provide ~~any~~ all supplemental information or and documentation requested by any Governmental Authority relating thereto. All filing fees payable in connection with the notifications, filings, registrations, submissions or and other materials contemplated by this Section 5.05 shall be paid ~~entirely~~ by Parent. Subject to the Confidentiality Agreement and applicable Laws, the parties ~~to this Agreement shall, and Parent~~ shall ~~cause its Affiliates to,~~ coordinate and cooperate fully and promptly with each other in exchanging such information and providing such assistance as the other parties may reasonably request in connection with the foregoing and in seeking early termination of any applicable waiting periods, including those under the HSR Act and any other applicable ~~Foreign~~ Antitrust Law. (b) To the extent not prohibited by applicable ~~Law~~Law or a Governmental Authority and subject to all applicable privileges (including the attorney-client privilege), each party ~~to this Agreement~~ shall (A) promptly notify and furnish the other parties copies of each (i) ~~any~~ filing (or portions thereof) such party ~~or any of its Affiliates~~ submits to any Governmental Authority (provided that any business confidential information may be provided on an outside counsel basis only) and (ii) ~~any~~ correspondence or communication between it or any of its ~~Affiliates or any of their respective representatives~~Representatives, on the one hand, and any Governmental Authority, on the other hand, in each case relating to the subject matter of this Section 5.05 or the ~~transactions contemplated by this Agreement~~ Transactions (and, in the case of any oral communication, a summary of such communication), (B) ~~and shall~~ consult with and permit the other parties to review in advance any proposed filing and any written or oral communication or correspondence by such party to any Governmental Authority relating to the subject matter of this Section 5.05 or the ~~transactions contemplated by this Agreement~~Transactions, and ~~shall~~ (C) consider in good faith the views of such party in connection with any such proposed filing and any such written or oral communication or correspondence to any Governmental ~~Authority, including the FTC and the DOJ,~~ Authority relating to the subject matter of this Section 5.05 or the ~~transactions contemplated by this Agreement~~Transactions. No party ~~to this Agreement~~ shall agree to, or permit any of its Affiliates or any of its or their respective ~~representatives~~ Representatives to, participate in any meeting or substantive discussion with any Governmental Authority in respect of any filings, investigation, inquiry or any other matter contemplated by this Section 5.05 or ~~any transaction contemplated by this Agreement~~ the Transactions unless it consults with the other parties in advance and, to the extent permitted by such Governmental Authority, gives the other parties the opportunity to attend and participate in such meeting or discussion. (c) Notwithstanding anything in this Agreement to the contrary, Parent and the Company ~~shall, and Parent~~ shall ~~cause its Affiliates to,~~ take ~~any and~~ all actions ~~necessary~~ necessary, proper or advisable to (i) obtain ~~any consents, clearances or approvals~~ all Consents required under or in connection with ~~the HSR Act~~any Antitrust Law, the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the Federal Trade Commission Act, as amended, and any other federal or state law, regulation or decree designed or intended to prohibit, restrict or regulate actions or transactions having the purpose or effect of monopolization, restraint of trade or harm to competition, including any Foreign Antitrust Law (~~collectively “Antitrust Laws”), and to~~ ii) enable all waiting periods under any Antitrust Law to ~~expire,~~ expire and to (iii) avoid or eliminate ~~each and every impediment~~ all impediments under ~~any~~ all Antitrust ~~Law asserted by any Governmental Authority~~Laws, in each case, to cause the ~~Merger and the other transactions contemplated hereby~~ Transactions to occur as ~~promptly~~ soon as practicable following the date of this Agreement and, in any event, prior to the ~~Termination Date, including~~ date on which this Agreement is terminated in accordance with Article VIII. Such actions shall include (iA) promptly complying with or modifying ~~any~~ all requests or and inquiries for additional information or documentation (including any second request) by any Governmental Authority, (iiB) offering, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, license or other disposition of ~~any and all of~~ the ~~capital stock~~Equity Securities, assets, rights, products or businesses of ~~Parent~~ Parent, any of its Subsidiaries, the Company, or any of its Subsidiaries, and ~~its Affiliates~~ any other prohibitions against or limitations, conditions or restrictions on, the activities of Parent, the Company or any of their respective Subsidiaries (except to the extent such sale, divestiture, license, disposition or other prohibition, individually or in the aggregate, would reasonably be expected to have a material adverse effect (after giving effect to the proceeds and other consideration received with respect to such actions) on the combined business or financial condition of Parent, the Company and ~~its Subsidiaries and any other restrictions on the activities of Parent and its Affiliates and the Company and its Subsidiaries~~ their respective Subsidiaries, taken as a whole), and (~~iii~~C) initiating, opposing, contesting, ~~defending~~ defending, vacating, terminating, overturning and appealing any threatened or pending Litigation or preliminary or permanent injunction or other Order ~~or Law~~ that would adversely affect the ability of any party ~~hereto~~ to consummate, or otherwise delay the consummation of, the ~~transactions contemplated hereby~~ Transactions, and taking ~~any and all~~ other actions to prevent the entry, enactment or promulgation thereof; provided that Parent and its Subsidiaries shall not be required to take any action that would be materially adverse to Parent and its Subsidiaries and the Company and its Subsidiaries taken as a whole. Notwithstanding ~~the foregoing or~~ anything in this Agreement to the contrary, in no event shall the Company or any of its Affiliates be obligated to commit to take any action pursuant to Section 5.03, Section 5.04 or this Section 5.05, the consummation of which or effectiveness thereof is not conditioned on the consummation of the Closing, or pay any fee or grant any concession in connection with obtaining any ~~consents~~Consents, authorizations or approvals required ~~in order~~ to consummate the ~~transactions contemplated hereby~~Transactions. (d) In the event Parent, the Company or any of the Parent’s Affiliates receives a second request under the HSR Act or any similar inquiry or request under applicable Foreign Antitrust Laws in connection with the transactions contemplated by this Agreement, such party shall promptly comply (and in the case of Parent cause its Affiliates to promptly comply) with such request (i) as provided by Section 7A(e) of the HSR Act or (ii) as otherwise provided under applicable Foreign Antitrust Laws, it being acknowledged and agreed by the parties hereto that time is of the essence. For purposes of this provision, such Persons shall be deemed to have complied with any such request by providing a response that such Person in good faith believes to be in substantial compliance and by certifying in writing to the other parties its prompt, substantial compliance. In the event that any such Person receives a subpoena or civil investigative demand requesting materials and information similar to that usually demanded in a second request under the HSR Act or any similar inquiry or request under applicable Foreign Antitrust Laws, such Person shall promptly comply (and in the case of Parent cause its Affiliates to promptly comply) with such subpoena or civil investigative demand, it being acknowledged by the parties hereto that time is of the essence. In the event the Governmental Authority disputes the adequacy of compliance by any such Person with respect to a second request under the HSR Act or any similar inquiry or request under applicable Foreign Antitrust Laws, subpoena or civil investigative demand, such party shall endeavor (and in the case of Parent cause its Affiliates to endeavor) to satisfy the Governmental Authority so as to minimize any delay in the conduct or resolution of the investigation. (e) From the date of this Agreement through the date (i) of termination of the required waiting periods under the HSR Act and all other applicable ~~Foreign~~ Antitrust Laws and (ii) ~~the Required Parent~~ any Consents of any other applicable Governmental Authority are obtained, ~~the~~ Parent shall not, and ~~its Affiliates~~ shall not permit any of its Subsidiaries to, take any action that could reasonably be expected to hinder or ~~delay, as applicable,~~ delay the obtaining of clearance or the expiration of the required waiting periods under the HSR Act and such other applicable ~~Foreign~~ Antitrust Laws, or the obtaining of ~~the Required Parent~~ such Consents from ~~the~~ any applicable Governmental Authorities. (e) As promptly as reasonably practicable after the date of this Agreement, the Company, and, as may be required by the Defense Security Service (DSS) of the United States Department of Defense or by another Cognizant Security Agency (CSA), as defined in the NISPOM, with authority over any of the facility and personnel security clearances granted by any Governmental Authority to the Company or to any of the Company’s Subsidiaries, Parent, Merger Sub and any “affiliate” thereof (as defined in Form SF328), will prepare and submit to DSS and, to the extent required by applicable Law, to any other Cognizant Security Agency with authority over any of the facility and personnel security clearances granted by any Governmental Authority to the Company or to any of the Company’s Subsidiaries one or more notifications under the NISPOM. (f) The ~~parties acknowledge and agree that the~~ obligations set forth in this Section 5.05 shall be in addition to, and not in limitation of the generality of, the matters set forth in Section 5.03 and Section 5.04.

Appears in 1 contract

Samples: Merger Agreement (Keyw Holding Corp)

Antitrust Notifications and Other Regulatory Approvals. (a) ~~Each of the Company, Parent and Merger Sub shall, and Parent~~ The parties hereto shall ~~cause its Affiliates to,~~ cooperate with each other and shall ~~use, and Parent shall cause its Affiliates to use,~~ use their respective reasonable best efforts to prepare and file (i) required or necessary Notification and Report Forms under the HSR Act and the rules and regulations promulgated thereunder with the FTC and the DOJ, (ii) notifications, filings, ~~registrations, submissions~~ registrations and other materials required or necessary under any applicable Foreign Antitrust Law and (iii) notifications, filings, ~~registrations, submissions~~ registrations or other materials required or necessary to obtain those consents of Governmental Authorities listed on Schedule ~~5.05(a~~6.04(a) (the “Required ~~Parent~~ Purchaser Consents”), in each case, as soon as reasonably practicable following the date of this Agreement (and in the case of clause (i)) above, no later than ~~the tenth (10th)~~ 10 Business ~~Day following~~ Days from and after the date hereof. All filings made in connection with the foregoing sentence shall be made in substantial compliance with the requirements of applicable Antitrust Law, including the HSR Act and applicable Foreign Antitrust Laws. Each of the Company, Parent and Merger Sub shall make), and ~~Parent~~ shall ~~cause its Affiliates~~ respond as promptly as practicable to ~~make,~~ all requests or inquiries received from any Governmental Authority for additional documentation or information. The parties hereto shall also cooperate with each other and shall use their respective reasonable best efforts to make such other filings ~~and submissions~~ as are necessary, if any, in other jurisdictions in order to comply with all applicable ~~Antitrust~~ Laws relating to competition and shall promptly provide any supplemental information or documentation requested by any Governmental Authority relating thereto. All filing fees payable in connection with the notifications, filings, ~~registrations, submissions~~ registrations or other materials contemplated by this ~~Section 5.05~~ paragraph shall be paid entirely by ~~Parent~~Purchaser. (b) Each party to this Agreement shall promptly notify the other parties of any material communication it or any of its Affiliates receives from any Governmental Authority relating to the matters that are the subject of this Agreement and permit the other parties to review in advance, to the extent permitted by Law, any proposed material communication by such party to any Governmental Authority. No party to this Agreement shall agree to participate in any material meeting with any Governmental Authority in respect of any filings, investigation or other inquiry unless it consults with the other parties in advance and, to the extent permitted by such Governmental Authority, gives the other parties the opportunity to attend and participate at such meeting. Subject to the Confidentiality Agreement and applicable Laws, the parties to this Agreement ~~shall, and Parent~~ shall ~~cause its Affiliates to,~~ coordinate and cooperate fully and promptly with each other in exchanging such information and providing such assistance as the other parties may reasonably request in connection with the foregoing and in seeking early termination of any applicable waiting periods, including those under the HSR Act and any applicable Foreign Antitrust Law~~. (b) To~~ . Subject to the ~~extent not prohibited by~~ Confidentiality Agreement and applicable ~~Law~~Laws, ~~each party~~ the parties to this Agreement shall ~~promptly notify and furnish the~~ provide each other ~~parties~~ with copies of ~~(i) any filing such party~~ all material correspondence, filings or ~~any of its Affiliates submits to any Governmental Authority and (ii) any correspondence or communication~~ communications between ~~it or any of its Affiliates~~ them or any of their ~~respective~~ representatives, on the one hand, and any Governmental ~~Authority~~Authority or members of its staff, on the other hand, ~~in each case relating~~ with respect to ~~the subject matter of this Section 5.05 or the transactions contemplated by~~ this Agreement ~~(and, in the case of any oral communication, a summary of such communication)~~ and shall consult with and permit the other parties to review in advance any proposed filing and any written or oral communication or correspondence by such party to any Governmental Authority relating to the subject matter of this Section 5.05 or the transactions contemplated by this Agreement, and shall consider in good faith the views of such party in connection with any proposed filing and any written or oral communication or correspondence to any Governmental Authority, including the FTC and the DOJ, relating to the subject matter of this Section 5.05 or the transactions contemplated by this Agreement. No party to this Agreement shall agree to, or permit any of its Affiliates or any of its or their respective representatives to, participate in any meeting or discussion with any Governmental Authority in respect of any filings, investigation, inquiry or any other matter contemplated by this Section 5.05 or any transaction contemplated by this Agreement unless it consults with the other parties in advance and, to the extent permitted by such Governmental Authority, gives the other parties the opportunity to attend and participate in such meeting or discussion. (c) ~~Notwithstanding anything in this Agreement~~ Purchaser agrees to ~~the contrary, Parent and the Company shall, and Parent shall cause its Affiliates to,~~ take promptly any and all steps and actions necessary to obtain any consents, clearances or approvals required under or in connection with the HSR Act, the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the Federal Trade Commission Act, as amended, and any other federal or state law, regulation or decree designed or intended to prohibit, restrict or regulate actions or transactions having the purpose or effect of monopolization, restraint of trade or harm to competition, including any Foreign Antitrust Law (collectively “Antitrust Laws”), and to enable all waiting periods under any Antitrust Law to expire, and to avoid or eliminate each and every impediment ~~under any Antitrust Law~~ that may be asserted by any Governmental ~~Authority, in each case,~~ Authority or any other Person with respect to ~~cause~~ the ~~Merger and the other~~ transactions contemplated ~~hereby~~ by this Agreement so as to enable the Closing to occur ~~as promptly as practicable following the date of this Agreement and~~expeditiously, but in ~~any event, prior to~~ no case later than the Termination Date, ~~including~~ including, as applicable, (i) ~~promptly complying with or modifying any requests or inquiries for additional~~ providing information ~~or documentation (including any second request) by any Governmental Authority,~~ to such Persons and (ii) ~~offering~~proposing, negotiating, committing to ~~and~~ or effecting, by consent decree, hold separate order or otherwise, (A) the sale, ~~divestiture~~divesture or disposition of, ~~license~~ or holding separate (through the establishment of a trust or otherwise), such of its and its Affiliates’ assets, properties and business and of the assets, properties and businesses of the Surviving Corporation and the Subsidiaries, (B) the termination, modification or extension of existing relationships and contractual rights and obligations of it, its Affiliates, the Surviving Corporation and the Subsidiaries, (C) the establishment or creation of relationships and contractual rights and obligations of it, its Affiliates, the Surviving Corporation and the Subsidiaries, (D) the termination of any relevant venture or other ~~disposition~~ arrangement and (E) any other change or restructuring of ~~any and all of~~ Purchaser, its Affiliates, the ~~capital stock, assets, rights, products or businesses of Parent and its Affiliates~~ Surviving Corporation and the ~~Company and its Subsidiaries and~~ Subsidiaries, in each case, as may be required to be taken in order to avoid the entry of, or to effect the dissolution of, any ~~other restrictions on the activities of Parent and its Affiliates and the Company and its Subsidiaries and (iii) contesting~~decree, ~~defending and appealing any threatened or pending Litigation or preliminary or permanent injunction~~ order, judgment, injunction, temporary restraining order or other Order in any Litigation, which would otherwise have the effect of materially delaying or ~~Law that would adversely affect the ability of any party hereto to consummate, or otherwise delay~~ preventing the consummation ~~of,~~ of the transactions contemplated hereby ~~and taking any and all other actions to prevent the entry, enactment~~ or ~~promulgation thereof; provided that Parent and its Subsidiaries shall not be required to take any action~~ that would be materially adverse to Parent and its Subsidiaries and the Company and its Subsidiaries taken as a whole. Notwithstanding the foregoing or anything in this Agreement to the contrary, in no event shall the Company or any of its Affiliates be obligated to commit to take any action pursuant to this Section 5.05, the consummation of which is not conditioned on make the consummation of the ~~Closing~~Merger in accordance with the terms of this Agreement unlawful; provided, however, Purchaser shall have the right to determine, in its sole discretion, whether to sell, divest or dispose of the assets, properties and businesses of Purchaser or its Affiliates, on the one hand, or ~~pay~~ the assets, properties and businesses of the Surviving Corporation and the Subsidiaries, on the other hand, or any ~~fee or grant any concession in connection with obtaining any consents~~combination thereof, ~~authorizations or approvals required~~ in order to avoid the entry of, or to effect the dissolution of, any decree, order, judgment, injunction, temporary restraining order or other Order in any Litigation; provided, further, that for this purpose, Purchaser shall have no obligation hereunder to consummate any of the transactions ~~contemplated hereby~~described in clause (ii) above prior to the Closing. In addition, Purchaser shall oppose, through and including Litigation on the merits (and any appeals with respect thereto), any claim asserted in court or other forum by any Person in order to avoid entry of, or to have vacated or terminated, any decree, Order or judgment (whether temporary, preliminary or permanent) that would restrain or prevent the Closing by the Termination Date. (d) In the event ~~Parent,~~ Purchaser or the Company ~~or any of the Parent’s Affiliates~~ receives a second request under the HSR Act or any similar inquiry or request under applicable Foreign Antitrust Laws in connection with the transactions contemplated by this Agreement, such party shall promptly comply ~~(and in the case of Parent cause its Affiliates to promptly comply)~~ with such request if necessary (i) as provided by Section 7A(e) of the HSR Act or (ii) as otherwise provided under applicable Foreign Antitrust Laws~~, it being acknowledged and agreed by the parties hereto that time is of the essence~~. For purposes of this provision, ~~such Persons~~ a party shall be deemed to have complied with any such request by providing a response that ~~such Person~~ the party in good faith believes to be in substantial compliance and by certifying in writing to the other parties its prompt, substantial compliance. In the event that ~~any such Person~~ a party receives a subpoena or civil investigative demand requesting materials and information similar to that usually demanded in a second request under the HSR Act or any similar inquiry or request under applicable Foreign Antitrust Laws, such ~~Person~~ party shall promptly comply ~~(and in the case of Parent cause its Affiliates to promptly comply)~~ with such subpoena or civil investigative demand~~, it being acknowledged by the parties hereto that time is of the essence~~. In the event the Governmental Authority disputes the adequacy of compliance by ~~any such Person~~ a party with respect to a second request under the HSR Act or any similar inquiry or request under applicable Foreign Antitrust Laws, subpoena or civil investigative demand, such party shall endeavor ~~(and in the case of Parent cause its Affiliates to endeavor)~~ to satisfy the Governmental Authority so as to minimize any delay in the conduct or resolution of the investigation. (e) From the date of this Agreement through the date (i) of termination of the required waiting periods under the HSR Act and all applicable Foreign Antitrust Laws and (ii) the Required ~~Parent~~ Purchaser Consents are obtained, the ~~Parent~~ Company and its ~~Affiliates~~ Affiliates, and the Purchaser and its Affiliates, shall not take any action that could reasonably be expected to hinder or delay, as applicable, the obtaining of clearance or the expiration of the required waiting periods under the HSR Act and such applicable Foreign Antitrust Laws, or the obtaining of the Required ~~Parent~~ Purchaser Consents from the applicable Governmental Authorities. (f) The parties acknowledge and agree that the obligations set forth in this Section 5.05 shall be in addition to, and not in limitation of the generality of, the matters set forth in Section 5.03 and Section 5.04.

Appears in 1 contract

Samples: Merger Agreement (Forest Laboratories Inc)

Antitrust Notifications and Other Regulatory Approvals. (a) ~~Each of the Company, Parent and Merger Sub shall, and Parent~~ The parties hereto shall ~~cause its Affiliates to,~~ cooperate with each other ~~and~~ and, as necessary, shall ~~use, and Parent shall cause its Affiliates to use, their respective reasonable best efforts to~~ prepare and ~~file (i)~~ file, or cause to be prepared and filed, to the extent not filed prior to the date hereof, required Notification and Report Forms under the HSR Act and the rules and regulations promulgated thereunder with the FTC and the DOJ, (ii) notifications, filings, registrations, submissions and other materials required or necessary under any applicable Foreign Antitrust Law and (iii) notifications, filings, registrations, submissions or other materials required or necessary to obtain those consents of Governmental Authorities listed on Schedule 5.05(a) DOJ (the “~~Required Parent Consents~~HSR Filing”~~), in each case, as soon as practicable following~~ ) within five (5) Business Days after the date of this ~~Agreement~~ Agreement, and ~~in the case of clause (i), no later than the tenth (10th) Business Day following the date hereof~~shall respond as promptly as practicable to all requests or inquiries received from any Governmental Authority for additional documentation or information. ~~All filings made in connection~~ The parties hereto shall also cooperate with ~~the foregoing sentence shall be made in substantial compliance with the requirements of applicable Antitrust Law, including the HSR Act~~ each other and ~~applicable Foreign Antitrust Laws. Each of the Company, Parent and Merger Sub~~ shall make, ~~and Parent shall~~ or cause ~~its Affiliates~~ to ~~make~~be made, such other filings ~~and submissions~~ as are necessary, if any, in other jurisdictions in order to comply with all applicable ~~Antitrust~~ Laws relating to competition and shall promptly provide any supplemental information or documentation requested by any Governmental Authority relating thereto. All filing fees payable in connection with the ~~notifications, filings, registrations, submissions or other materials~~ HSR Filing contemplated by this Section ~~5.05~~ 6.04 shall be paid ~~entirely~~ fifty percent (50%) by ~~Parent~~Purchaser and fifty percent (50%) by the Company. (b) Each party to this Agreement shall promptly notify the other parties of any communication it or any of its Affiliates receives from any Governmental Authority relating to the matters that are the subject of this Agreement and permit the other parties to review and comment upon, a reasonable amount of time in advance, any proposed substantive communication by such party to any Governmental Authority, which will be considered by the other party in good faith, to the extent permitted by Law. No party to this Agreement shall agree to participate in any meeting with any Governmental Authority in respect of any filings, investigation or other inquiry unless it consults with the other parties a reasonable amount of time in advance and, to the extent permitted by such Governmental Authority and Law, gives the other parties the opportunity to attend and participate at such meeting. Subject to the Confidentiality Agreement and applicable Laws, the parties ~~to this Agreement shall, and Parent~~ shall ~~cause its Affiliates to,~~ coordinate and cooperate fully and promptly with each other in exchanging such information and providing such assistance as the other parties may reasonably request in connection with the foregoing and in seeking early termination of any applicable waiting periods, including those under the HSR Act and any applicable Foreign Antitrust Law~~. (b) To~~ . Subject to the ~~extent not prohibited by~~ Confidentiality Agreement and applicable ~~Law~~Laws, the parties shall provide each ~~party to this Agreement shall promptly notify and furnish the~~ other ~~parties~~ with copies of ~~(i) any filing such party~~ all correspondence, filings or ~~any of its Affiliates submits to any Governmental Authority and (ii) any correspondence or communication~~ communications between ~~it or any of its Affiliates~~ them or any of their ~~respective representatives~~Representatives, on the one hand, and any Governmental ~~Authority~~Authority or members of its staff, on the other hand, ~~in each case relating~~ with respect to ~~the subject matter of this Section 5.05 or the transactions contemplated by~~ this Agreement ~~(and, in the case of any oral communication, a summary of such communication)~~ and shall consult with and permit the other parties to review in advance any proposed filing and any written or oral communication or correspondence by such party to any Governmental Authority relating to the subject matter of this Section 5.05 or the transactions contemplated by this Agreement, and shall consider in good faith the views of such party in connection with any proposed filing and any written or oral communication or correspondence to any Governmental Authority, including the FTC and the DOJ, relating to the subject matter of this Section 5.05 or the transactions contemplated by this Agreement. No The parties may, as they deem advisable and necessary, designate any competitively sensitive materials provided to the other party under this Section 6.04 as “outside counsel only.” Such materials and the information contained therein shall be given only to ~~this Agreement shall agree to~~outside counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or ~~permit any~~ directors of ~~its Affiliates or any~~ the recipient without the advance written consent of its or their respective representatives to, participate in any meeting or discussion with any Governmental Authority in respect of any filings, investigation, inquiry or any other matter contemplated by this Section 5.05 or any transaction contemplated by this Agreement unless it consults with the ~~other parties in advance and, to the extent permitted by~~ party providing such ~~Governmental Authority, gives the other parties the opportunity to attend and participate in such meeting or discussion~~materials. (c) ~~Notwithstanding anything~~ Subject to the terms and conditions set forth in this ~~Agreement to the contrary~~Agreement, ~~Parent~~ Purchaser and the Company ~~shall~~shall use reasonable best efforts to take, ~~and Parent shall~~ or cause ~~its Affiliates to~~to be taken, ~~take any and~~ all reasonable actions necessary to obtain any consents, clearances or approvals required under or in connection with the HSR Act, the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the Federal Trade Commission Act, as amended, and any other federal or state law, regulation or decree designed or intended to prohibit, restrict or regulate actions or transactions having the purpose or effect of monopolization, restraint of trade or harm to competition, including any Foreign Antitrust Law (collectively “Antitrust Laws”), and to ~~enable~~ do, or cause to be done, all ~~waiting periods~~ things reasonably necessary, proper or advisable under ~~any Antitrust Law~~ applicable Laws and regulations to ~~expire,~~ consummate and to avoid or eliminate each and every impediment under any Antitrust Law asserted by any Governmental Authority, in each case, to cause the Merger and the other transactions contemplated hereby to occur make effective as promptly as practicable ~~following~~ the ~~date~~ transactions contemplated by this Agreement. Such actions shall include the satisfaction, but not waiver of the closing conditions set forth in Article VII and obtaining consents of all Governmental Authorities necessary to consummate the transactions contemplated by this ~~Agreement and,~~ Agreement. As promptly as reasonably practicable but in any ~~event,~~ event prior to the ~~Termination Date~~Closing, ~~including~~ Purchaser and the Company shall use their respective reasonable best efforts to: (i) ~~promptly complying~~ obtain all necessary and appropriate consents, approvals, waivers, actions, non-actions, or other authorizations from Governmental Authorities, with ~~or modifying~~ respect to any ~~requests or inquiries for additional information or documentation (including~~ antitrust clearance under the HSR Act and any ~~second request) by any Governmental Authority,~~ Foreign Antitrust Laws; and (ii) ~~offering~~satisfy any conditions set forth in or established by any such consents, ~~negotiating~~clearances, ~~committing to and effecting~~approvals, ~~by consent decree~~waivers, ~~hold separate order~~ actions or ~~otherwise, the sale, divestiture, license~~ non-actions or other disposition of any and all of the capital stock, assets, rights, products or businesses of Parent and its Affiliates and the Company and its Subsidiaries and any other restrictions on the activities of Parent and its Affiliates and the Company and its Subsidiaries and (iii) contesting, defending and appealing any threatened or pending Litigation or preliminary or permanent injunction or other Order or Law that would adversely affect the ability of any party hereto to consummate, or otherwise delay the consummation of, the transactions contemplated hereby and taking any and all other actions to prevent the entry, enactment or promulgation thereof; provided that Parent and its Subsidiaries shall not be required to take any action that would be materially adverse to Parent and its Subsidiaries and the Company and its Subsidiaries taken as a wholeauthorizations from Governmental Authorities. Notwithstanding the foregoing or anything in this Agreement to the contrary, in no event shall ~~the Company~~ any party to this Agreement or any of its respective Affiliates be obligated to (i) commit to take any action pursuant to this Section ~~5.05~~6.04, the consummation of which is not conditioned on the consummation of the Closing, or (ii) in connection with the exercise of any reasonable best efforts under this Section 6.04 (A) pay any ~~fee~~ fees, expenses or other amounts to any Governmental Authority or any party to any Contract (excluding, for the avoidance of doubt, filing fees as provided in Section 6.04(a), and ordinary course fees and expenses of their respective attorneys and advisors), (B) commence or participate in any Proceeding, or (C) offer or grant any ~~concession in connection with obtaining~~ accommodation (financial or otherwise) to any ~~consents~~third party, ~~authorizations~~ dispose of any assets, incur any obligations or ~~approvals required in order~~ agree to ~~consummate~~ any of the ~~transactions contemplated hereby~~foregoing. (d) In the event ~~Parent,~~ Purchaser or the Company ~~or any of the Parent’s Affiliates~~ receives a second request under the HSR Act or any similar inquiry or request under applicable Foreign Antitrust Laws in connection with the transactions contemplated by this Agreement, such party shall use reasonable best efforts to comply promptly ~~comply (and in the case of Parent cause its Affiliates to promptly comply)~~ with such request (i) as provided by Section 7A(e) of the HSR Act or (ii) as otherwise provided under applicable Foreign Antitrust Laws, it being acknowledged and agreed by the parties hereto that time is of the essencerequest. For purposes of this provision, ~~such Persons~~ a party shall be deemed to have complied with any such request by providing a response that ~~such Person~~ the party in good faith believes to be in substantial compliance and by certifying in writing to the other parties its prompt, substantial compliance. In the event that ~~any such Person~~ a party receives a subpoena or civil investigative demand requesting materials and information similar to that usually demanded in a second request under the HSR Act or any similar inquiry or request under applicable Foreign Antitrust Laws, such ~~Person~~ party shall use reasonable best efforts to comply promptly ~~comply (and in the case of Parent cause its Affiliates to promptly comply)~~ with such subpoena or civil investigative demand~~, it being acknowledged by the parties hereto that time is of the essence~~. In the event the Governmental Authority disputes the adequacy of compliance by ~~any such Person~~ a party with respect to a second request under the HSR Act or any similar inquiry or request under applicable Foreign Antitrust Laws, subpoena or civil investigative demand, such party shall endeavor ~~(and in the case of Parent cause its Affiliates to endeavor)~~ to satisfy the Governmental Authority so as to minimize any delay in the conduct or resolution of the investigation. (e) From the date of this Agreement through the date ~~(i)~~ of termination of the required waiting periods under the HSR Act and all applicable Foreign Antitrust ~~Laws~~ Laws, Purchaser shall not, and ~~(ii) the Required Parent Consents are obtained, the Parent and~~ shall cause its Affiliates ~~shall~~ not to, take any action that could reasonably be expected to ~~hinder~~ increase the risk of hindering or ~~delay~~delaying, as applicable, the obtaining of clearance or the expiration of the required waiting periods under the HSR Act ~~and~~ or such applicable Foreign Antitrust Laws, including acquiring or agreeing to acquire any rights, assets, business, Person or division thereof (through acquisition, license, joint venture, collaboration or otherwise), if such acquisition could reasonably be expected to increase the risk of hindering or delaying, as applicable, the obtaining of clearance or the Required Parent Consents from the applicable Governmental Authorities. (f) The parties acknowledge and agree that the obligations set forth in this Section 5.05 shall be in addition to, and not in limitation expiration of the ~~generality of,~~ required waiting periods under the ~~matters set forth in Section 5.03 and Section 5.04~~HSR Act or such applicable Foreign Antitrust Laws.

Appears in 1 contract

Samples: Merger Agreement (Compass Group Diversified Holdings LLC)

Antitrust Notifications and Other Regulatory Approvals. (a) Each of the ~~Company, Parent and Merger Sub~~ Parties shall, and ~~Parent~~ the Buyer and Sellers shall cause ~~its~~ their respective Affiliates to, cooperate with each other and shall use, and ~~Parent~~ the Buyer and Sellers shall cause ~~its~~ their respective Affiliates to use, their respective reasonable best efforts to prepare and file (i) required Notification and Report Forms under the HSR Act and the rules and regulations promulgated thereunder with the FTC and the DOJ, (ii) notifications, filings, registrations, submissions and other materials required or necessary under any applicable Foreign Antitrust Law and (iii) notifications, filings, registrations, submissions or other materials required or necessary to obtain those consents of Governmental Authorities listed on Schedule 5.05(a) (the “Required Parent Consents”), in each case, as soon as practicable following the date of this Agreement HSR Act Notification and Report Forms with the FTC and the DOJ (but in ~~the case of clause (i),~~ no event later than ~~the tenth~~ ten (~~10th~~10) Business ~~Day following~~ Days after the date ~~hereof~~of this Agreement absent mutual agreement by the Parties). ~~All filings made in connection with the foregoing sentence shall be made in substantial compliance with the requirements of applicable Antitrust Law~~As soon as reasonably practicable, ~~including the HSR Act and applicable Foreign Antitrust Laws. Each~~ each of the ~~Company, Parent and Merger Sub~~ Parties shall make, and ~~Parent~~ the Buyer and Seller shall cause ~~its~~ their respective Affiliates to make, ~~such~~ any other filings and submissions in other jurisdictions as are ~~necessary~~mutually agreed by the Parties, if any, ~~in other jurisdictions in order to~~ and shall, as soon as reasonably practicable, substantially comply with ~~all applicable Antitrust Laws and shall promptly provide any~~ supplemental information or documentation requested by any Governmental ~~Authority relating thereto~~Authority, if any, in connection with the transaction(s) contemplated by this Agreement. ~~All~~ The Buyer shall pay all required filing fees ~~payable~~ in connection with the notifications, filings, registrations, submissions or other materials contemplated by this Section ~~5.05 shall be paid entirely by Parent~~5.05. Subject to the Confidentiality Agreement and applicable ~~Laws~~Laws or Orders, the ~~parties to this Agreement~~ Parties shall, and ~~Parent~~ the Buyer shall cause its Affiliates to, coordinate and cooperate fully and promptly with each other in exchanging such information and providing such assistance as the other parties may reasonably request in connection with the foregoing and in seeking early termination of any applicable waiting ~~periods, including those~~ periods under the HSR ~~Act and any applicable Foreign Antitrust Law~~Act. (b) To the extent not prohibited by applicable ~~Law~~Law or Order, each ~~party to this Agreement~~ Party shall promptly notify ~~and furnish~~ the other ~~parties copies~~ Parties of ~~(i)~~ the substance of any ~~filing such party~~ submission, correspondence, communication, or ~~any of~~ meeting between it or its ~~Affiliates submits to~~ Representatives and any Governmental Authority and (ii) any correspondence or communication between it or any of its Affiliates or any of their respective representatives, on the one hand, and any Governmental Authority, on the other hand, in each case relating to the subject matter of this Section 5.05 or the transactions contemplated by this Agreement (and, in the case of any oral communication, a summary of such communication) and shall consult with and permit the other parties to review in advance any proposed filing and any written or oral communication or correspondence by such party to any Governmental Authority relating to the subject matter of this Section 5.05 or the transactions contemplated by this Agreement, and shall consider in good faith the views of such party in connection with any proposed filing and any written or oral communication or correspondence to any Governmental Authority, including the FTC and the DOJ, relating that relate to the subject matter of this Section 5.05 or the transactions contemplated by this Agreement. ~~No party~~ To the extent practicable, each Party shall consult with the other Parties in advance regarding any such submission, correspondence, communication or meeting, shall consider in good faith the views of such Party, and shall provide the other Parties with the opportunity to ~~this Agreement shall agree to, or permit any of its Affiliates or any of its or their respective representatives to,~~ participate in any ~~meeting~~ such communication or ~~discussion~~ meeting. Notwithstanding anything to the contrary herein, the Buyer shall, in consultation with ~~any~~ the Sellers, determine the strategy to be pursued for obtaining and lead the effort to obtain all necessary actions or nonactions and Consents from Governmental ~~Authority~~ Entities in ~~respect of any filings, investigation, inquiry or any other matter contemplated by this Section 5.05 or any transaction~~ connection with the transactions contemplated by this Agreement ~~unless it consults with~~ and the ~~other parties~~ Sellers shall take all reasonable actions to support the Buyer in ~~advance and~~connection therewith; provided, however, that Buyer shall not more than once, without prior written consent of the Sellers, withdraw or seek to withdraw or refile its HSR notification or cause the ~~extent permitted by such Governmental Authority, gives~~ Sellers to do the ~~other parties the opportunity to attend and participate in such meeting or discussion~~same. (c) Notwithstanding anything in this Agreement to the contrary, ~~Parent and~~ nothing in this Agreement requires the ~~Company shall, and Parent shall cause~~ Buyer or any of its Affiliates to, take any and all actions necessary to obtain any consents, clearances or approvals required under or in connection with the HSR Act, the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the Federal Trade Commission Act, as amended, and any other federal or state law, regulation or decree designed or intended to prohibit, restrict or regulate actions or transactions having the purpose or effect of monopolization, restraint of trade or harm to competition, including any Foreign Antitrust Law (collectively “Antitrust Laws”), and to enable all waiting periods under any Antitrust Law to expire, and to avoid or eliminate each and every impediment under any Antitrust Law asserted by any Governmental Authority, in each case, to cause the Merger and the other transactions contemplated hereby to occur as promptly as practicable following the date of this Agreement and, in any event, prior to the Termination Date, including (i) ~~promptly complying with~~ to litigate or ~~modifying~~ participate in the litigation of any ~~requests~~ proceeding under the Antitrust Laws or ~~inquiries for additional information~~ involving the FTC or ~~documentation (including any second request) by any Governmental Authority~~DOJ, whether judicial or administrative, or (ii) ~~offering~~propose, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, license or other disposition of any and all of the capital stock, assets, rights, products or businesses of Parent and its Affiliates and the Company and its Subsidiaries and any other restrictions on the activities of Parent and its Affiliates and the Company and its Subsidiaries and (iii) contesting, defending and appealing any threatened or pending Litigation or preliminary or permanent injunction or other Order or Law that would adversely affect the ability of any party hereto to consummateagree to, or ~~otherwise delay the consummation of~~accept any undertaking, ~~the transactions contemplated hereby and taking any and all other actions to prevent the entry, enactment~~ or ~~promulgation thereof; provided that Parent and its Subsidiaries shall not be required to~~ take any action that would ~~be materially adverse~~ prohibit or limit the freedom of action with respect to, limit its ability to ~~Parent and its Subsidiaries and~~ retain, or place any conditions on, the ~~Company and its Subsidiaries taken as a whole. Notwithstanding~~ ownership or operation by the ~~foregoing~~ Buyer or ~~anything in this Agreement to the contrary, in no event shall the Company or any of~~ its Affiliates ~~be obligated to commit to take~~ of any ~~action pursuant to this Section 5.05, the consummation of which is not conditioned on the consummation~~ portion of the ~~Closing~~business or assets of the Buyer or its Affiliates, or ~~pay~~ the Sellers or their Subsidiaries or Affiliates, or compel the Buyer or its Affiliates, or the Sellers or their Subsidiaries or Affiliates, to dispose of, divest, hold separate, or license any ~~fee~~ portion of the assets or ~~grant any concession in connection with obtaining any consents, authorizations~~ Intellectual Property of the Buyer or ~~approvals required in order to consummate~~ its Affiliates or the ~~transactions contemplated hereby~~Sellers or their Subsidiaries or Affiliates. (d) In the event Parent, the Company or any of the Parent’s Affiliates receives a second request under the HSR Act or any similar inquiry or request under applicable Foreign Antitrust Laws in connection with the transactions contemplated by this Agreement, such party shall promptly comply (and in the case of Parent cause its Affiliates to promptly comply) with such request (i) as provided by Section 7A(e) of the HSR Act or (ii) as otherwise provided under applicable Foreign Antitrust Laws, it being acknowledged and agreed by the parties hereto that time is of the essence. For purposes of this provision, such Persons shall be deemed to have complied with any such request by providing a response that such Person in good faith believes to be in substantial compliance and by certifying in writing to the other parties its prompt, substantial compliance. In the event that any such Person receives a subpoena or civil investigative demand requesting materials and information similar to that usually demanded in a second request under the HSR Act or any similar inquiry or request under applicable Foreign Antitrust Laws, such Person shall promptly comply (and in the case of Parent cause its Affiliates to promptly comply) with such subpoena or civil investigative demand, it being acknowledged by the parties hereto that time is of the essence. In the event the Governmental Authority disputes the adequacy of compliance by any such Person with respect to a second request under the HSR Act or any similar inquiry or request under applicable Foreign Antitrust Laws, subpoena or civil investigative demand, such party shall endeavor (and in the case of Parent cause its Affiliates to endeavor) to satisfy the Governmental Authority so as to minimize any delay in the conduct or resolution of the investigation. (e) From the date of this Agreement through the date that is the latest of (i) of termination of the required waiting periods under the HSR ~~Act and all applicable Foreign Antitrust Laws and~~ Act, (ii) any Consents of any other applicable Governmental Authority are obtained and (iii) the ~~Required Parent Consents are obtained~~Outside Date or, if earlier, the ~~Parent~~ Closing Date or the date of the termination of this Agreement pursuant to Article VII, the Buyer and its Affiliates shall not directly or indirectly (A) effect or enter into any discussions or negotiations with respect to any transaction, including entering into any joint venture or acquiring or agreeing to acquire, by merging with or into or consolidating with, or purchasing a substantial portion of the assets of or any equity in, or by any other manner, any assets or Person, or (B) subject to Section 5.05(b) and Section 5.05(c), take (or fail to take) any ~~action~~ other action, in each case that ~~could~~ would reasonably be expected to ~~hinder~~ delay or ~~delay, as applicable,~~ make more difficult the obtaining of clearance or the expiration of the ~~required~~ waiting periods under the HSR ~~Act and such applicable Foreign Antitrust Laws~~Act, or the obtaining of ~~the Required Parent~~ such Consents from ~~the~~ any applicable Governmental Authorities. (f) The parties acknowledge and agree that the obligations set forth in this Section 5.05 shall be in addition to, and not in limitation of the generality of, the matters set forth in Section 5.03 and Section 5.04.

Appears in 1 contract

Samples: Asset Purchase Agreement (Costar Group, Inc.)

Antitrust Notifications and Other Regulatory Approvals. (a) ~~Each of the Company, Parent and Merger Sub shall, and Parent~~ The Parties shall ~~cause its Affiliates to,~~ cooperate with each other ~~and~~ and, as necessary, shall ~~use, and Parent shall cause its Affiliates to use, their respective reasonable best efforts to~~ prepare and ~~file~~ file, or cause to be prepared and filed, (i) required ~~Notification~~ notification and ~~Report Forms~~ report forms under the HSR Act and the rules and regulations promulgated thereunder with the FTC and the ~~DOJ~~DOJ (and the Parties agree to seek early termination of the waiting period under the HSR Act) no later than five (5) Business Days from and after the date hereof, unless a later date is mutually agreed upon in writing by the Parties, (ii) notifications, filings, ~~registrations, submissions~~ registrations and other materials required or necessary under any applicable ~~Foreign Antitrust~~ Investment Law in the jurisdictions listed on Section 6.04(a) of the Disclosure Letter and (iii) notifications, filings, ~~registrations, submissions~~ registrations or other materials required or necessary to obtain those consents of Governmental Authorities listed on ~~Schedule 5.05(a~~Section 6.04(a) (of the ~~“Required Parent Consents”)~~Disclosure Letter, in each case, as soon as practicable following the date of this Agreement and in the case of clause (i), no later than the tenth (10th) Business Day following the date hereof. All filings made in connection with the foregoing sentence shall be made in substantial compliance with the requirements of applicable Antitrust Law, including the HSR Act and applicable Foreign Antitrust Laws. Each of the Company, Parent and Merger Sub shall makeAgreement, and ~~Parent~~ shall ~~cause its Affiliates~~ respond as promptly as practicable to ~~make, such other filings and submissions as are necessary, if any, in other jurisdictions in order to comply with~~ all ~~applicable Antitrust Laws and shall promptly provide any supplemental information~~ requests or ~~documentation requested by~~ inquiries received from any Governmental Authority ~~relating thereto~~for additional documentation or information. All filing fees payable in connection with the notifications, filings, ~~registrations, submissions~~ registrations or other materials contemplated by this Section ~~5.05~~ 6.04 shall be paid entirely by ~~Parent~~the Purchaser. (b) Each Party shall promptly notify the other Parties of any material communication it or any of its Affiliates receives from any Governmental Authority relating to the matters that are the subject of this Agreement and permit the other Parties to review a reasonable amount of time in advance, to the extent permitted by Law, any proposed material communication by such Party to any Governmental Authority. No Party shall agree to participate in any substantive meeting with any Governmental Authority in respect of any filings, investigation or other inquiry unless it consults with the other Parties a reasonable amount of time in advance and, to the extent permitted by such Governmental Authority, gives the other Parties the opportunity to attend and participate at such meeting. Subject to the Confidentiality Agreement and applicable Laws, the ~~parties to this Agreement shall, and Parent~~ Parties shall ~~cause its Affiliates to,~~ coordinate and cooperate fully and promptly with each other in exchanging such information and providing such assistance as the other ~~parties~~ Parties may reasonably request in connection with the foregoing and in seeking early termination of any applicable waiting periods, including those under the HSR Act and any applicable ~~Foreign~~ non-U.S. Antitrust Law~~. (b) To~~ . Subject to the ~~extent not prohibited by~~ Confidentiality Agreement and applicable ~~Law~~Laws, the Parties shall provide each ~~party to this Agreement shall promptly notify and furnish the~~ other ~~parties~~ with copies of ~~(i) any filing such party~~ all material correspondence, filings or ~~any of its Affiliates submits to any Governmental Authority and (ii) any correspondence or communication~~ communications between ~~it or any of its Affiliates~~ them or any of their ~~respective~~ representatives, on the one hand, and any Governmental ~~Authority~~Authority or members of its staff, on the other hand, ~~in each case relating~~ with respect to ~~the subject matter of this Section 5.05 or the transactions contemplated by~~ this Agreement ~~(and, in the case of any oral communication, a summary of such communication)~~ and shall consult with and permit the other parties to review in advance any proposed filing and any written or oral communication or correspondence by such party to any Governmental Authority relating to the subject matter of this Section 5.05 or the transactions contemplated by this Agreement, and shall consider in good faith the views of such party in connection with any proposed filing and any written or oral communication or correspondence to any Governmental Authority, including the FTC and the DOJ, relating to the subject matter of this Section 5.05 or the transactions contemplated by this Agreement. No party to this Agreement shall agree to, or permit any of its Affiliates or any of its or their respective representatives to, participate in any meeting or discussion with any Governmental Authority in respect of any filings, investigation, inquiry or any other matter contemplated by this Section 5.05 or any transaction contemplated by this Agreement unless it consults with the other parties in advance and, to the extent permitted by such Governmental Authority, gives the other parties the opportunity to attend and participate in such meeting or discussion. (c) ~~Notwithstanding anything~~ In furtherance and not in ~~this Agreement to~~ limitation of the ~~contrary~~foregoing, ~~Parent and~~ the ~~Company shall~~Purchaser agrees to, and ~~Parent shall~~ agrees to cause its Affiliates and representatives to, take promptly any and all steps and actions necessary to obtain ~~any consents, clearances or approvals required under or in connection with~~ the ~~HSR Act, the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the Federal Trade Commission Act, as amended,~~ ITAR Registration and any other federal or state law, regulation or decree designed or intended to prohibit, restrict or regulate actions or transactions having the purpose or effect of monopolization, restraint of trade or harm to competition, including any Foreign Antitrust Law (collectively “Antitrust Laws”), and to enable all waiting periods under any Antitrust Law to expire, and to avoid or eliminate each and every impediment ~~under any Antitrust Law~~ that may be asserted by any Governmental ~~Authority, in each case,~~ Authority or any other Person with respect to ~~cause~~ the ~~Merger and the other~~ transactions contemplated ~~hereby~~ by this Agreement so as to enable the Closing to occur as ~~promptly~~ soon as ~~practicable following the date of this Agreement and,~~ possible and in any ~~event,~~ event prior to the Termination Date, ~~including~~ including, as applicable, (i) ~~promptly complying with or modifying any requests or inquiries for additional~~ providing information ~~or documentation (including any second request) by any~~ to such Governmental ~~Authority,~~ Authorities and other Persons and (ii) ~~offering~~proposing, negotiating, committing to ~~and~~ or effecting, by consent decree, hold separate order or otherwise, (A) the sale, ~~divestiture~~divestiture or disposition of, ~~license~~ or holding separate (through the establishment of a trust or otherwise), such of its and its Affiliates’ assets, properties and such of the Business Assets and Assumed Liabilities, (B) the termination, modification or extension of existing relationships and contractual rights and obligations of it, its Affiliates, the Companies or any of their respective Subsidiaries, (C) the establishment or creation of relationships and contractual rights and obligations of it, its Affiliates, the Companies or their respective Subsidiaries, (D) the termination of any relevant venture or other ~~disposition of~~ arrangement and (E) any ~~and all~~ other change or restructuring of the ~~capital stock~~Purchaser, ~~assets~~its Affiliates, ~~rights~~the Companies or their respective Subsidiaries, ~~products~~ in each case, as may be required to be taken in order to avoid the entry of, or ~~businesses of Parent and its Affiliates and~~ to effect the ~~Company and its Subsidiaries and~~ dissolution of, any ~~other restrictions on the activities of Parent and its Affiliates and the Company and its Subsidiaries and (iii) contesting~~decree, ~~defending and appealing any threatened or pending Litigation or preliminary or permanent injunction~~ order, judgment, injunction, temporary restraining order or other Order ~~or Law that~~ in any Action, which would ~~adversely affect~~ otherwise have the ~~ability~~ effect of ~~any party hereto to consummate, or otherwise delay~~ preventing the consummation ~~of,~~ of the transactions contemplated ~~hereby~~ by this Agreement or that would make the consummation of the transactions contemplated by this Agreement unlawful. In addition, the Purchaser shall oppose, through and ~~taking any~~ including Action on the merits (and all appeals with respect thereto), any claim asserted in court or other ~~actions~~ forum by any Governmental Authority or other Person in order to avoid entry of, or to have vacated or terminated, any decree, Order or judgment (whether temporary, preliminary or permanent) that would restrain or prevent the ~~entry~~Closing by the Termination Date. Notwithstanding anything to the contrary, ~~enactment~~ for the avoidance of doubt, none of Sellers or ~~promulgation thereof; provided that Parent~~ the Companies shall, and ~~its Subsidiaries shall not~~ no Subsidiary of any of the Companies or Sellers shall, be required to take any action ~~that~~ set forth in this Section 6.04(c) to satisfy the efforts standard set forth in this Section 6.04 (or in Section 6.02 or elsewhere in this Agreement). (d) Except as specifically required by this Agreement, the Purchaser will not (and will cause its Affiliates not to) take any action, or refrain from taking any action, the effect of which would be ~~materially adverse~~ to ~~Parent~~ delay or impede the ability of the Parties to consummate the transactions contemplated hereby. Without limiting the generality of the foregoing, the Purchaser will not (and will cause its ~~Subsidiaries and~~ Affiliates not to) (1) acquire or agree to acquire (by merging or consolidating with, or by purchasing a substantial portion of the ~~Company and its Subsidiaries taken as a whole. Notwithstanding the foregoing~~ assets of or ~~anything in this Agreement~~ equity in, or by any other manner), any Person or portion thereof, or otherwise acquire or agree to ~~the contrary~~acquire any assets, ~~in no event shall the Company~~ or (2) assign any of its ~~Affiliates be obligated~~ rights hereunder to ~~commit~~ any co-investor or permit any co-investor to ~~take any action pursuant to this Section 5.05~~acquire a direct or indirect interest in the Purchaser, in each case, if the entering into a definitive agreement relating to, or the consummation of, such acquisition, merger or consolidation or co-investor relationship could reasonably be expected to (i) impose any delay in the obtaining of, or increase the risk of ~~which is~~ not ~~conditioned on~~ obtaining, any permits, orders or other approvals of any Governmental Authority necessary to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period, (ii) increase the risk of any Governmental Authority asserting jurisdiction over the transactions contemplated hereby entering an order prohibiting the consummation of the ~~Closing~~transactions contemplated hereby, (iii) increase the risk of not being able to remove any such order on appeal or otherwise, or ~~pay any fee~~ (iv) delay or ~~grant any concession in connection with obtaining any consents, authorizations or approvals required in order to consummate~~ prevent the consummation of the transactions contemplated hereby. (de) In Notwithstanding anything to the ~~event Parent~~contrary herein, if there is any dispute regarding whether the Purchaser has complied with its obligations under this Section 6.04, the ~~Company or any~~ Purchaser shall bear the burden of ~~the Parent’s Affiliates receives a second request under the HSR Act or any similar inquiry or request under applicable Foreign Antitrust Laws~~ proof in ~~connection with the transactions contemplated by this Agreement, such party shall promptly comply (and in the case of Parent cause its Affiliates to promptly comply)~~ showing it has complied with such request (i) as provided by Section 7A(e) of the HSR Act or (ii) as otherwise provided under applicable Foreign Antitrust Laws, it being acknowledged and agreed by the parties hereto that time is of the essence. For purposes of this provision, such Persons shall be deemed to have complied with any such request by providing a response that such Person in good faith believes to be in substantial compliance and by certifying in writing to the other parties its prompt, substantial compliance. In the event that any such Person receives a subpoena or civil investigative demand requesting materials and information similar to that usually demanded in a second request under the HSR Act or any similar inquiry or request under applicable Foreign Antitrust Laws, such Person shall promptly comply (and in the case of Parent cause its Affiliates to promptly comply) with such subpoena or civil investigative demand, it being acknowledged by the parties hereto that time is of the essence. In the event the Governmental Authority disputes the adequacy of compliance by any such Person with respect to a second request under the HSR Act or any similar inquiry or request under applicable Foreign Antitrust Laws, subpoena or civil investigative demand, such party shall endeavor (and in the case of Parent cause its Affiliates to endeavor) to satisfy the Governmental Authority so as to minimize any delay in the conduct or resolution of the investigationobligations. (e) From the date of this Agreement through the date (i) of termination of the required waiting periods under the HSR Act and all applicable Foreign Antitrust Laws and (ii) the Required Parent Consents are obtained, the Parent and its Affiliates shall not take any action that could reasonably be expected to hinder or delay, as applicable, the obtaining of clearance or the expiration of the required waiting periods under the HSR Act and such applicable Foreign Antitrust Laws, or the obtaining of the Required Parent Consents from the applicable Governmental Authorities. (f) The parties acknowledge and agree that the obligations set forth in this Section 5.05 shall be in addition to, and not in limitation of the generality of, the matters set forth in Section 5.03 and Section 5.04.

Appears in 1 contract

Samples: Contribution and Equity Purchase Agreement (McAfee Corp.)

Antitrust Notifications and Other Regulatory Approvals. (a) Each of the ~~Company, Parent~~ Company and ~~Merger Sub~~ Buyer shall, and ~~Parent~~ shall cause ~~its~~ each of their respective Affiliates to, cooperate with each other and shall use, and ~~Parent~~ the Company and Buyer shall cause ~~its~~ their respective Affiliates to use, their respective reasonable best efforts to prepare and file ~~(i)~~ required Notification and Report Forms under the HSR Act ~~and the rules and regulations promulgated thereunder~~ with the FTC and the DOJ, (ii) notifications, filings, registrations, submissions and other materials required or necessary under any applicable Foreign Antitrust Law and (iii) notifications, filings, registrations, submissions or other materials required or necessary to obtain those consents of Governmental Authorities listed on Schedule 5.05(a) (the “Required Parent Consents”), in each case, DOJ as ~~soon~~ expeditiously as ~~practicable~~ possible following the date of this ~~Agreement and~~ Agreement, but in ~~the case of clause (i),~~ no event later than ~~the tenth~~ ten (~~10th~~10) Business ~~Day following~~ Days after the date hereof. All filings made in connection with the foregoing sentence shall be made in substantial compliance with the requirements of applicable Antitrust Law, including the HSR Act and any other applicable ~~Foreign Antitrust Laws~~Law. Each of the ~~Company, Parent~~ Company and ~~Merger Sub~~ Buyer shall make, and ~~Parent~~ shall cause ~~its~~ their respective Affiliates to make, such other filings and submissions as are ~~necessary~~necessary or advisable, if any, in other jurisdictions in order to comply with all applicable Antitrust Laws and all other applicable Laws and shall promptly provide any supplemental information or documentation ~~requested~~ required by any Governmental Authority relating thereto. All filing fees payable in connection with the notifications, ~~filings, registrations, submissions~~ filings or ~~other materials~~ registrations contemplated by this Section ~~5.05~~ 7.05 shall be paid entirely by ~~Parent~~Buyer. Subject to the Confidentiality ~~Agreement~~ Agreement, Section 7.07 and applicable ~~Laws~~Laws relating to the exchange of information, the parties to this Agreement shall, and ~~Parent~~ shall cause ~~its~~ their respective Affiliates to, use their respective reasonable best efforts to coordinate and cooperate ~~fully and~~ promptly with each other in exchanging such information and providing such assistance as the other parties may reasonably request in connection with the ~~foregoing and in seeking early termination of any applicable waiting periods~~foregoing. Notwithstanding the foregoing, including those under the HSR Act and any applicable Foreign Antitrust Law. (b) To the extent not prohibited by applicable Law, each party to this Agreement shall promptly notify and furnish the other parties copies of (i) any filing such party or any of its Affiliates submits to any Governmental Authority and (ii) any correspondence or communication between it or any of its Affiliates or any of their respective representatives, on the one hand, and any Governmental Authority, on the other hand, in each case relating to the subject matter of this Section 5.05 or the transactions contemplated by this Agreement (and, in the case of any oral communication, a summary of such communication) and shall consult with and permit the other parties to review in advance any proposed filing and any written or oral communication or correspondence by such party to any Governmental Authority relating to the subject matter of this Section 5.05 or the transactions contemplated by this Agreement, and shall consider in good faith the views of such party in connection with any proposed filing and any written or oral communication or correspondence to any Governmental Authority, including the FTC and the DOJ, relating to the subject matter of this Section 5.05 or the transactions contemplated by this Agreement. No party to this Agreement shall agree to, or permit any of its Affiliates or any of its or their respective representatives to, participate in any meeting or discussion with any Governmental Authority in respect of any filings, investigation, inquiry or any other matter contemplated by this Section 5.05 or any transaction contemplated by this Agreement unless it consults with the other parties in advance and, to the extent permitted by such Governmental Authority, gives the other parties the opportunity to attend and participate in such meeting or discussion. (c) Notwithstanding anything in this Agreement to the contrary, Parent and the Company shall, and Parent shall cause its Affiliates to, take any and all actions necessary to obtain any consents, clearances or approvals required under or in connection with the ~~HSR Act~~performance of each party’s respective obligations, the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the Federal Trade Commission Act, as amended, and any other federal or state law, regulation or decree designed or intended to prohibit, restrict or regulate actions or transactions having the purpose or effect of monopolization, restraint of trade or harm to competition, including any Foreign Antitrust Law (collectively “Antitrust Laws”), and to enable all waiting periods under any Antitrust Law to expire, and to avoid or eliminate each and every impediment under any Antitrust Law asserted by any Governmental Authority, in each case, to cause the Merger and the other transactions contemplated hereby to occur as promptly as practicable following the date of this Agreement and, in any event, prior to the Termination Date, including (i) promptly complying with or modifying any requests or inquiries for additional information or documentation (including any second request) by any Governmental Authority, (ii) offering, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, license or other disposition of any and all of the capital stock, assets, rights, products or businesses of Parent and its Affiliates and the Company and ~~its Subsidiaries and any other restrictions on the activities of Parent and its Affiliates and the Company and its Subsidiaries and (iii) contesting~~Buyer may, ~~defending and appealing any threatened or pending Litigation or preliminary or permanent injunction or other Order or Law that would adversely affect the ability of any party hereto to consummate~~as each determines is reasonably necessary, ~~or otherwise delay the consummation of, the transactions contemplated hereby and taking any and all other actions to prevent the entry, enactment or promulgation thereof;~~ designate competitively sensitive material provided that Parent and its Subsidiaries shall not be required to take any action that would be materially adverse to Parent and its Subsidiaries and the Company and its Subsidiaries taken as a whole. Notwithstanding the foregoing or anything in this Agreement to the ~~contrary, in no event shall the Company or any of its Affiliates be obligated to commit to take any action~~ other pursuant to this Section ~~5.05,~~ 7.05(a) as “Outside Counsel Only.” Such materials and the ~~consummation of which is not conditioned on~~ information contained therein shall be given only to the ~~consummation~~ outside legal counsel of the ~~Closing~~recipient and will not be disclosed by such outside counsel to directors, officers or ~~pay any fee or grant any concession~~ employees of the recipient unless express permission is obtained in ~~connection with obtaining any consents, authorizations or approvals required in order to consummate~~ advance from the ~~transactions contemplated hereby.~~ source of the materials (~~d) In the event Parent,~~ the Company or any of the Parent’s Affiliates receives a second request under the HSR Act or any similar inquiry or request under applicable Foreign Antitrust Laws in connection with the transactions contemplated by this AgreementBuyer, ~~such party shall promptly comply (and in~~ as the case ~~of Parent cause~~ may be) or its Affiliates to promptly comply) with such request (i) as provided by Section 7A(e) of the HSR Act or (ii) as otherwise provided under applicable Foreign Antitrust Laws, it being acknowledged and agreed by the parties hereto that time is of the essence. For purposes of this provision, such Persons shall be deemed to have complied with any such request by providing a response that such Person in good faith believes to be in substantial compliance and by certifying in writing to the other parties its prompt, substantial compliance. In the event that any such Person receives a subpoena or civil investigative demand requesting materials and information similar to that usually demanded in a second request under the HSR Act or any similar inquiry or request under applicable Foreign Antitrust Laws, such Person shall promptly comply (and in the case of Parent cause its Affiliates to promptly comply) with such subpoena or civil investigative demand, it being acknowledged by the parties hereto that time is of the essence. In the event the Governmental Authority disputes the adequacy of compliance by any such Person with respect to a second request under the HSR Act or any similar inquiry or request under applicable Foreign Antitrust Laws, subpoena or civil investigative demand, such party shall endeavor (and in the case of Parent cause its Affiliates to endeavor) to satisfy the Governmental Authority so as to minimize any delay in the conduct or resolution of the investigationlegal counsel. (e) From the date of this Agreement through the date (i) of termination of the required waiting periods under the HSR Act and all applicable Foreign Antitrust Laws and (ii) the Required Parent Consents are obtained, the Parent and its Affiliates shall not take any action that could reasonably be expected to hinder or delay, as applicable, the obtaining of clearance or the expiration of the required waiting periods under the HSR Act and such applicable Foreign Antitrust Laws, or the obtaining of the Required Parent Consents from the applicable Governmental Authorities. (f) The parties acknowledge and agree that the obligations set forth in this Section 5.05 shall be in addition to, and not in limitation of the generality of, the matters set forth in Section 5.03 and Section 5.04.

Appears in 1 contract

Samples: Securities Purchase Agreement (e.l.f. Beauty, Inc.)

Antitrust Notifications and Other Regulatory Approvals. (a) Each of the Blocker, the Company, ~~Parent~~ Parent, Merger Sub 1 and Merger Sub 2 shall, and ~~Parent~~ shall cause ~~its Affiliates~~ each of their respective Subsidiaries to, cooperate with each other and ~~shall use, and Parent shall cause~~ use its ~~Affiliates to use, their respective~~ reasonable best efforts to promptly prepare and file ~~(i)~~ following the date of this Agreement the required Notification and Report Forms under the HSR Act ~~and the rules and regulations promulgated thereunder~~ with the FTC and the ~~DOJ,~~ DOJ (iibut in no event later than ten (10) notifications, filings, registrations, submissions and other materials required or necessary under any applicable Foreign Antitrust Law and (iii) notifications, filings, registrations, submissions or other materials required or necessary to obtain those consents of Governmental Authorities listed on Schedule 5.05(a) (the “Required Parent Consents”), in each case, as soon as practicable following Business Days after the date of this ~~Agreement and in the case of clause (i~~Agreement), no later than the tenth (10th) Business Day following the date hereof. All filings made in connection with the foregoing sentence shall be made in substantial compliance with the requirements of applicable Antitrust Law, including the HSR Act and applicable Foreign Antitrust Laws. Each of the Blocker, the Company, ~~Parent~~ Parent, Merger Sub 1 and Merger Sub ~~shall make~~2 shall, and ~~Parent~~ shall cause ~~its Affiliates to make~~each of their respective Subsidiaries to, ~~such~~ make any other filings and submissions as are ~~necessary~~set forth in Schedule 6.06(a) or are mutually agreed by Parent and the Company, if any, ~~in other jurisdictions in order to comply with all applicable Antitrust Laws~~ as soon as reasonably practicable and shall promptly provide any supplemental information or documentation reasonably requested by any Governmental Authority relating thereto. ~~All filing fees payable in connection with the notifications, filings, registrations, submissions or other materials contemplated by this Section 5.05 shall be paid entirely by Parent.~~ Subject to the Confidentiality Agreement (provided that nothing in the Confidentiality Agreement shall, and shall cause each of their respective Subsidiaries to, restrict the ability of any party hereto to comply with its obligations under this Agreement) and applicable Laws, the parties to this Agreement (other than the Sellers’ Representative) shall, and ~~Parent~~ shall cause ~~its Affiliates~~ each of their respective Subsidiaries to, coordinate and cooperate ~~fully and~~ promptly with each other in exchanging such information and providing such assistance as the other parties may reasonably request in connection with the foregoing and in seeking early termination of any applicable waiting ~~periods, including those~~ periods under the HSR ~~Act~~ Act; provided that in no event shall any party hereto be required to disclose to the other parties hereto any personally identifying information or personal financial statements in respect of itself, any of its Affiliates or any director, officer or employee of any of the foregoing (it being understood that the foregoing proviso shall not limit the obligations of any party to make disclosures required by Governmental Authorities in connection with the filings and ~~any applicable Foreign Antitrust Law~~submissions which are the subject of this Section 6.06). (b) To the extent not prohibited by applicable Law, each party to this Agreement shall promptly notify ~~and furnish~~ the other parties ~~copies~~ of ~~(i)~~ the substance of any ~~filing such party~~ submission, correspondence, communication, or ~~any of~~ meeting between it or its ~~Affiliates submits to~~ representatives and any Governmental Authority and (ii) any correspondence or communication between it or any of its Affiliates or any of their respective representatives, on the one hand, and any Governmental Authority, on the other hand, in each case relating that relates to the subject matter of this Section 5.05 or the transactions contemplated by this Agreement (and, in the case of any oral communication, a summary of such communication) and shall consult with and permit the other parties to review in advance any proposed filing and any written or oral communication or correspondence by such party to any Governmental Authority relating to the subject matter of this Section 5.05 6.06 or the transactions contemplated by this Agreement. To the extent practicable, ~~and~~ each party shall consult with the other parties in advance regarding any such submission, correspondence, communication or meeting, shall consider in good faith the views of such party ~~in connection~~ with ~~any proposed filing~~ respect thereto, and ~~any written or oral communication or correspondence~~ shall provide the other parties with the opportunity to any Governmental Authority, including the FTC and the DOJ, relating to the subject matter of this Section 5.05 or the transactions contemplated by this Agreement. No party to this Agreement shall agree to, or permit any of its Affiliates or any of its or their respective representatives to, participate in any ~~meeting~~ such communication or discussion with any Governmental Authority in respect of any filings, investigation, inquiry or any other matter contemplated by this Section 5.05 or any transaction contemplated by this Agreement unless it consults with the other parties in advance and, to the extent permitted by such Governmental Authority, gives the other parties the opportunity to attend and participate in such meeting or discussionmeeting. (c) Notwithstanding anything in this Agreement to the contrary, ~~Parent~~ each of Parent, the Blocker and the Company shall, and ~~Parent~~ shall cause ~~its Affiliates~~ each of their respective Subsidiaries to, take any and all actions necessary to obtain any consents, clearances or approvals required under or in connection with the HSR Act, the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the Federal Trade Commission Act, as amended, and any other federal or state law, regulation or decree designed or intended to prohibit, restrict or regulate actions or transactions having the purpose or effect of monopolization, restraint of trade or harm to competition, including any Foreign Antitrust Law (collectively “Antitrust Laws”), and to enable all waiting periods under any Antitrust Law to expire, and to avoid or eliminate each and every impediment under any Antitrust Law asserted by any Governmental Authority, in each case, to cause the Merger and the other transactions contemplated hereby to occur as promptly as practicable following the date of this Agreement and, in any event, prior to the Termination Date, including (i) promptly complying with or modifying any requests or inquiries for additional information or documentation (including any second request) by any Governmental Authority, (ii) offering, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, license or other disposition of any and all of the capital stock, assets, rights, products or businesses of Parent and use its Affiliates and the Company and its Subsidiaries and any other restrictions on the activities of Parent and its Affiliates and the Company and its Subsidiaries and (iii) contesting, defending and appealing any threatened or pending Litigation or preliminary or permanent injunction or other Order or Law that would adversely affect the ability of any party hereto to consummate, or otherwise delay the consummation of, the transactions contemplated hereby and taking any and all other actions to prevent the entry, enactment or promulgation thereof; provided that Parent and its Subsidiaries shall not be required reasonable best efforts to take ~~any action that would be materially adverse~~ such actions as are necessary or advisable to Parent and its Subsidiaries and the Company and its Subsidiaries taken as a whole. Notwithstanding the foregoing or anything in this Agreement to the contrary, in no event shall the Company or any of its Affiliates be obligated to commit to take any action pursuant to this Section 5.05, the consummation of which is not conditioned on the consummation of the Closing, or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals required in order to consummate the transactions contemplated hereby. (d) In the event Parent, the Company or any of the Parent’s Affiliates receives a second request under the HSR Act or any similar inquiry or request under applicable Foreign Antitrust Laws in connection with the transactions contemplated by this Agreement, such party shall promptly comply (and in the case of Parent cause its Affiliates to promptly comply) with such request (i) as provided by Section 7A(e) of the HSR Act or (ii) as otherwise provided under applicable Foreign Antitrust Laws, it being acknowledged and agreed by the parties hereto that time is of the essence. For purposes of this provision, such Persons shall be deemed to have complied with any such request by providing a response that such Person in good faith believes to be in substantial compliance and by certifying in writing to the other parties its prompt, substantial compliance. In the event that any such Person receives a subpoena or civil investigative demand requesting materials and information similar to that usually demanded in a second request under the HSR Act or any similar inquiry or request under applicable Foreign Antitrust Laws, such Person shall promptly comply (and in the case of Parent cause its Affiliates to promptly comply) with such subpoena or civil investigative demand, it being acknowledged by the parties hereto that time is of the essence. In the event the Governmental Authority disputes the adequacy of compliance by any such Person with respect to a second request under the HSR Act or any similar inquiry or request under applicable Foreign Antitrust Laws, subpoena or civil investigative demand, such party shall endeavor (and in the case of Parent cause its Affiliates to endeavor) to satisfy the Governmental Authority so as to minimize any delay in the conduct or resolution of the investigation. (e) From the date of this Agreement through the date (i) of termination of the required waiting periods under the HSR Act and all applicable Foreign Antitrust Laws and (ii) the Required Parent Consents are obtained, the Parent and its Affiliates shall not take any action that could reasonably be expected to hinder or delay, as applicable, the obtaining of clearance or the expiration of the required waiting periods under the HSR Act and such applicable Foreign Antitrust Laws, or the obtaining of the Required Parent Consents from the applicable Governmental Authorities. (f) The parties acknowledge and agree that the obligations set forth in this Section 5.05 shall be in addition to, and not in limitation of the generality of, the matters set forth in Section 5.03 and Section 5.04.obtain

Appears in 1 contract

Samples: Merger Agreement (Rite Aid Corp)

Antitrust Notifications and Other Regulatory Approvals. (a) Each of the ~~Company, Parent and Merger Sub~~ Parties shall, and ~~Parent~~ the Buyer and Sellers shall cause ~~its~~ their respective Affiliates to, cooperate with each other and shall use, and ~~Parent~~ the Buyer and Sellers shall cause ~~its~~ their respective Affiliates to use, their respective reasonable best efforts to prepare and file (i) required Notification and Report Forms under the HSR Act and the rules and regulations promulgated thereunder with the FTC and the DOJ, (ii) notifications, filings, registrations, submissions and other materials required or necessary under any applicable Foreign Antitrust Law and (iii) notifications, filings, registrations, submissions or other materials required or necessary to obtain those consents of Governmental Authorities listed on Schedule 5.05(a) (the “Required Parent Consents”), in each case, as soon as practicable following the date of this Agreement the required Notification and in the case of clause (i), no later than the tenth (10th) Business Day following the date hereof. All filings made in connection with the foregoing sentence shall be made in substantial compliance with the requirements of applicable Antitrust Law, including Report Forms under the HSR Act with the FTC and ~~applicable Foreign Antitrust Laws~~the DOJ (but in no event later than five (5) Business Days after the date of this Agreement absent mutual agreement by the Parties). Each of the ~~Company, Parent and Merger Sub~~ Parties shall make, and ~~Parent~~ the Buyer and Sellers shall cause ~~its~~ their respective Affiliates to make, ~~such~~ any other filings and submissions in other jurisdictions as are ~~necessary~~mutually agreed by the Parties, if any, ~~in other jurisdictions in order to comply with all applicable Antitrust Laws~~ as soon as practicable and shall promptly provide any supplemental information or documentation requested by any Governmental Authority relating thereto. ~~All~~ The Buyer shall pay all required filing fees ~~payable~~ in connection with the notifications, filings, registrations, submissions or other materials contemplated by this Section ~~5.05 shall be paid entirely by Parent~~5.05. Subject to the Confidentiality Agreement and applicable ~~Laws~~Laws or Orders, the ~~parties to this Agreement~~ Parties shall, and ~~Parent~~ the Buyer shall cause its Affiliates to, coordinate and cooperate fully and promptly with each other in exchanging such information and providing such assistance as the other parties may reasonably request in connection with the foregoing and in seeking early termination of any applicable waiting ~~periods, including those~~ periods under the HSR ~~Act and any applicable Foreign Antitrust Law~~Act; provided, however, that a Party may limit disclosure of competitively or commercially sensitive information to outside counsel for the other Party. (b) To the extent not prohibited by applicable ~~Law~~Law or Order, each ~~party to this Agreement~~ Party shall promptly notify ~~and furnish~~ the other ~~parties copies~~ Parties of ~~(i)~~ the substance of any ~~filing such party~~ submission, correspondence, communication, or ~~any of~~ meeting between it or its ~~Affiliates submits to~~ Representatives and any Governmental Authority and (ii) any correspondence or communication between it or any of its Affiliates or any of their respective representatives, on the one hand, and any Governmental Authority, on the other hand, in each case relating to the subject matter of this Section 5.05 or the transactions contemplated by this Agreement (and, in the case of any oral communication, a summary of such communication) and shall consult with and permit the other parties to review in advance any proposed filing and any written or oral communication or correspondence by such party to any Governmental Authority relating to the subject matter of this Section 5.05 or the transactions contemplated by this Agreement, and shall consider in good faith the views of such party in connection with any proposed filing and any written or oral communication or correspondence to any Governmental Authority, including the FTC and the DOJ, relating that relate to the subject matter of this Section 5.05 or the transactions contemplated by this Agreement. ~~No party~~ To the extent practicable, each Party shall consult with the other Parties in advance regarding any such submission, correspondence, communication or meeting, shall consider in good faith the views of such Party, and shall provide the other Parties with the opportunity to ~~this Agreement shall agree to, or permit any of its Affiliates or any of its or their respective representatives to,~~ participate in any ~~meeting~~ such communication or ~~discussion with any Governmental Authority in respect~~ meeting. Buyer shall not, without prior written consent of ~~any filings~~the Sellers, ~~investigation, inquiry~~ withdraw or ~~any other matter contemplated by this Section 5.05~~ seek to withdraw or any transaction contemplated by this Agreement unless it consults with the other parties in advance and, to the extent permitted by such Governmental Authority, gives the other parties the opportunity to attend and participate in such meeting or discussionrefile its HSR notification. (c) Notwithstanding anything in this Agreement to the contrary, ~~Parent and the Company~~ Buyer shall, and ~~Parent~~ the Buyer shall cause its Affiliates to, take any and all actions necessary to obtain expiration or termination of the required waiting periods and any consents, clearances or approvals required under or in connection with the HSR Act, the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the Federal Trade Commission Act, as amended, and any other federal or state law, regulation or decree designed or intended to prohibit, restrict or regulate actions or transactions having the purpose or effect of monopolization, restraint of trade or harm to competition, including any Foreign Antitrust ~~Law (collectively “Antitrust Laws”), and to enable all waiting periods under any Antitrust Law to expire,~~ Laws and to avoid or eliminate each and every impediment under any Antitrust ~~Law asserted by any Governmental Authority~~Law, in each case, to cause the ~~Merger~~ Closing and the other transactions contemplated hereby to occur as ~~promptly~~ soon as practicable following the date of this Agreement and, in any event, prior to the ~~Termination Date~~Outside Date or the date of the termination of this Agreement pursuant to Article VII, whichever is later, including (i) ~~promptly~~ expeditiously complying with or modifying any requests or inquiries for additional information or documentation (including any ~~second request~~Second Request) by any Governmental Authority, (ii) offering, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, license or other disposition of any and all of the capital stock, assets, rights, products or businesses of ~~Parent~~ the Buyer and its Affiliates and the ~~Company~~ Business, the entrance into, and ~~its Subsidiaries~~ the amendment, modification or termination of, any Contracts or other arrangements, and any other restrictions on the activities of ~~Parent and its Affiliates and~~ the Company and its ~~Subsidiaries~~ Subsidiaries, and (iii) contesting, defending and appealing any threatened or pending ~~Litigation~~ Action or preliminary or permanent injunction or other Order ~~or Law~~ that would adversely affect the ability of any ~~party hereto~~ Party to consummate, or otherwise delay the consummation of, the transactions contemplated hereby and taking any and all other actions to prevent the entry, enactment or promulgation thereof; provided that Parent and its Subsidiaries shall not be required to take any action that would be materially adverse to Parent and its Subsidiaries and the Company and its Subsidiaries taken as a whole. Notwithstanding the foregoing or anything in this Agreement to the contrary, in no event shall the Company or any of its Affiliates be obligated to commit to take any action pursuant to this Section 5.05, the consummation of which is not conditioned on the consummation of the Closing, or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals required in order to consummate the transactions contemplated hereby. (d) In the event Parent, the Company or any of the Parent’s Affiliates receives a second request under the HSR Act or any similar inquiry or request under applicable Foreign Antitrust Laws in connection with the transactions contemplated by this Agreement, such party shall promptly comply (and in the case of Parent cause its Affiliates to promptly comply) with such request (i) as provided by Section 7A(e) of the HSR Act or (ii) as otherwise provided under applicable Foreign Antitrust Laws, it being acknowledged and agreed by the parties hereto that time is of the essence. For purposes of this provision, such Persons shall be deemed to have complied with any such request by providing a response that such Person in good faith believes to be in substantial compliance and by certifying in writing to the other parties its prompt, substantial compliance. In the event that any such Person receives a subpoena or civil investigative demand requesting materials and information similar to that usually demanded in a second request under the HSR Act or any similar inquiry or request under applicable Foreign Antitrust Laws, such Person shall promptly comply (and in the case of Parent cause its Affiliates to promptly comply) with such subpoena or civil investigative demand, it being acknowledged by the parties hereto that time is of the essence. In the event the Governmental Authority disputes the adequacy of compliance by any such Person with respect to a second request under the HSR Act or any similar inquiry or request under applicable Foreign Antitrust Laws, subpoena or civil investigative demand, such party shall endeavor (and in the case of Parent cause its Affiliates to endeavor) to satisfy the Governmental Authority so as to minimize any delay in the conduct or resolution of the investigation. (e) From the date of this Agreement through the ~~date~~ latest to occur of (i) the date of termination of the required waiting periods under the HSR ~~Act and all applicable Foreign Antitrust Laws and~~ Act, (ii) the ~~Required Parent Consents are~~ latest date when any Consent of any other applicable Governmental Authority has been obtained, (iii) the ~~Parent~~ Closing Date, and (iv) the date of the termination of this Agreement pursuant to Article VII, the Buyer and its Affiliates shall not directly or indirectly (A) effect or enter into any discussions or negotiations with respect to any transaction, including entering into any joint venture or acquiring or agreeing to acquire, by merging with or into or consolidating with, or purchasing a substantial portion of the assets of or any equity in, or by any other manner, any assets or Person, or (B) subject to Section 5.05(c), take (or fail to take) any ~~action~~ other action, in the case of either clause (A) or (B), that ~~could~~ would reasonably be expected to ~~hinder~~ delay or ~~delay, as applicable,~~ make more difficult the obtaining of clearance or the expiration or termination of the ~~required~~ waiting periods under the HSR ~~Act and such applicable Foreign Antitrust Laws~~Act, or the obtaining of ~~the Required Parent~~ such Consents from ~~the~~ any applicable Governmental Authorities. (fe) The ~~parties acknowledge and agree that the~~ obligations set forth in this Section 5.05 shall be in addition to, and not in limitation of the generality of, the matters set forth in Section 5.03 and Section 5.04.

Appears in 1 contract

Samples: Asset Purchase Agreement (Redfin Corp)

Antitrust Notifications and Other Regulatory Approvals. (a) Each of the Company, Parent and Merger Sub shall, and ~~Parent~~ shall cause its controlled Affiliates to, cooperate with each other and shall use, and ~~Parent~~ shall cause its ~~Affiliates~~ controlled Affiliates, to use, their respective reasonable best efforts to prepare and file (i) required Notification and Report Forms under the HSR Act ~~and the rules and regulations promulgated thereunder~~ with the FTC and the ~~DOJ,~~ DOJ and (ii) notifications, filings, registrations, submissions and other materials required or necessary under any applicable Foreign Antitrust Law and (iii) notifications, filings, registrations, submissions or other materials required or necessary to obtain those consents of Governmental Authorities listed on Schedule 5.05(a) (the “Required Parent Consents”)Law, in each case, as soon as practicable following the date of this ~~Agreement and~~ Agreement, but in the case of clause (i), no later than ~~the tenth~~ ten (~~10th~~10) Business ~~Day following~~ Days after the date hereof. All filings made in connection with the foregoing sentence shall be made in substantial compliance with the requirements of applicable Antitrust Law, including the HSR Act and applicable Foreign Antitrust Laws, and any other applicable Law. Each of the Company, Parent and Merger Sub shall make, and ~~Parent~~ shall cause its controlled Affiliates to make, such other filings and submissions as are necessary, if any, in other jurisdictions in order to comply with all applicable Antitrust Laws and all other applicable Laws, and shall promptly provide any supplemental information or documentation requested by any Governmental Authority relating thereto. All filing fees payable in connection with the notifications, filings, registrations, submissions or other materials contemplated by this Section 5.05 shall be paid entirely by Parent. Subject to the Confidentiality ~~Agreement~~ Agreements and applicable Laws, the parties to this Agreement shall, and ~~Parent~~ shall cause ~~its~~ their respective controlled Affiliates to, coordinate and cooperate fully and promptly with each other in exchanging such information and providing such assistance as the other parties may reasonably request in connection with the foregoing and in seeking early termination of any applicable waiting periods, including those under the HSR Act and any applicable Foreign Antitrust Law. (b) To the extent not prohibited by applicable Law, each party to this Agreement shall promptly notify and furnish the other parties copies of (i) any filing such party or any of its Affiliates submits to any Governmental Authority and (ii) any material correspondence or communication between it or any of its Affiliates or any of their respective representatives, on the one hand, and any Governmental Authority, on the other hand, in each case relating to the subject matter of this Section 5.05 or the transactions contemplated by this Agreement (and, in the case of any oral communication, a summary of such communication) and shall consult with and permit the other parties to review in advance any proposed filing and any material written or oral communication or correspondence by such party to any Governmental Authority relating to the subject matter of this Section 5.05 or the transactions contemplated by this Agreement, and shall consider in good faith the views of such party in connection with any such proposed filing and any such written or oral communication or correspondence to any Governmental Authority, including the FTC and the DOJ, relating to the subject matter of this Section 5.05 or the transactions contemplated by this Agreement. No party to this Agreement shall agree to, or permit any of its Affiliates or any of its or their respective representatives to, participate in any material meeting or discussion with any Governmental Authority in respect of any filings, investigation, inquiry or any other matter contemplated by this Section 5.05 or any transaction contemplated by this Agreement unless it consults with the other parties in advance and, to the extent permitted by such Governmental Authority, gives the other parties the opportunity to attend and participate in such meeting or discussion. (c) Notwithstanding anything in this Agreement to the contrary, Parent and the Company shall, and ~~Parent~~ shall cause its controlled Affiliates to, use its reasonable best efforts to take any and all actions necessary to obtain any consents, clearances or approvals required under or in connection with the HSR Act, the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the Federal Trade Commission Act, as amended, and any other federal or state law, regulation or decree designed or intended to prohibit, restrict or regulate actions or transactions having the purpose or effect of monopolization, restraint of trade or harm to competition, including any Foreign Antitrust Law (~~collectively~~ collectively, “Antitrust Laws”), and to enable all waiting periods under any Antitrust Law to expire, and to avoid or eliminate each and every impediment under any Antitrust ~~Law asserted by any Governmental Authority~~Law, in each case, to cause the Merger and the other transactions contemplated hereby to occur as promptly as practicable following the date of this Agreement and, in any event, prior to the Termination Date, including (i) promptly complying with or modifying any requests or inquiries for additional information or documentation (including any second request) by any Governmental Authority, (ii) offering, negotiating, committing to and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, license or other disposition of any and all of the capital stock, assets, rights, products or businesses of Parent and its controlled Affiliates and the Company and its Subsidiaries and any other restrictions on the activities of Parent and its controlled Affiliates and the Company and its Subsidiaries and (iii) contesting, defending and appealing any threatened or pending Litigation or preliminary or permanent injunction or other ~~Order or Law~~ Order, in each case, relating to applicable Antitrust Laws that would adversely affect the ability of any party hereto to consummate, or otherwise delay the consummation of, the transactions contemplated hereby and taking any and all other actions to prevent the entry, enactment or promulgation thereof; provided that Parent and its Subsidiaries shall not be required to take any action that would be materially adverse to Parent and its Subsidiaries and the Company and its Subsidiaries taken as a whole. Notwithstanding the foregoing or anything in this Agreement to the contrary, in no event shall the Company or any of its Affiliates be obligated to commit to ~~take~~ any ~~action~~ sale, divestiture, license or disposal of any capital stock, assets, rights, products or businesses or any restrictions on its activities pursuant to this Section 5.05, the consummation or effectiveness of which is not conditioned on the consummation of the Closing, or pay any fee or grant any concession in connection with obtaining any consents, authorizations or approvals required in order to consummate the transactions contemplated hereby. (d) In the event Parent, the Company or any of ~~the Parent’s~~ their respective Affiliates receives a second request under the HSR Act or any similar inquiry or request under applicable Foreign Antitrust Laws in connection with the transactions contemplated by this Agreement, such party shall promptly comply (and ~~in the case of Parent~~ cause its controlled Affiliates to promptly comply) with such request (i) as provided by Section 7A(e) of the HSR Act or (ii) as otherwise provided under applicable Foreign Antitrust Laws, it being acknowledged and agreed by the parties hereto that time is of the essence. For purposes of this provision, such Persons shall be deemed to have complied with any such request by providing a response that such Person in good faith believes to be in substantial compliance and by certifying in writing to the other parties its prompt, substantial compliance. In the event that any such Person receives a subpoena or civil investigative demand requesting materials and information similar to that usually demanded in a second request under the HSR Act or any similar inquiry or request under applicable Foreign Antitrust Laws, such Person shall promptly comply (and ~~in the case of Parent~~ cause its controlled Affiliates to promptly comply) with such subpoena or civil investigative demand, it being acknowledged by the parties hereto that time is of the essence. In the event the Governmental Authority disputes the adequacy of compliance by any such Person with respect to a second request under the HSR Act or any similar inquiry or request under applicable Foreign Antitrust Laws, subpoena or civil investigative demand, such party shall endeavor (and ~~in the case of Parent~~ cause its controlled Affiliates to endeavor) to satisfy the Governmental Authority so as to minimize any delay in the conduct or resolution of the investigation. (e) From the date of this Agreement through the date (i) of termination of the required waiting periods under the HSR Act and all applicable Foreign Antitrust Laws and (ii) ~~the Required Parent~~ any required Consents of any other applicable Governmental Authority are obtained, neither Parent nor the ~~Parent and its~~ Company nor any of their respective Affiliates shall ~~not~~ take any action that could reasonably be expected to hinder or delay, as applicable, the obtaining of clearance or the expiration of the required waiting periods under the HSR Act and such applicable Foreign Antitrust Laws, or the obtaining of ~~the Required Parent~~ such Consents from ~~the~~ any applicable Governmental Authorities. (f) The parties acknowledge and agree that the obligations set forth in this Section 5.05 shall be in addition to, and not in limitation of the generality of, the matters set forth in Section 5.03 and Section 5.04.

Appears in 1 contract

Samples: Merger Agreement (Neiman Marcus Group LTD Inc.)

Antitrust Notifications and Other Regulatory Approvals. (a) Each of the Company, ~~Parent~~ Parent, Merger Sub and Merger Sub ~~shall, and Parent~~ II shall ~~cause its Affiliates to,~~ cooperate with each other and shall ~~use, and Parent shall cause its Affiliates to use,~~ use their respective ~~reasonable~~ best efforts to ~~prepare~~ prepare, file and ~~file~~ not withdraw (i) required Notification and Report Forms under the HSR Act and the rules and regulations promulgated thereunder with the FTC and the DOJ, and (ii~~) notifications, filings, registrations, submissions and other materials required or necessary under any applicable Foreign Antitrust Law and (iii~~) notifications, filings, registrations, submissions or other materials required or necessary to obtain those consents of Governmental Authorities listed on Schedule 5.05(a) (the “Required ~~Parent~~ Consents”), in each case, as soon as practicable following the date of this Agreement and in the case of clause (i), no later than the tenth (10th) Business Day following the date hereof. All filings made in connection with the foregoing sentence shall be made in substantial compliance with the requirements of applicable Antitrust ~~Law~~Laws, including the HSR ~~Act and applicable Foreign Antitrust Laws~~Act. Each of the Company, ~~Parent~~ Parent, Merger Sub, and Merger Sub II shall make, and Parent shall cause its Affiliates to make, such other filings and submissions as are necessary, if any, in other jurisdictions in order to comply with all applicable Antitrust Laws and shall promptly provide any supplemental information or documentation requested by any Governmental Authority relating thereto. ~~All filing~~ Each of Parent and the Company shall bear 50% of all costs, expenses and fees incurred or payable to any other Person in connection with complying with Section 5.05(a)(i), including filing fees under the ~~notifications~~Antitrust Laws, ~~filings~~while all costs, ~~registrations, submissions~~ expenses and fees incurred or payable to any other ~~materials contemplated by this~~ Person in connection with any other Required Consents pursuant to Section ~~5.05~~ 5.05(a)(ii) shall be ~~paid entirely~~ borne by ~~Parent~~the party hereto incurring such cost, fee or expense. Subject to the Confidentiality Agreement and applicable Laws, the parties ~~to this Agreement~~ hereto (other than the Stockholders’ Representative) shall, and Parent shall cause its Affiliates to, coordinate and cooperate fully and promptly with each other in exchanging such information and providing such assistance as the other parties may reasonably request in connection with the foregoing and in seeking early termination of any applicable waiting periods, including those under the ~~HSR Act and any applicable Foreign~~ Antitrust ~~Law~~Laws. (b) To the extent not prohibited by applicable Law, each party ~~to this Agreement~~ hereto (other than the Stockholders’ Representative) shall promptly notify and furnish the other parties ~~copies~~ hereto such necessary information and reasonable assistance as the other party hereto may reasonably request in connection with the preparation of any required governmental filings or submissions and will cooperate in responding to any inquiry from a Governmental Authority, including (i) furnishing the other party copies of any filing such party or any of its Affiliates submits to any Governmental ~~Authority and~~ Authority; (ii) furnishing to the other party copies of any correspondence or communication between it or any of its Affiliates or any of their respective ~~representatives~~Representatives, on the one hand, and any Governmental Authority, on the other hand, in each case relating to the subject matter of this Section 5.05 or the transactions contemplated by this Agreement (and, in the case of any oral communication, a summary of such communication) and shall consult with and permit the other parties to review in advance any proposed filing and any written or oral communication or correspondence by such party to any Governmental Authority relating to the subject matter of this Section 5.05 or the transactions contemplated by this Agreement, and shall consider in good faith the views of such party in connection with any proposed filing and any written or oral communication or correspondence to any Governmental Authority, including the FTC and the DOJ, relating to the subject matter of this Section 5.05 or the transactions contemplated by this Agreement; and (iii) giving the other party the opportunity to attend and participate in any substantive meetings or discussions with any Governmental Authority, to the extent not prohibited by such Governmental Authority; provided, however, that to the extent any of the documents or information provided pursuant to this Section 5.05 are commercially or competitively sensitive, the Company, Parent, Merger Sub, or Merger Sub II, as the case may be, may satisfy its obligations by providing such documents or information to the other party’s outside counsel, with the understanding and agreement that such counsel shall not share such documents and information with its client; provided, further, that materials may also be redacted (x) to remove references concerning the valuation of the Company, (y) as necessary to comply with contractual arrangements, and (z) as necessary to address reasonable attorney-client or other privilege or confidentiality concerns, to the extent that that such attorney-client or other privilege or confidentiality concerns are not governed by a common interest privilege or doctrine. No party ~~to this Agreement~~ hereto shall agree to, or permit any of its Affiliates or any of its or their respective ~~representatives~~ Representatives to, participate in any meeting or discussion with any Governmental Authority in respect of any filings, investigation, inquiry or any other matter contemplated by this Section 5.05 or any transaction contemplated by this Agreement unless it consults with the other parties in advance and, to the extent permitted by such Governmental Authority, gives the other parties the opportunity to attend and participate in such meeting or discussion. (c) Notwithstanding anything in this Agreement to the contrary, Parent and the Company ~~shall, and Parent~~ shall ~~cause its Affiliates to, take any and all actions necessary~~ use their reasonable best efforts to obtain any consents, clearances or approvals required under or in connection with the HSR Act, the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the Federal Trade Commission Act, as amended, and any other ~~federal~~ applicable antitrust or ~~state~~ competition law, regulation or decree designed or intended to prohibit, restrict or regulate actions or transactions having the purpose or effect of monopolization, restraint of trade or harm to ~~competition~~competition (collectively, ~~including any Foreign Antitrust Law (collectively~~ the “Antitrust Laws”), and to enable all waiting periods under any Antitrust Law to expire, and to avoid or eliminate each and every impediment under any Antitrust Law asserted by any Governmental Authority, in each case, to cause the ~~Merger~~ Mergers and the other transactions contemplated hereby to occur as promptly as practicable following the date of this Agreement and, in any event, prior to the Termination ~~Date~~Date (as it may be extended pursuant to Section 8.01(b)). Further, ~~including~~ and for the avoidance of doubt, Parent will use its reasonable best efforts to ensure that (ix) ~~promptly complying with~~ no requirement for any non-action by, or ~~modifying any requests~~ consent or ~~inquiries for additional information or documentation (including any second request) by~~ approval of, any Governmental ~~Authority~~Authority with respect to any Antitrust Laws, (iiy) ~~offering, negotiating, committing to and effecting, by consent~~ no decree, ~~hold separate order~~ judgment, injunction, temporary restraining Order or ~~otherwise~~any other Order in any Legal Proceeding with respect to any Antitrust Laws, and (z) no other matter relating to any Antitrust Laws would preclude consummation of the Mergers by the Termination Date; provided, that Parent, the ~~sale, divestiture, license or other disposition of any and all of the capital stock, assets, rights, products or businesses of Parent and its Affiliates and the~~ Company and its Subsidiaries and any other restrictions on the activities of Parent and its Affiliates and the Company and its Subsidiaries and (iii) contesting, defending and appealing any threatened or pending Litigation or preliminary or permanent injunction or other Order or Law that would adversely affect the ability of any party hereto to consummate, or otherwise delay the consummation of, the transactions contemplated hereby and taking any and all other actions to prevent the entry, enactment or promulgation thereof; provided that Parent and its and/or their respective Subsidiaries shall not be required to take ~~any action that would be materially adverse to Parent and its Subsidiaries and the Company and its Subsidiaries taken as a whole. Notwithstanding the foregoing~~ or ~~anything in this Agreement to the contrary, in no event shall the Company or any of its Affiliates be obligated to commit~~ agree to take any action ~~pursuant~~ to ~~this Section 5.05~~consummate a sale, ~~the consummation of which is not conditioned on the consummation of the Closing~~divestiture or disposition of, or ~~pay~~ hold separate (through the establishment of a trust or otherwise), any ~~fee~~ assets, properties or ~~grant any concession in connection with obtaining any consents, authorizations or approvals required in order to consummate the transactions contemplated hereby. (d) In the event~~ businesses of Parent, the Company or any of the Parent’s Affiliates receives a second request under the HSR Act or any similar inquiry or request under applicable Foreign Antitrust Laws in connection with the transactions contemplated by this Agreement, such party shall promptly comply (and in the case of Parent cause its Affiliates to promptly comply) with such request (i) as provided by Section 7A(e) of the HSR Act or (ii) as otherwise provided under applicable Foreign Antitrust Laws, it being acknowledged and agreed by the parties hereto that time is of the essencetheir respective Subsidiaries. For purposes of this provision, such Persons shall be deemed to have complied with any such request by providing a response that such Person in good faith believes to be in substantial compliance and by certifying in writing Notwithstanding anything to the ~~other parties its prompt~~contrary, ~~substantial compliance. In the event that~~ nothing in this Section 5.05 or elsewhere in this Agreement shall require Parent to take or agree to take any such Person receives a subpoena or civil investigative demand requesting materials and information similar to that usually demanded in a second request under the HSR Act or any similar inquiry or request under applicable Foreign Antitrust Laws, such Person shall promptly comply (and in the case of Parent cause its Affiliates to promptly comply) with such subpoena or civil investigative demand, it being acknowledged by the parties hereto that time is of the essence. In the event the Governmental Authority disputes the adequacy of compliance by any such Person action with respect to ~~a second request under the HSR Act~~ Parent or any ~~similar inquiry or request under applicable Foreign Antitrust Laws, subpoena or civil investigative demand, such party shall endeavor (and in the case~~ of ~~Parent cause~~ its Affiliates (including, after the Closing, the Surviving Entity), including selling, divesting, conveying, holding separate, or otherwise limiting its freedom of action with respect to ~~endeavor) to satisfy~~ any assets, rights, products, licenses, businesses, operations, or interest therein, of any such Affiliates (including, after the ~~Governmental Authority so as to minimize any delay in~~ Closing, the ~~conduct or resolution of the investigation~~Company and its Subsidiaries). (ed) From the date ~~of this Agreement~~ hereof through the date (i) of termination of the required waiting periods under the ~~HSR Act and all applicable Foreign~~ Antitrust Laws and (ii) on which the Required ~~Parent~~ Consents are obtained, ~~the Parent and its Affiliates~~ no party hereto shall ~~not~~ knowingly take any action that ~~could~~ would reasonably be expected to hinder or delay, as applicable, the obtaining of clearance or the expiration of the required waiting periods under the ~~HSR Act and such applicable Foreign~~ Antitrust Laws, or the obtaining of the Required ~~Parent~~ Consents from the applicable Governmental Authorities. (fe) The parties hereto acknowledge and agree that the obligations set forth in this Section 5.05 shall be in addition to, and not in limitation of the generality of, the matters set forth in Section 5.03 and Section 5.04.

Appears in 1 contract

Samples: Agreement and Plan of Merger and Reorganization (SoFi Technologies, Inc.)

Common use of Antitrust Notifications and Other Regulatory Approvals Clause in Contracts