Appropriate Action; Consents; Filings. (a) OTE and TetriDyn shall use, and shall cause each of their respective subsidiaries to use, all reasonable efforts to: (i) take, or cause to be taken, all appropriate action, and do, or cause to be done, all things necessary, proper, or advisable under applicable Laws or otherwise to consummate and make effective the transactions contemplated by this Agreement; (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, or orders required to be obtained or made by OTE or TetriDyn or any subsidiary in connection with the authorization, execution, and delivery of this Agreement and the consummation of the transactions contemplated hereby, including the Merger; (iii) make all necessary filings, and thereafter make any other required submissions, respecting this Agreement and the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement. (b) OTE and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect. (i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable to consummate the transactions contemplated by this Agreement; (2) otherwise required under any contracts, licenses, leases, or other agreements in connection with the consummation of the transactions contemplated hereby; or (3) required to prevent a material adverse effect affecting either of their respective business and operations from occurring prior to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Time. (ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c). (iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consent. (d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matter.
Appears in 4 contracts
Samples: Merger Agreement (Tetridyn Solutions Inc), Merger Agreement (Ocean Thermal Energy Corp), Merger Agreement (Ocean Thermal Energy Corp)
Appropriate Action; Consents; Filings. (a) OTE Upon the terms and TetriDyn subject to the conditions set forth in this Agreement, the Company and each of the Parent Parties shall use, and shall cause each of their respective subsidiaries the other Company Entities and the other Parent Entities, respectively, to use, all use its reasonable best efforts to: (i) to take, or cause to be taken, all appropriate actionactions, and to do, or cause to be done, and to assist and cooperate with the other party in doing, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise pursuant to any contract or agreement to consummate and make effective effective, as promptly as practicable, the transactions contemplated by this Agreement; (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, or orders required to be obtained or made by OTE or TetriDyn or any subsidiary in connection with the authorization, execution, and delivery of this Agreement Merger and the consummation of the transactions contemplated hereby, including the Merger; (iii) make all necessary filings, and thereafter make any other required submissions, respecting this Agreement and the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing (i) the taking of all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree actions necessary to take all actions, including cause the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition conditions to Closing not set forth in Article VII to be satisfied; provided, however(ii) the obtaining of all necessary actions or nonactions, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effectwaivers, consents and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable to consummate the transactions contemplated by this Agreement; (2) otherwise required under any contracts, licenses, leases, approvals from Governmental Authorities or other agreements Persons necessary in connection with the consummation of the Merger and the other transactions contemplated hereby; or by this Agreement and the making of all necessary registrations and filings (3including filings with Governmental Authorities, if any) required to prevent a material adverse effect affecting either and the taking of their respective business and operations from occurring prior to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts steps as may be necessary to obtain release an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authority or other Persons necessary in connection with the consummation of the Merger and the other transactions contemplated by this Agreement (including promptly responding to all requests by a Governmental Authority or other Person for additional information in support of any guarantees by any owner of TetriDyn of any third-party indebtedness such filing or obligation that will not be paidrequest for approval or waiver), discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the threat consummation of the Merger or the other transactions contemplated by this Agreement, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed, the avoidance of each and every impediment under any antitrust, merger control, competition or trade regulation Law that may be asserted by any Governmental Authority with respect to the Merger so as to enable the Closing to occur as soon as reasonably possible, and (iv) the execution and delivery of any additional instruments necessary to consummate the Merger and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement.
(b) In connection with and without limiting the foregoing, each of the Parent Parties and the Company shall give (or shall cause the other Parent Entities or the other Company Entities, respectively, to give) any notices to Third Parties, and each of the Parent Parties and the Company shall use, and cause each of their respective Affiliates to use, its reasonable best efforts to obtain any Third Party consents not covered by Section 6.6(a) that are necessary, proper or advisable to consummate the Merger. Each of the parties hereto will furnish to the other such necessary information and reasonable assistance as the other may 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 promptly informing the other parties of such inquiry, consulting in advance before making any presentations or submissions to a Governmental Authority, and supplying each other with copies of all material litigation involving it correspondence, filings or communications between either party and any Governmental Authority with respect to this Agreement. To the extent reasonably practicable, the parties or their Representatives shall have the right to review in advance and each of the parties will consult the others on, all the information relating to the other and each of their Affiliates that appears in any filing made with, or written materials submitted to, any Governmental Authority in connection with the Merger and the other transactions contemplated by this Agreement, except that confidential competitively sensitive business information may be redacted from such exchanges. To the extent reasonably practicable, none of the parties hereto shall, nor shall they permit their respective Representatives to, participate independently in any meeting or engage in any substantive conversation with any Governmental Authority in respect of any filing, investigation or other inquiry without giving the other party prior notice of such meeting or conversation and, to the extent permitted by applicable Law, without giving the other parties the opportunity to attend or participate (whether by telephone or in person) in any such meeting with such Governmental Authority. Notwithstanding the foregoing, obtaining any approval or consent from any Third Party pursuant to this Section 6.6(b) shall not be a condition to the obligations of Parent and Merger Sub to consummate the Merger.
(c) Notwithstanding anything to the contrary in this Agreement, in connection with obtaining any approval or consent from any Person (other than any Governmental Authority) with respect to the Merger, none of the parties hereto, any of the other Company Entities or any of its subsidiaries; the other Parent Entities, or (iv) any event or condition that might reasonably be expected to cause any of its representationsthe their respective Representatives, warranties, covenants, shall be obligated to pay or agreements set forth herein not commit to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means pay to such Person whose approval or consent is being solicited any case, arbitration, or adversary proceeding cash or other matter consideration, make any accommodation or commitment or incur any liability or other obligation to such Person (unless expressly required by a written agreement that is material was entered into prior to the business and operations of the subject entity, if in existence on the date hereof, hereof with such Person). The parties shall cooperate with respect to accommodations that may be requested or for which the legal fees and other costs appropriate to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matterobtain such consents.
Appears in 4 contracts
Samples: Merger Agreement (Griffin Capital Essential Asset REIT, Inc.), Merger Agreement (Signature Office Reit Inc), Merger Agreement (Griffin Capital Essential Asset REIT, Inc.)
Appropriate Action; Consents; Filings. (a) OTE Parent and TetriDyn the Company shall use, (and shall cause each of their respective subsidiaries to use, all affiliates to) use commercially reasonable efforts to: to (i) take, or consummate the Transactions and cause the conditions set forth in Article VI to be takensatisfied, all appropriate action, and do, or cause to be done, all things necessary, proper, or advisable under applicable Laws or otherwise to consummate and make effective the transactions contemplated by this Agreement; (ii) promptly obtain from any Governmental Entities any all actions or nonactions, consents, licensesclearances, permitsPermits (including Environmental Permits), waivers, approvals, authorizations, or orders required to be obtained or made by OTE or TetriDyn or any subsidiary in connection with the authorization, execution, authorizations and delivery of this Agreement and the consummation of the transactions contemplated hereby, including the Merger; (iii) make all Orders from Governmental Entities necessary filings, and thereafter make any other required submissions, respecting this Agreement and the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable to consummate the transactions contemplated by this Agreement; (2) otherwise required under any contracts, licenses, leases, or other agreements in connection with the consummation of the transactions contemplated hereby; Transactions, (iii) as promptly as practicable after the date of this Agreement, make all registrations, notifications and filings with any Governmental Entity necessary or advisable in connection with the consummation of the Transactions, including filings required under Antitrust Laws, and promptly make any further submissions that are necessary or advisable, (3iv) seek to resolve any objection or assertion by any Governmental Entity challenging this Agreement or the Transactions and (v) execute and deliver any additional instruments necessary or advisable to consummate the Transactions. Parent, the Company and their respective affiliates shall not be required to prevent a material adverse effect affecting either make any concessions under this Section 5.07 that are not conditioned upon the Closing. Parent and the Company shall each be responsible for the payment of their respective business and operations from occurring prior one-half of the filing fees applicable to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective TimeTransactions pursuant to any Antitrust Law.
(b) Notwithstanding anything contained in this Agreement to the contrary, in no event shall Parent or its affiliates be required to (and the Company shall not, and shall cause its affiliates not to, without Parent’s prior written consent) offer, propose, negotiate, agree to, consent to or effect (i) any operational restrictions or limitations, (ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts any sale, license, disposition or holding separate of assets or businesses or (iii) any other remedy, condition, commitment or undertaking of any kind, in each case, in order to obtain release actions or nonactions, consents, clearances, Permits, waivers, approvals, authorizations or Orders of any guarantees by any owner of TetriDyn of any third-party indebtedness Governmental Entities or obligation that will not be paid, dischargedto avoid the entry of, or otherwise satisfied at to effect the Effective Timedissolution of or vacate or lift, excluding any Orders that would prevent or delay the obligations to SICOG and EIDC as set forth in subsection 5.12(c)consummation of the Transactions.
(iiic) In the event that any Party shall fail to obtain any third-Each party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify the other ofhereto shall: (i) give the other parties prompt notice of the making or commencement of any material change in its current or future businessrequest, assetsinquiry, liabilities, financial conditioninvestigation, or results of operationsProceeding by or before any Governmental Entity with respect to the Transactions; (ii) keep the other parties informed as to the status of any complaintssuch request, investigationsinquiry, investigation, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated herebyProceeding; and (iii) promptly inform the institution other parties of any communication to or from any Governmental Entity regarding the threat Transactions. Each party hereto will consult and cooperate with the other parties, and will consider in good faith the views of material litigation involving it or the other parties, in connection with any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representationsfiling, warrantiesanalysis, covenantsappearance, presentation, memorandum, brief, argument, or agreements set forth herein not opinion made or submitted to any Governmental Entity in connection with the Transactions. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation, action or Proceeding, each party hereto will permit authorized representatives of the other parties to be true present at each meeting or conference relating to such request, inquiry, investigation, action or Proceeding and correct at to have access to and be consulted in connection with, and to the Effective Timeextent practicable, provided the opportunity to review in advance, any document or opinion made or submitted to any Governmental Entity in connection with such request, inquiry, investigation or Proceeding. As used Notwithstanding anything to the contrary in the preceding sentencethis Section 5.07, “material litigation” means any case, arbitration, or adversary proceeding or other matter no party hereto shall be in violation of this Agreement by virtue of providing information that is material competitively sensitive to the business and operations of the subject entity, if in existence one another on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matteran “outside counsel only” basis.
Appears in 4 contracts
Samples: Merger Agreement (Pc Tel Inc), Merger Agreement (Pc Tel Inc), Merger Agreement (Pc Tel Inc)
Appropriate Action; Consents; Filings. (a) OTE Upon the terms and TetriDyn subject to the conditions set forth in this Agreement, CCI shall use, and shall cause each CCI Subsidiary and each of their respective subsidiaries Affiliates to, and CMR shall and shall cause each CMR Subsidiary and each of their respective Affiliates to, use its reasonable best efforts to use, all reasonable efforts to: (i) take, or cause to be taken, all appropriate actionactions, and to do, or cause to be done, and to assist and cooperate with the other Parties in doing, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise pursuant to any Contract to consummate and make effective effective, as promptly as practicable, the transactions contemplated by this Agreement; (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, or orders required to be obtained or made by OTE or TetriDyn or any subsidiary in connection with the authorization, execution, and delivery of this Agreement Merger and the consummation of the transactions contemplated hereby, including the Merger; (iii) make all necessary filings, and thereafter make any other required submissions, respecting this Agreement and the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing (i) taking all available avenues of administrative actions necessary to cause the conditions to Closing set forth in Article 8 to be satisfied, (ii) preparing and judicial appeal filing any applications, notices, registrations and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or requests as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not advisable to be satisfied; provided, however, that filed with or submitted to any Governmental Authority in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable order to consummate the transactions contemplated by this Agreement; , (2iii) otherwise required under any contractsobtaining all necessary or advisable actions or nonactions, licenseswaivers, leases, consents and approvals from Governmental Authorities or other agreements Persons necessary in connection with the consummation of the Merger and the other transactions contemplated herebyby this Agreement and the making of all necessary or advisable registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary or advisable to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authority or other Persons necessary in connection with the consummation of the Merger and the other transactions contemplated by this Agreement, (iv) subject to Section 7.6(c), defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger or the other transactions contemplated by this Agreement, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed, the avoidance of each and every impediment under any antitrust, merger control, competition or trade regulation Law that may be asserted by any Governmental Authority with respect to the Merger so as to enable the Closing to occur as soon as reasonably possible, and (v) executing and delivering any additional instruments reasonably necessary or advisable to consummate the Merger and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement; provided, that, notwithstanding anything to the contrary in this Agreement, no Party will have any obligation (A) to propose, negotiate, commit to or effect, by consent decree, hold separate order or otherwise, the sale, divestiture or other disposition of any assets or businesses of such Party, any of its subsidiaries or their Affiliates or (3B) required otherwise to prevent a material adverse effect affecting either take or commit to take any actions that would limit the freedom of such Party, its subsidiaries (including subsidiaries of CCI after the Closing) or their Affiliates with respect to, or their ability to retain, one or more of their businesses, product lines or assets.
(b) In connection with and without limiting the foregoing Section 7.5(a), each of the Parties shall give (or shall cause their respective Affiliates to give) any notices to third parties, and each of the Parties shall use, and cause each of their respective business and operations from occurring prior Affiliates to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all use, its reasonable best efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) aboveconsents that are necessary, such Party shall use all reasonable effortsproper or advisable to consummate the Merger and the other transactions contemplated by this Agreement. Each of the Parties will, and shall take cause their respective Affiliates to, furnish to the other Parties such necessary information and reasonable assistance as the other Parties may request in connection with the preparation of any required applications, notices, registrations and requests as may be required or advisable to be filed with any Governmental Authority and will cooperate in responding to any inquiry from a Governmental Authority, including promptly informing the other Party of such inquiry, consulting in advance before making any presentations or submissions to a Governmental Authority, and supplying each other with copies of all material correspondence, filings or communications between such Party and any Governmental Authority with respect to this Agreement. To the extent reasonably practicable, the Parties or their Representatives shall have the right to review in advance and each of the Parties will consult the other Parties on, all the information relating to the other Parties and each of their Affiliates that appears in any filing made with, or written materials submitted to, any Governmental Authority in connection with the Merger and the other transactions contemplated by this Agreement, except that confidential competitively sensitive business information may be redacted from such exchanges. To the extent reasonably practicable, no Party shall, nor shall any Party permit its respective Representatives to, participate independently in any meeting or engage in any substantive conversation with any Governmental Authority in respect of any filing, investigation or other inquiry without giving the other Parties prior notice of such meeting or conversation and, to the extent permitted by applicable Law, without giving the other Parties the opportunity to attend or participate (whether by telephone or in person) in any such actions reasonably requested meeting with such Governmental Authority.
(c) Notwithstanding anything to the contrary in this Agreement, in connection with obtaining any approval or consent from any Person (other than any Governmental Authority) with respect to the Merger and the other transactions contemplated by this Agreement, none of the Parties or any of their respective Representatives shall be obligated to pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Person other than commercially reasonable processing and consent fees and any other Partyexpenses required to be paid in connection with obtaining the consent or approval of any lender with respect to any Indebtedness set forth on Section 4.3(a)(iii) of the CMR Disclosure Letter and Section 5.3(a)(iii) of the CCI Disclosure Letter. Subject to the immediately foregoing sentence, the Parties shall cooperate with respect to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting reasonable accommodations that may be requested or that could reasonably be expected to result after the Effective Time, from the failure appropriate to obtain such consentconsents.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matter.
Appears in 4 contracts
Samples: Merger Agreement (Cottonwood Communities, Inc.), Merger Agreement (Cottonwood Communities, Inc.), Merger Agreement (Cottonwood Multifamily Reit Ii, Inc.)
Appropriate Action; Consents; Filings. The Company and Associated shall use all commercially reasonable efforts to (a) OTE and TetriDyn shall use, and shall cause each of their respective subsidiaries to use, all reasonable efforts to: (i) take, or cause to be taken, all appropriate action, and do, or cause to be done, all things necessary, proper, or advisable under applicable Laws or otherwise Law to consummate and make effective the transactions contemplated by this Agreement; (iib) obtain from any Governmental Entities any all consents, licenses, permits, waivers, approvals, authorizations, or orders required under Law (including, without limitation, all foreign and domestic (federal, state, and local) governmental and regulatory rulings and approvals and parties to be obtained or made by OTE or TetriDyn or any subsidiary contracts) in connection with the authorization, execution, and delivery of this Agreement and the consummation by them of the transactions contemplated herebyhereby and thereby, including including, without limitation, the Merger; and (iiic) make all necessary filings, and thereafter make any other required submissions, respecting with respect to this Agreement and the Merger required under: under (1i) the Securities Act and the Exchange Act, Act and the rules and regulations thereunder, and any other applicable federal or state securities Laws; laws, (ii) any applicable federal or state banking laws, and (2iii) any other applicable Law; provided thatprovided, OTE that Associated and TetriDyn the Company shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party non-filing party and its advisers advisors prior to such filings filing and, if requested, shall to accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE The Company and TetriDyn Associated shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law (including all information required to be included in the Proxy Statement/Prospectus and the Registration Statement) in connection with the transactions contemplated by this Agreement.
(b) OTE and TetriDyn agree . In case at any time after the Effective Time any further action is necessary or desirable to cooperate respecting, to cause each carry out the purposes of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues the proper officers and directors of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree each party to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event this Agreement shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable take all such necessary action. Subject to consummate the transactions contemplated by this Agreement; (2) otherwise required under any contracts, licenses, leases, or other agreements in connection with the consummation satisfaction of the transactions contemplated hereby; or (3) required to prevent a material adverse effect affecting either of their respective business conditions in Section 7.01 and operations from occurring prior to Section 7.03, the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall Company will use and cause their respective subsidiaries to use all commercially reasonable efforts to obtain release cause each executive officer of any guarantees by any owner the Company listed on Exhibit 7.02(i), as of TetriDyn the date of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding to execute and deliver to Associated each of the obligations to SICOG and EIDC Executive Agreements (as defined in Section 7.02(i)) in accordance with the terms set forth on Exhibit 7.02(i). Subject to the satisfaction of the other conditions in subsection 5.12(c).
(iii) In Section 7.01 and Section 7.02, Associated will execute, as of the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after date of the Effective Time, from and deliver to the failure applicable executive officers of the Company listed on Exhibit 7.02(i) each of the Executive Agreements applicable to obtain such consent.
(d) OTE and TetriDyn shall promptly notify executive officer in accordance with the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements terms set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matterExhibit 7.02(i).
Appears in 4 contracts
Samples: Merger Agreement (State Financial Services Corp), Merger Agreement (Associated Banc-Corp), Merger Agreement (State Financial Services Corp)
Appropriate Action; Consents; Filings. (a) OTE Upon the terms and TetriDyn subject to the conditions set forth in this Agreement, CCI shall use, and shall cause each CCI Subsidiary and each of their respective subsidiaries Affiliates to, and CMOF shall and shall cause each CMOF Subsidiary and each of their respective Affiliates to, use its reasonable best efforts to use, all reasonable efforts to: (i) take, or cause to be taken, all appropriate actionactions, and to do, or cause to be done, and to assist and cooperate with the other Parties in doing, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise pursuant to any Contract to consummate and make effective effective, as promptly as practicable, the transactions contemplated by this Agreement; (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, or orders required to be obtained or made by OTE or TetriDyn or any subsidiary in connection with the authorization, execution, and delivery of this Agreement Mergers and the consummation of the transactions contemplated hereby, including the Merger; (iii) make all necessary filings, and thereafter make any other required submissions, respecting this Agreement and the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing (i) taking all available avenues of administrative actions necessary to cause the conditions to Closing set forth in Article 8 to be satisfied, (ii) preparing and judicial appeal filing any applications, notices, registrations and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or requests as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not advisable to be satisfied; provided, however, that filed with or submitted to any Governmental Authority in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable order to consummate the transactions contemplated by this Agreement; , (2iii) otherwise required under any contractsobtaining all necessary or advisable actions or nonactions, licenseswaivers, leases, consents and approvals from Governmental Authorities or other agreements Persons necessary in connection with the consummation of the Mergers and the other transactions contemplated herebyby this Agreement and the making of all necessary or advisable registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary or advisable to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authority or other Persons necessary in connection with the consummation of the Mergers and the other transactions contemplated by this Agreement, (iv) subject to Section 7.6(c), defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers or the other transactions contemplated by this Agreement, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed, the avoidance of each and every impediment under any antitrust, merger control, competition or trade regulation Law that may be asserted by any Governmental Authority with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible, and (v) executing and delivering any additional instruments reasonably necessary or advisable to consummate the Mergers and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement; provided, that, notwithstanding anything to the contrary in this Agreement, no Party will have any obligation (A) to propose, negotiate, commit to or effect, by consent decree, hold separate order or otherwise, the sale, divestiture or other disposition of any assets or businesses of such Party, any of its subsidiaries or their Affiliates or (3B) required otherwise to prevent a material adverse effect affecting either take or commit to take any actions that would limit the freedom of such Party, its subsidiaries (including subsidiaries of CCI after the Closing) or their Affiliates with respect to, or their ability to retain, one or more of their businesses, product lines or assets.
(b) In connection with and without limiting the foregoing Section 7.5(a), each of the Parties shall give (or shall cause their respective Affiliates to give) any notices to third parties, and each of the Parties shall use, and cause each of their respective business and operations from occurring prior Affiliates to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all use, its reasonable best efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) aboveconsents that are necessary, such Party shall use all reasonable effortsproper or advisable to consummate the Mergers and the other transactions contemplated by this Agreement. Each of the Parties will, and shall take cause their respective Affiliates to, furnish to the other Parties such necessary information and reasonable assistance as the other Parties may request in connection with the preparation of any required applications, notices, registrations and requests as may be required or advisable to be filed with any Governmental Authority and will cooperate in responding to any inquiry from a Governmental Authority, including promptly informing the other Party of such inquiry, consulting in advance before making any presentations or submissions to a Governmental Authority, and supplying each other with copies of all material correspondence, filings or communications between such Party and any Governmental Authority with respect to this Agreement. To the extent reasonably practicable, the Parties or their Representatives shall have the right to review in advance and each of the Parties will consult the other Parties on, all the information relating to the other Parties and each of their Affiliates that appears in any filing made with, or written materials submitted to, any Governmental Authority in connection with the Mergers and the other transactions contemplated by this Agreement, except that confidential competitively sensitive business information may be redacted from such exchanges. To the extent reasonably practicable, no Party shall, nor shall any Party permit its respective Representatives to, participate independently in any meeting or engage in any substantive conversation with any Governmental Authority in respect of any filing, investigation or other inquiry without giving the other Parties prior notice of such meeting or conversation and, to the extent permitted by applicable Law, without giving the other Parties the opportunity to attend or participate (whether by telephone or in person) in any such actions reasonably requested meeting with such Governmental Authority.
(c) Notwithstanding anything to the contrary in this Agreement, in connection with obtaining any approval or consent from any Person (other than any Governmental Authority) with respect to the Mergers and the other transactions contemplated by this Agreement, none of the Parties or any of their respective Representatives shall be obligated to pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Person other than commercially reasonable processing and consent fees and any other Partyexpenses required to be paid in connection with obtaining the consent or approval of any lender with respect to any Indebtedness set forth on Section 4.3(a)(iii) of the CMOF Disclosure Letter. Subject to the immediately foregoing sentence, the Parties shall cooperate with respect to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting reasonable accommodations that may be requested or that could reasonably be expected to result after the Effective Time, from the failure appropriate to obtain such consentconsents.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matter.
Appears in 3 contracts
Samples: Merger Agreement (Cottonwood Communities, Inc.), Merger Agreement (Cottonwood Multifamily Opportunity Fund, Inc.), Merger Agreement (Cottonwood Communities, Inc.)
Appropriate Action; Consents; Filings. (a) OTE Upon the terms and TetriDyn shall usesubject to the conditions set forth in this Agreement, and shall cause each of their respective subsidiaries the parties agrees to use, all use its reasonable best efforts to: (i) to take, or cause to be taken, all appropriate action, and do, or cause to be done, all things actions that are necessary, proper, proper or advisable under this Agreement, the Real Estate Purchase Agreement and applicable Laws or otherwise Law to consummate and make effective the transactions contemplated by this Agreement; (ii) Transactions as promptly as practicable, including using reasonable best efforts to obtain from any Governmental Entities any consents, licenses, permitsthe Real Estate Purchase Required Consents and all necessary actions or non-actions, waivers, consents, approvals, authorizationsorders and authorizations from Governmental Entities (including, or orders required to be obtained or made by OTE or TetriDyn or any subsidiary without limitation, those in connection with the authorizationHSR Act and applicable Gaming Laws). Notwithstanding anything in this Agreement to the contrary, executionin no event shall the Acquirors, Merger Sub or any of their respective Affiliates be obligated to take any action, including entering into any consent decree, hold separate order or other arrangement, that (i) requires the sale, divestiture, licensing or disposition of any material assets or businesses of the Acquirors, the Surviving Corporation, the Company or any of their Subsidiaries, (ii) materially limits the conduct of the Acquirors or their Affiliates (including, after the Closing, the Surviving Corporation and delivery the Company and its Subsidiaries) or the Acquirors’ freedom of action with respect to, or its ability to retain, the Company and the Company’s Subsidiaries or any portion thereof or any of the Acquirors’ or their Affiliates’ other assets or businesses, or (iii) would be expected to have an adverse impact in any material respect on the Acquirors, their Affiliates and their Subsidiaries’ respective businesses, or the businesses to be acquired by the Acquirors pursuant to this Agreement and the consummation Real Estate Purchase Agreement, taken as a whole. For the avoidance of doubt, the parties agree that any action, including entering into any consent decree, hold separate order or other arrangement, that would require either Acquiror to divest or hold separate, or agree to divest or hold separate, any casino owned by such Acquiror or by the Company or any of its Subsidiaries as of the transactions contemplated herebydate of this Agreement shall be considered “material” for the purposes of the preceding sentence. With regard to any Governmental Entity, including the Merger; (iii) make Company shall not, without the Acquirors’ written consent, which may be withheld by the Acquirors in their sole discretion, take, or commit to take, any action inconsistent with the limitations set forth in the preceding sentence. Nothing in this Agreement shall require any party to take or agree to take any action with respect to its business or operations in connection with obtaining all necessary filingsactions or non-actions, waivers, consents, approvals, orders and thereafter make any other required submissionsauthorizations from Governmental Entities (including, respecting this Agreement and the Merger required under: (1) the Securities Act and the Exchange Actwithout limitation, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other those in connection with the making HSR Act and applicable Gaming Laws), unless the effectiveness of such agreement or action is conditioned upon the Closing. Notwithstanding anything to the contrary in this Agreement, Gamma shall have no obligation to take any action or refrain from taking any action pursuant to this Section 6.5(a) if it obtains a legal opinion from a nationally recognized law firm that such action or inaction would be reasonably likely to materially impair Gamma or its direct or indirect owner from continuing to be treated as a real estate investment trust under the Code; provided, however, that Gamma may not be compelled to take any action or refrain from taking any action under any other provision of this Agreement to the extent that Gamma is excused from taking such action or refraining from taking such action by this sentence and; provided, further that Gamma will not be deemed to be in breach of this Agreement solely due to its failure to take or refrain from taking such action. For the avoidance of doubt, nothing in this Section 6.5(a) shall be deemed to limit any obligation the Acquirors may have to pay the Reverse Termination Fee pursuant to Section 8.3(b).
(b) Each of the parties hereto shall furnish to each other party such necessary information and reasonable assistance as such other party may reasonably request in connection with the foregoing. Subject to applicable Law relating to the exchange of information, outside counsel for the Company and the Acquirors shall have the right to review in advance, and to the extent practicable each shall consult with the other in connection with, all of the information relating to the Company or either Acquiror, as the case may be, and any of their respective Subsidiaries, that appears in any filing made with, or written materials submitted to, any Third Party and/or any Governmental Entity in connection with the Transactions; provided, that the foregoing shall not apply to applications made with respect to Gaming Approvals that include personal identifying information or other similarly sensitive information (as reasonably determined by such filingsparty in good faith). In exercising the foregoing rights, each of the Company and the Acquirors shall act reasonably and as promptly as practicable. Subject to applicable Law and the instructions of any Governmental Entity, the Company and the Acquirors shall keep each other reasonably apprised of the status of matters relating to the completion of the Transactions, including providing promptly furnishing each such other party with copies of all notices or other written substantive communications received by such documents party or any of their respective Subsidiaries, from any Governmental Entity and/or Third Party with respect to such transactions, and, to the extent practicable under the circumstances, shall provide the other Party party and its advisers prior counsel with the opportunity to such filings andparticipate in any meeting with any Governmental Entity in respect of any substantive filing, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application investigation or other filing to be made pursuant to the rules and regulations of any applicable Law inquiry in connection with the transactions contemplated by this Agreementhereby.
(bc) OTE In furtherance and TetriDyn agree not in limitation of the foregoing, each of the Company and the Acquirors shall, and shall cause their respective Affiliates to, make or cause to cooperate respectingbe made (i) all required HSR Act notifications within ten (10) Business Days after the date of this Agreement, to cause each of their respective subsidiaries to cooperate respectingthe extent required, and (ii) all applications and supporting documentation necessary to use obtain all Requisite Gaming Approvals as promptly as practicable, using reasonable best efforts vigorously to contest and resist any action, including legislative, administrative, file no later than thirty (30) days from the date of this Agreement. If the Company or judicial action, and to have vacated, lifted, reversed, either Acquiror receives a request for information or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of documentary material from any Governmental Entity that is with respect to the Transactions (including, but not limited to, such requests with respect to the HSR Act or Gaming Authorities), then such party shall in effect and that restricts, preventsgood faith make, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; providedmade, however, that in no event shall OTE be required to take any action that would or could as soon as reasonably be expected to have an OTE Material Adverse Effect, practicable and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third after consultation with the other parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessarya response which is, properat a minimum, or advisable to consummate the transactions contemplated by this Agreement; (2) otherwise required under any contracts, licenses, leases, or other agreements in connection substantial compliance with the consummation of the transactions contemplated hereby; or (3) required to prevent a material adverse effect affecting either of their respective business and operations from occurring prior to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Timesuch request.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matter.
Appears in 3 contracts
Samples: Merger Agreement (Gaming & Leisure Properties, Inc.), Merger Agreement (Eldorado Resorts, Inc.), Merger Agreement (Icahn Enterprises Holdings L.P.)
Appropriate Action; Consents; Filings. (a) OTE The Company shall promptly prepare and TetriDyn shall usefile with the SEC the Information Statement or Proxy Statement, as applicable, and shall cause each of their respective subsidiaries to use, all use its commercially reasonable efforts to: to have the Information Statement or Proxy Statement, as applicable, cleared by the SEC as promptly as practicable after such filing, and the Company shall thereafter mail or deliver the Information Statement or Proxy Statement, as applicable, to its Shareholders. The Company shall notify Acquiror of the receipt of, and immediately provide to Acquiror true and complete copies of, any comments of the SEC with respect to the Information Statement or Proxy Statement, as applicable, or the transactions contemplated hereby and any requests by the SEC for any amendment or supplement thereto or for additional information.
(ib) Acquiror shall, upon request, furnish the Company with all information concerning Acquiror as may be reasonably necessary for inclusion in the Information Statement or Proxy Statement, as applicable, that may be furnished to the Shareholders.
(c) Upon the terms and subject to the conditions set forth in this Agreement, the Parties shall use their commercially reasonable efforts to take, or cause to be taken, all appropriate action, and do, or cause to be done, all things necessary, proper, or advisable required under applicable Laws Law or otherwise to consummate and make effective the transactions contemplated by this Agreement as promptly as practicable, including without limitation (i) executing and delivering any additional instruments necessary, proper or advisable to consummate the transactions contemplated by, and to carry out fully the purposes of, this Agreement; , (ii) obtain obtaining from any Governmental Entities Bodies any consents, licenses, permits, waivers, approvals, authorizations, or orders Permits required to be obtained or made by OTE Acquiror, Acquiror Sub or TetriDyn or any subsidiary the Company in connection with the authorization, execution, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, including the Merger; herein and (iii) make making all necessary filings, and thereafter make making any other required submissions, respecting with respect to this Agreement under any applicable Law, including without limitation making any filings required to be made pursuant to the HSR Act; provided that Acquiror, Acquiror Sub and the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn Company shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other non-filing Party and its advisers advisors prior to such filings and, if requested, shall accept filing and discussing all reasonable additions, deletions, deletions or changes suggested in connection therewith. OTE The Company, Acquiror and TetriDyn Acquiror Sub shall furnish to each other all information reasonably required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement. Any and all filing fees in respect of such filings shall be paid 50% by Acquiror and 50% by the Company.
(bd) OTE and TetriDyn agree to cooperate respectingExcept as the Parties may otherwise agree, to cause each of their respective subsidiaries to cooperate respectingthe Company, on the one hand, and to use all reasonable efforts vigorously to contest Acquiror and resist any actionAcquiror Sub, including legislativeon the other, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices required to be given by any of them, as applicable, to third parties, and use (and in the case of Acquiror, shall cause Acquiror Sub to use) their respective subsidiaries to use all commercially reasonable efforts to obtain any third-at the earliest practicable date all third party consents: (1) necessary, properapprovals or waivers required to obtained by them, or advisable as applicable, in order to consummate the transactions contemplated by in this Agreement; (2) otherwise required under any contracts, licenses, leases, or other agreements in connection with the consummation of the transactions contemplated hereby; or (3) required to prevent a material adverse effect affecting either of their respective business and operations from occurring prior to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(iie) OTE and TetriDyn shall use and cause their respective subsidiaries Subject to use all reasonable efforts to obtain release the provisions of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paidSection 7.3(f), discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party either the Company or Acquiror shall fail to obtain any third-party consent consent, approval or waiver described in subsection (c)(ii) aboveSection 7.3(d), such Party shall use all its commercially reasonable efforts, and shall take any such actions reasonably requested by any the other PartyParties, to limit the minimize any adverse effect upon OTE the Company and TetriDyn, Acquiror or Acquiror Sub and their respective subsidiaries and their respective businessesbusinesses resulting, resulting or that which could reasonably be expected to result after the Effective Time, from the failure to obtain such consent, approval or waiver.
(df) OTE and TetriDyn Notwithstanding anything to the contrary herein, nothing in this Agreement shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it require Acquiror or any of its subsidiaries; Subsidiaries to (i) agree to or to effect any divestiture, hold separate (including by establishing a trust or otherwise), settlement, undertaking, consent decree, or enter into any license or similar agreement with respect to, or agree to restrict its ownership or operation of, any business or assets of the Company or its Subsidiaries or of Acquiror or its Subsidiaries, (ii) enter into, amend or agree to enter into or amend, any Contracts of the Company or its Subsidiaries or of Acquiror or its Subsidiaries, (iii) otherwise waive, abandon or alter any material rights or obligations of the Company or its Subsidiaries or of Acquiror or its Subsidiaries, (iv) file or defend any event lawsuit, appeal any judgment or condition that might reasonably be expected to cause contest any of its representations, warranties, covenantsinjunction issued in a proceeding initiated by a Governmental Body, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means (v) pay any case, arbitration, or adversary proceeding monies or other matter consideration in order to obtain any consent, approval or waiver that relates to the Company or its assets or that is material to otherwise binding upon the business and operations of the subject entity, if in existence on the date hereof, Company or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matterits assets.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Royal Gold Inc), Merger Agreement (Royal Gold Inc), Agreement and Plan of Merger (Battle Mountain Gold Exploration Corp.)
Appropriate Action; Consents; Filings. (a) OTE Section 5.5.1 The Company and TetriDyn Parent shall use, and shall cause each of use their respective subsidiaries to use, all commercially reasonable efforts to: to (iA) take, or cause to be taken, all appropriate action, action and do, or cause to be done, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise to consummate and make effective the transactions contemplated by this Agreement; Agreement and each Ancillary Agreement as promptly as practicable, (iiB) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, authorizations or orders required or advisable to be obtained or made by OTE Parent, the Purchaser or TetriDyn the Company or any subsidiary of their respective subsidiaries, or to avoid any action or proceeding by any Governmental Entity, in connection with the authorization, execution, execution and delivery of this Agreement and each Ancillary Agreement and the consummation of the transactions contemplated herebyherein and therein, including without limitation the Merger; Offer and the Merger and (iiiC) make all necessary filings, and thereafter make any other required submissions, respecting with respect to this Agreement and each Ancillary Agreement, the Offer and the Merger required under: under (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; , and (2) any other applicable Law; provided thatprovided, OTE that the Company and TetriDyn Parent shall cooperate with each other in connection with (X) preparing and filing of the Offer Documents, the Schedule 14D-9, Proxy Statement (if any) and any Other Filings, (Y) determining whether any action by or in respect of, or filing with, any Governmental Entity is required, in connection with the consummation of the Offer or the Merger and (Z) seeking any such actions, consents, approvals or waivers or making of all any such filings, including providing copies of all such filed documents to the other Party non-filing party and its advisers advisors prior to such filings filing and, if requested, shall accept accepting all reasonable additions, deletions, deletions or changes suggested in connection therewith; and provided, further, that nothing in this Section 5.5.1 shall require Parent or the Company to agree to (I) the imposition of material conditions, (II) the requirement of divestiture of material assets or property or (III) the requirement of expenditure of money by Parent or the Company to a third party (other than a Governmental Entity) in exchange for any such consent. OTE The Company and TetriDyn Parent shall furnish to each other all information required for any application or other filing to be made pursuant to under the rules and regulations of any applicable Law (including all information) in connection with the transactions contemplated by this Agreement and each Ancillary Agreement.
Section 5.5.2 The Company and Parent shall give (b) OTE and TetriDyn agree to cooperate respecting, to or shall cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanentgive) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use use, and cause their respective subsidiaries to use use, all reasonable efforts to obtain any third-third party consents: , (1A) necessary, proper, proper or advisable to consummate the transactions contemplated by in this Agreement and each Ancillary Agreement; , (2B) otherwise required under any contractsto be disclosed in the Company Disclosure Schedule, licenses, leases, or other agreements in connection with the consummation of the transactions contemplated hereby; or (3C) required to prevent a material adverse effect affecting either of their respective business and operations from occurring prior to the Effective Time or a TetriDyn Company Material Adverse Effect from occurring prior to or after the Effective Time.
Time or (iiD) OTE otherwise referenced in paragraph I of Annex I; provided, however that the Company and TetriDyn Parent shall use coordinate and cause their respective subsidiaries cooperate in determining whether any actions, consents, approvals or waivers are required to use all reasonable efforts be obtained from parties to obtain release any Company Material Contracts in connection with consummation of the Offer or the Merger and seeking any guarantees by any owner of TetriDyn of any third-party indebtedness such actions, consents, approvals or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) waivers. In the event that any Party either party shall fail to obtain any third-party consent described in subsection (c)(ii) abovethe first sentence of this Section 5.5.2, such Party party shall use all reasonable efforts, and shall take any such actions reasonably requested by any the other Partyparty hereto, to limit the minimize any adverse effect upon OTE the Company and TetriDynParent, their respective subsidiaries, and their respective subsidiaries and their respective businessesbusinesses resulting, resulting or that which could reasonably be expected to result after the consummation of the Offer or the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn Section 5.5.3 From the date of this Agreement until the Effective Time, the Company shall promptly notify the other of: (i) any material change Parent in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) writing of any pending or, to the Company’s knowledge, threatened action, suit, arbitration or other proceeding or investigation by any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it Entity or any of its subsidiaries; other person (A) challenging or seeking material damages in connection with the Offer, the Merger or any other transaction contemplated by this Agreement or any Ancillary Agreement or (ivB) any event seeking to restrain or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at prohibit the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations consummation of the subject entityOffer, if in existence on the date hereofMerger or any other transaction contemplated by this Agreement or any Ancillary Agreement or otherwise limit the right of Parent, the Purchaser or for which the legal fees and other costs any Parent Subsidiary to TetriDyn might reasonably be expected to exceed $10,000 over the life own or operate all or any portion of the matter businesses or to OTE (assets of the Company or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matterCompany Subsidiary.
Appears in 3 contracts
Samples: Merger Agreement (Xyratex LTD), Merger Agreement (Xyratex LTD), Merger Agreement (Nstor Technologies Inc)
Appropriate Action; Consents; Filings. (a) OTE Subject to the terms of this Agreement, the Company and TetriDyn shall use, and shall cause each of Parent will use their respective subsidiaries reasonable best efforts to use, all reasonable efforts to: (i) take, or cause to be taken, all appropriate action, action and do, or cause to be done, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise to consummate and make effective the transactions contemplated by this Agreement; Agreement as promptly as practicable and (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, confirmations, clearances, certificates, exemptions, registrations or orders required to be obtained by Parent or made by OTE or TetriDyn the Company or any subsidiary of their respective Subsidiaries, or to avoid any action or proceeding by any Governmental Entity (including those in connection with the HSR Act), in connection with the authorization, execution, execution and delivery of this Agreement and the consummation of the transactions contemplated herebyherein, including the Merger; .
(iiib) In furtherance and not in limitation of Section 5.5(a), each party agrees to make all necessary any appropriate filings, and thereafter make any if necessary or advisable, pursuant to other required submissionsapplicable Competition Laws (other than pursuant to the HSR Act, respecting which filings were made prior to the date of this Agreement Agreement) with respect to the Merger as promptly as reasonably practicable. Each of Parent, Merger Sub and the Merger required under: Company will (1i) cooperate and coordinate with the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party and its advisers prior to such any filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information submissions that are required for any application or other filing to be made pursuant to the rules and regulations of under any applicable Law Laws or requested to be made by any Governmental Entity in connection with the transactions contemplated by this Agreement.
, (bii) OTE and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist supply the other or its outside counsel with any action, including legislative, administrative, information that may be required or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of requested by any Governmental Entity in connection with such filings or submissions, (iii) supply any additional information that is may be required or requested by the Federal Trade Commission, the Department of Justice or other Governmental Entities in effect which any such filings or submissions are made as promptly as reasonably practicable, and that restricts(iv) use their respective reasonable best efforts to cause the expiration or termination of the applicable waiting periods under any applicable Competition Laws as soon as reasonably practicable following the date of this Agreement (and prior to the Outside Date) (as may be extended pursuant to Section 7.1(e)). Without limiting the generality of the foregoing, prevents(A) both Parent and Company (and their respective Subsidiaries and Affiliates) shall contest, defend and appeal any Proceedings brought by a Governmental Entity, whether judicial or prohibits administrative, challenging or seeking to restrain or prohibit the consummation of the Merger or seeking to compel any divestiture by Parent or the Company or any of their respective Subsidiaries of shares of capital stock or of any business, assets or property, or to impose any limitation on the ability of any of them to conduct their businesses or to own or exercise control of such assets, properties or stock to avoid or eliminate any impediment under the HSR Act or similar applicable Law, and (B) Parent and the Company shall not, and shall not permit any of their respective Subsidiaries to, (1) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in or otherwise make any investment in, or by any other manner, any Person or portion thereof, or otherwise acquire or agree to acquire or make any investment in any assets, and (2) enter into, significantly expand or publicly announce an agreement to form a joint venture, strategic alliance or strategic partnership with another Person, in each case (1) and (2), if the entering into of a definitive agreement relating to or the consummation of such acquisition, merger, consolidation, investment, agreement or expansion would reasonably be expected to (I) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate or order of any Governmental Entity necessary to consummate the transactions contemplated hereby or the expiration or termination of any applicable waiting period, (II) materially increase the risk of any Governmental Entity entering an order prohibiting the consummation of the transactions contemplated hereby or (III) materially delay the consummation of the transactions contemplated hereby.
(c) In furtherance and not in limitation of Section 5.5(a), each party agrees to make any appropriate filings, if necessary or advisable, pursuant to any other applicable Laws with respect to the Merger as promptly as reasonably practicable. Each of Parent, Merger Sub, and the Company will (i) cooperate and coordinate with the other in the making of any filings, registrations, notices, applications, submissions, information or documentation, including Joint Applications, that are required to be made or advisable under any other applicable Laws or requested to be made by any Governmental Entity in connection with the transactions contemplated by this Agreement, including but not limited to, with the FAA, the DOT under 49 U.S.C. §§ 40109, 41105, and 41110, and the FCC, (ii) supply the other or its outside counsel with any information that may be required or requested by any Governmental Entity in connection with such filings, registrations, notices, applications, submissions, information or documentation, (iii) supply any additional information that may be required or requested by the FAA, the DOT, the FCC or any other Governmental Entities, in connection with any such filings, registrations, notices, applications, submissions, information or documentation as promptly as practicable, and (iv) use their respective reasonable best efforts to obtain all consents, registrations, waivers, exemptions, approvals, confirmations, clearances, permits, certificates, orders, and authorizations necessary, proper or advisable to be obtained from, or renewed with, the FAA, the DOT, the FCC, and any other Governmental Entity.
(d) Without limiting the generality of anything contained in this Section 5.5, each party will: (i) give the other parties prompt notice of the making or commencement of any request, inquiry, investigation or Proceeding by or before any Governmental Entity with respect to the Merger or any of the other transactions contemplated by this Agreement; (ii) keep the other parties informed as to the status of any such request, inquiry, investigation or Proceeding; (iii) promptly inform the other parties of any communication to or from the Federal Trade Commission, the Department of Justice, the FAA, the DOT, the FCC, the DHS, the TSA or any other Governmental Entity regarding the Merger; (iv) except in respect of the matters described in clause (v) immediately below, consult and cooperate with the other parties and consider in good faith the views of the other parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted to a Governmental Entity (other than a Competition Authority) in connection with the Merger or any of the other transactions contemplated by this Agreement, including (v) permit the other parties to review in advance (and to consider in good faith any comments made by vigorously pursuing all available avenues the other party in relation to) any proposed substantive communication by such party to the U.S. Department of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets Justice or the withdrawal applicable Governmental Entity of another jurisdiction from doing business which consent, license, permit, waiver, exemption, approval, authorization, confirmation, clearance, certificate, registration or order is required under applicable Competition Law in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of connection with the Merger or any of the other transactions contemplated by this Agreement (collectively, the “Competition Authorities”) relating to any request, inquiry, investigation or Proceeding by or before a Competition Authority with respect to the Merger or any of the other transactions contemplated by this Agreement. In addition, except as may be required to avoidprohibited by any Governmental Entity or by any Law, liftin connection with any request, vacateinquiry or investigation by, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not and Proceeding before, a Competition Authority, each party will permit authorized Representatives of the other party to be satisfiedpresent at each meeting or conference relating to such any request, inquiry, investigation or Proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to a Competition Authority in connection with such request, inquiry, investigation or Proceeding. None of Parent, Merger Sub or the Company will agree to participate in any substantive meeting, telephone call or discussion with a Competition Authority in respect of any submissions, filings, investigation (including any settlement of the investigation), litigation or other inquiry relating to the matters that are the subject of this Agreement unless it consults with the other parties in advance and, except as may be prohibited by a Competition Authority or by any Law, will permit authorized Representatives of the other parties to be present at each substantive meeting, telephone call or discussion. Each of Parent, Merger Sub and the Company will provide each other with copies of all correspondence, filings or communications between them or any of their Representatives, on the one hand, and any Governmental Entity or members of its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement; provided, however, that materials may be redacted as necessary to (i) comply with contractual arrangements, (ii) to remove information related to Parent or Merger Sub’s valuation of the Company and (iii) address reasonable attorney-client or other privilege or confidentiality concerns.
(e) Notwithstanding anything to the contrary in this Agreement, in connection with the receipt of any necessary license, permit, waiver, approval, authorization or order of a Governmental Entity (including under the HSR Act), neither Parent nor the Company (nor any of their respective Subsidiaries or Affiliates) shall be required to sell, hold separate or otherwise dispose of or conduct their business (or, following the Closing, the combined business) in a specified manner, or agree to sell, hold separate or otherwise dispose of or conduct their business (or, following the Closing, the combined business) in a specified manner, or enter into or agree to enter into a voting trust arrangement, proxy arrangement, “hold separate” agreement or arrangement or similar agreement or arrangement with respect to the assets, operations or conduct of their business (or, following the Closing, the combined business) in a specified manner, or permit the sale, holding separate or other disposition of, any assets of Parent, the Company or their respective Subsidiaries or Affiliates (each a “Divestiture Action”) if such action would or would reasonably be expected to result in a material adverse effect on Parent and its Subsidiaries (including the Company and its Subsidiaries) after giving effect to the transactions contemplated hereby, taken as a whole; provided, however, that (x) Parent hereby agrees to take the Divestiture Action with respect to any of the assets set forth on Section 5.5(e)(x) of the Parent Disclosure Schedule, (y) it is understood and agreed that subject to the other provisions of this Section 5.5, the identity of any additional Divestiture Actions shall be determined by Parent in its sole and absolute discretion and (z) in no event shall OTE Parent be required to agree to or effect any Divestiture Action set forth on Section 5.5(e)(z) of the Parent Disclosure Schedule. Nothing in this Agreement shall require any party to take or agree to take any action that would with respect to its business or could reasonably be expected to have an OTE Material Adverse Effectoperations in connection with obtaining required approval or clearance under any applicable Competition Laws unless the effectiveness of such agreement or action is conditioned upon the Closing. To assist Parent in complying with its obligations set forth in this Section 5.5(e), upon Parent’s reasonable request, the Company shall, and TetriDyn shall not cause its Subsidiaries to, (i) reasonably assist Parent in any sales process (including through facilitation of reasonable due diligence) with potential purchasers of any of the Company’s or its subsidiaries’ businesses or other assets proposed by Parent to be required subject to any sale or other disposal or hold separate and (ii) enter into one or more agreements prior to the Closing with respect to any such sale or other disposal or hold separate. For the avoidance of doubt, nothing in this Agreement shall require any party to take or agree to take any action that would with respect to its business or could reasonably be expected to have a TetriDyn Material Adverse Effectoperations in connection with obtaining required approval or clearance under any applicable Competition Laws unless the effectiveness of such agreement or action is conditioned upon the Closing.
(if) OTE Notwithstanding anything to the contrary in this Agreement, Parent shall, on behalf of the parties hereto, control and TetriDyn lead all communications and strategy relating to obtaining all approvals, consents, waivers, registrations, permits, authorizations and other confirmations from any Governmental Entity or third party necessary, proper or advisable to consummate the Merger and other transactions contemplated by this Agreement and in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Entity; provided, however, that Parent shall consult in advance with the Company and in good faith take the Company’s views into account regarding the overall strategic direction of any such litigation or approval process, as applicable, and consult with the Company prior to taking any material substantive positions, making dispositive motions or other material substantive filings or submissions or entering into any negotiations concerning such litigation or approvals, as applicable.
(g) The parties shall give (or shall cause their respective Subsidiaries to give) any notices to third parties, and use use, and cause their respective subsidiaries Subsidiaries to use all use, their commercially reasonable efforts to obtain any third-third party consents: , (1i) necessary, proper, proper or advisable to consummate the transactions contemplated by this Agreement; , (2ii) otherwise required under any contracts, licenses, leases, or other agreements to be disclosed in connection with the consummation of the transactions contemplated hereby; Company Disclosure Schedule or (3iii) required to prevent a material adverse effect affecting either of their respective business and operations from occurring prior to the Effective Time or a TetriDyn Company Material Adverse Effect from occurring prior to or after the Effective Time; provided, however, that the parties shall coordinate and cooperate in determining whether any actions, consents, approvals or waivers are required to be obtained from parties to any Company Material Contracts in connection with consummation of the Merger and seeking any such actions, consents, approvals or waivers.
(iih) OTE and TetriDyn shall use and cause their respective subsidiaries Notwithstanding anything to use all reasonable efforts the contrary in this Agreement, in connection with obtaining any approval or consent from any Person with respect to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paidthe Merger, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify the other of: (i) without the prior written consent of Parent and the Company, no party shall not pay or commit to pay to such Person whose approval or consent is being solicited any material change in its current cash or future businessother consideration, assets, liabilities, financial condition, make any commitment or results of operations; incur any liability or other obligation due to such Person and (ii) any complaints, investigations, or hearings (or communications indicating that neither Parent nor the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or Company nor any of its subsidiaries; their respective Subsidiaries and Affiliates shall be required to pay or (iv) commit to pay to such Person whose approval or consent is being solicited any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding cash or other matter that is material to the business and operations of the subject entityconsideration, if in existence on the date hereof, make any commitment or for which the legal fees and incur any liability or other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matterobligation.
Appears in 3 contracts
Samples: Merger Agreement (Jetblue Airways Corp), Merger Agreement (Jetblue Airways Corp), Merger Agreement (Spirit Airlines, Inc.)
Appropriate Action; Consents; Filings. (a) OTE Subject to the terms of this Agreement, the Company and TetriDyn shall use, and shall cause each of Parent will use their respective subsidiaries reasonable best efforts to use, all reasonable efforts to: (i) take, or cause to be taken, all appropriate action, action and do, or cause to be done, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise to consummate and make effective the transactions contemplated by this Agreement; Agreement as promptly as practicable and (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, authorizations or orders required to be obtained by Parent or made by OTE or TetriDyn the Company or any subsidiary of their respective Subsidiaries, or to avoid any action or proceeding by any Governmental Entity (including, without limitation, those in connection with the HSR Act), in connection with the authorization, execution, execution and delivery of this Agreement and the consummation of the transactions contemplated herebyherein, including the Merger; (iii) make all necessary filingsprovided, that the Company and thereafter make any other required submissions, respecting this Agreement and the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall Parent will cooperate with each other in connection with (x) determining whether any action by or in respect of, or filing with, any Governmental Entity is required, in connection with the consummation of the Merger and (y) seeking any such actions, consents, approvals or waivers or making of all any such filings, including providing copies of all such documents . The Company and Parent will furnish to the each other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to under the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
. The Company and Parent will give (b) OTE and TetriDyn agree to cooperate respecting, to or will cause each of their respective subsidiaries Subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanentgive) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use use, and cause their respective subsidiaries Subsidiaries to use all use, their commercially reasonable efforts to obtain any third-party consents: consents (1i) necessary, proper, proper or advisable to consummate the transactions contemplated by this Agreement; Agreement (2) otherwise required including any consent under any contractsContract, licenses, leases, or other agreements which by its terms requires consent in connection with the transactions contemplated by this Agreement), or (ii) required to be disclosed in the Company Disclosure Schedule. If requested by Parent, the Company shall request and use commercially reasonable efforts to obtain customary payoff letters, Lien terminations and instruments of discharge, relating to any Indebtedness of the Company to be paid off, terminated or discharged at the Closing.
(b) In furtherance and not in limitation of Section 5.5(a), each party hereto agrees to make any appropriate filings, if necessary or advisable, pursuant to the HSR Act or other applicable Competition Laws with respect to the Merger as promptly as practicable and in any event within ten (10) Business Days of the date of this Agreement (unless otherwise mutually agreed between the parties). Each of Parent, Merger Sub and the Company will (i) cooperate and coordinate with the other in the making of any filings or submissions that are required to be made under any applicable Laws or requested to be made by any Governmental Entity in connection with the transactions contemplated by this Agreement, (ii) supply the other or its outside counsel with any information that may be required or requested by any Governmental Entity in connection with such filings or submissions, (iii) supply any additional information that may be required or requested by the Federal Trade Commission, the Department of Justice or other Governmental Entities in which any such filings or submissions are made as promptly as practicable, (iv) use their reasonable best efforts to cause the expiration or termination of the applicable waiting periods under any applicable Laws as soon as reasonably practicable and (v) take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to obtain any consents, licenses, permits, waivers, approvals, authorizations or orders required under or in connection with any applicable Laws or from any Governmental Entity, and to enable all waiting periods under applicable Laws to expire, and to avoid or eliminate each and every impediment under applicable Laws asserted by any Governmental Entity, 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 prior to the Outside Date), including but not limited to (A) promptly complying with any requests for additional information (including to certify that such party has “substantially complied” with any request for additional information or documentary material issued by a Governmental Entity under 15 U.S.C. Section 18(a)(e) in conjunction with the transactions contemplated by this Agreement as promptly as practicable) by any Governmental Entity, (B) if necessary to obtain clearance by any Governmental Entity before the Outside Date, committing to, taking and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, license or other disposition of any business or assets, (in each case conditioned on the consummation of the Merger) and (C) contesting, defending and appealing any lawsuit or other legal proceeding, whether judicial or administrative, threatened or pending preliminary or permanent injunction or other order, decree or ruling or statute, rule, regulation or executive order that would adversely affect the ability of any party hereto to consummate the transactions contemplated hereby; or (3) required hereby and taking any and all other actions to prevent the entry, enactment or promulgation thereof. Notwithstanding anything to the contrary in this Agreement, nothing contained in this Agreement shall require Parent or its Subsidiaries or the Company to take, or agree to take, any actions specified in this Section 5.5 that, individually or in the aggregate, would reasonably be expected to have a material adverse effect affecting either of their respective business on Parent and operations from occurring prior to the Effective Time its Subsidiaries, taken as a whole, or a TetriDyn Company Material Adverse Effect from occurring after Effect. Without limiting the Effective Time.
(ii) OTE generality of the foregoing, Parent will not, and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or permit any of its subsidiaries; Subsidiaries to, enter into, significantly expand or (iv) publicly announce an agreement to form a joint venture, strategic alliance or strategic partnership with a major domestic air carrier or to acquire any event assets, business or condition that might company if such agreement, individually or in the aggregate, would reasonably be expected to cause any of its representations, warranties, covenants, or agreements the conditions set forth herein in Section 6.1(b) or Section 6.1(c) not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, satisfied or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might would reasonably be expected to exceed $10,000 over have the life effect of preventing or delaying past the Outside Date the consummation of the matter Merger.
(c) Without limiting the generality of anything contained in this Section 5.5, each party hereto will: (i) give the other parties prompt notice of the making or commencement of any request, inquiry, investigation or Proceeding by or before any Governmental Entity with respect to OTE (the Merger or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matterother transactions contemplated by this Agreement; (ii) keep the other parties informed as to the status of any such request, inquiry, investigation or Proceeding; and (iii) promptly inform the other parties of any communication to or from the Federal Trade Commission, the Department of Justice, the FAA, the DOT, the FCC, the DHS, the TSA or any other Governmental Entity regarding the Merger. Each party hereto will consult and cooperate with the other parties and will consider in good faith the views of the other parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with the Merger or any of the other transactions contemplated by this Agreement. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation or Proceeding, each party hereto will permit authorized Representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation or Proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation or Proceeding.
Appears in 3 contracts
Samples: Merger Agreement (Alaska Air Group, Inc.), Merger Agreement (Virgin America Inc.), Merger Agreement (Alaska Air Group, Inc.)
Appropriate Action; Consents; Filings. (a) OTE Subject to the terms of this Agreement (including Section 5.6(b)), the Company and TetriDyn shall use, and shall cause each of Parent will use their respective subsidiaries reasonable best efforts to use, all reasonable efforts to: (i) take, or cause to be taken, all appropriate action, action and do, or cause to be done, all those things necessary, proper, proper or advisable under applicable Laws Law or otherwise to consummate and make effective the transactions contemplated by this Agreement; Agreement as promptly as practicable, (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, authorizations or orders required to be obtained by Parent or made by OTE or TetriDyn the Company or any subsidiary of their respective Subsidiaries, or to avoid any action or proceeding by any Governmental Entity (including, without limitation, those in connection with the HSR Act and any other applicable Competition Laws), and (iii) submit any filings or notifications to the U.S. Department of State’s Directorate of Defense Trade Controls required under Section 122.4 of the International Traffic in Arms Regulations, in connection with the authorization, execution, execution and delivery of this Agreement and the consummation of the transactions contemplated herebyherein, including the Merger; (iii) make all necessary filingsprovided, that the Company and thereafter make any other required submissions, respecting this Agreement and the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall Parent will cooperate with each other in connection with (x) determining whether any action by or in respect of, or filing with, any Governmental Entity is required, in connection with the consummation of the Merger and (y) seeking any such actions, consents, approvals or waivers or making of all any such filings; provided, including providing copies of further, that notwithstanding the foregoing, no party shall be required to waive any right or remedy under this Agreement. The Company and Parent will furnish to each other all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, information reasonably required or changes suggested requested in connection therewith. OTE and TetriDyn shall furnish all information required for with any application or other filing to be made pursuant to under the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE . The Company and TetriDyn agree to cooperate respecting, to cause each of Parent will use their respective subsidiaries to cooperate respecting, and to use all commercially reasonable efforts vigorously to contest and resist any action, including legislative, administrative, give (or judicial action, and will cause their respective Subsidiaries to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanentgive) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use use, and cause their respective subsidiaries Subsidiaries to use all use, their commercially reasonable efforts to obtain any third-party consents: consents (1i) necessary, proper, proper or advisable to consummate the transactions contemplated by this Agreement; Agreement or (2ii) required to be disclosed in Section 3.5 or Section 4.5 of the Company Disclosure Schedule or the Parent Disclosure Schedule, as applicable.
(b) In furtherance and not in limitation of Section 5.6(a), and subject to the remainder of this Section 5.6(b), each party hereto agrees to make any appropriate filings, if necessary or advisable, pursuant to the HSR Act or the other applicable Competition Laws of the jurisdictions set forth on Section 3.5 of the Company Disclosure Schedule with respect to the Merger as promptly as practicable, and in any event within ten (10) Business Days of the date of this Agreement with respect to filings under the HSR Act (unless otherwise mutually agreed between the parties). Each of Parent, Merger Sub and the Company will (i) cooperate and coordinate with the other in the making of any filings or submissions that are required to be made under any contracts, licenses, leases, applicable Laws or other agreements requested to be made by any Governmental Entity in connection with the transactions contemplated by this Agreement, (ii) supply the other or its outside counsel with any information that may be required or requested by any Governmental Entity in connection with such filings or submissions, (iii) supply any additional information that may be required or requested by the Federal Trade Commission, the Department of Justice, or other Governmental Entities with which any such filings or submissions are made as promptly as practicable, (iv) use their reasonable best efforts to cause the expiration or termination of the applicable waiting periods under any applicable Laws as soon as reasonably practicable and (v) take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to obtain any consents, licenses, permits, waivers, approvals, authorizations or orders required under or in connection with any applicable Laws or from any Governmental Entity, and to enable all waiting periods under applicable Laws to expire, and to avoid or eliminate each and every impediment under applicable Laws asserted by any Governmental Entity, 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 prior to the Outside Date), including but not limited to (A) promptly complying with any requests for additional information (including to certify that such party has “substantially complied” with any request for additional information or documentary material issued by a Governmental Entity under 15 U.S.C. Section 18(a)(e) in conjunction with the transactions contemplated by this Agreement as promptly as practicable) by any Governmental Entity, (B) if necessary to obtain clearance by any Governmental Entity before the Outside Date, but subject to the remainder of this Section 5.6(b) (including the limitations set forth below), offering, negotiating, committing to, taking and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture, license or other disposition of any business or assets of Parent or its Subsidiaries, or the Company or the Company Subsidiaries, and any other actions that limit the freedom of action with respect to, or the ability to retain, any business or assets of Parent or its Subsidiaries or the Company or the Company Subsidiaries (in each case provided that such action is conditioned on the consummation of the Merger) (all of the foregoing a “Divestiture Action”) and (C) contesting, defending and appealing any lawsuit or other legal proceeding, whether judicial or administrative, threatened or pending preliminary or permanent injunction or other order, decree or ruling or statute, rule, regulation or executive order that would adversely affect the ability of any party hereto to consummate the transactions contemplated hereby; or (3) required hereby and taking any and all other actions to prevent the entry, enactment or promulgation thereof. Notwithstanding the foregoing, neither Parent nor any of its Subsidiaries shall be required to, and the Company and the Company Subsidiaries shall not, without the prior written consent of Parent, offer, negotiate, commit to, take or effect any Divestiture Action, if doing so would, individually or in the aggregate, reasonably be expected to have a material adverse effect affecting either on the business, assets, results of their respective business operations or financial condition of (x) Parent or its Subsidiaries or (y) the Company or the Company Subsidiaries (in each case of (x) and operations from occurring prior (y), as measured on a scale relative to the Effective Time or Company and the Company Subsidiaries, taken as a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(cwhole).
(iiic) In Without limiting the event that any Party shall fail to obtain any third-generality of anything contained in this Section 5.6, each party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify the other ofhereto will: (i) give the other parties prompt notice of the making or commencement of any material change in its current request, inquiry, investigation or future business, assets, liabilities, financial condition, Proceeding by or results before any Governmental Entity with respect to the Merger or any of operationsthe other transactions contemplated by this Agreement; (ii) any complaints, investigations, or hearings (or communications indicating that keep the same may be contemplated) other parties reasonably informed as to the status of any Governmental Entities respecting its business such request, inquiry, investigation or the transactions contemplated herebyProceeding; and (iii) except as may be prohibited by any Governmental Entity or by any applicable Law, promptly inform the institution other parties of any communication to or from the threat Federal Trade Commission, the Department of material litigation involving it Justice or any other Governmental Entity regarding the Merger. Each party hereto will consult and cooperate with the other parties and will consider in good faith the views of the other parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with the Merger or any of its subsidiaries; the other transactions contemplated by this Agreement. In addition, except as may be prohibited by any Governmental Entity or by any applicable Law, in connection with any such request, inquiry, investigation or Proceeding, each party hereto will permit authorized Representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation or Proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation or Proceeding. Notwithstanding the foregoing, each party agrees that, with respect to the Competition Laws of the jurisdictions set forth on Section 3.5 of the Company Disclosure Schedule, Parent shall, acting reasonably and in good faith, on behalf of the parties, direct and control all communications and strategy relating to (x) obtaining any consents, approvals, authorizations or orders required to be obtained by Parent or the Company or any of their respective Subsidiaries or (ivy) contesting or avoiding any event action, proceeding or condition that might reasonably be expected to cause litigation by any Governmental Entity under the applicable Competition Laws of its representations, warranties, covenants, or agreements the jurisdictions set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations on Section 3.5 of the subject entityCompany Disclosure Schedule; provided, if that Parent shall keep the Company fully informed on a reasonably current basis of all material developments related thereto and consult with the Company and consider in existence on good faith the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life views of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matterCompany.
Appears in 3 contracts
Samples: Merger Agreement, Merger Agreement (Ch2m Hill Companies LTD), Merger Agreement (Jacobs Engineering Group Inc /De/)
Appropriate Action; Consents; Filings. (a) OTE The Company and TetriDyn shall use, and shall cause Acquiror will each of their respective subsidiaries to use, all use reasonable efforts to: (i) to take, or to cause to be taken, all appropriate action, and to do, or to cause to be done, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise to consummate and make effective the transactions contemplated by this Agreement; , unless the Board of the Directors of the Company has withdrawn its recommendation of this Agreement in compliance herewith, (ii) to obtain from any Governmental Entities Authorities any consents, licenses, permits, waivers, approvals, authorizations, Permits or orders Orders required to be obtained by Acquiror or made by OTE or TetriDyn the Company or any subsidiary of their Subsidiaries in connection with the authorization, execution, delivery and delivery performance of this Agreement and the consummation of the transactions contemplated hereby, including the Merger; , (iii) to make all necessary filings, and thereafter make any other required submissions, respecting with respect to this Agreement and the Merger required under: under (1A) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; , (B) the HSR Act (C) Foreign Competition Laws and (2D) any other applicable Law; provided that, OTE PROVIDED that Acquiror and TetriDyn shall the Company will cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party nonfiling party and its advisers advisors prior to such filings and, if requested, shall will accept all reasonable additions, deletions, deletions or changes suggested in connection therewith. OTE therewith and TetriDyn shall (iv) to furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law or any applicable Regulations of any Governmental Authority (including all information required to be included in the Proxy Statement or the Registration Statement) in connection with the transactions contemplated by this Agreement PROVIDED, HOWEVER, that neither Acquiror nor any of its Affiliates shall be under any obligation to make proposals, execute or carry out agreements or submit to Orders providing for the sale or other disposition or holding separate (through the establishment of a trust or otherwise) of any material (in nature or amount) assets or categories of material (in nature or amount) assets of Acquiror, any of its Affiliates or the Company or the holding separate of the shares of Company Common Stock or imposing or seeking to impose any material limitation on the ability of Acquiror or any of its Subsidiaries or Affiliates to conduct their business or own such assets or to acquire, hold or exercise full rights of ownership of the shares of Company Common Stock.
(b) Each of the Company and Acquiror will give prompt notice to the other of (i) any notice or other communication from any Person alleging that the consent of such Person is or may be required in connection with the Merger, (ii) any notice or other communication from any Governmental Authority in connection with the Merger, (iii) any Litigation, relating to or involving or otherwise affecting the Company, Acquiror or their Subsidiaries that relates to the consummation of the Merger; and (iv) any change that is reasonably likely to have a Material Adverse Effect on the Company or Acquiror.
(c) Each of the Company and Acquiror will give (or will cause their respective Subsidiaries to give) any notices to third Persons, and use, and cause their respective Subsidiaries to use, reasonable efforts to obtain any consents from third Persons necessary, proper or advisable (as determined in good faith by Acquiror with respect to such notices or consents to be delivered or obtained by the Company) to consummate the transactions contemplated by this Agreement.
(bd) OTE To the extent requested by Acquiror, the Company shall cooperate with Acquiror to identify any "Encumbrances" that may adversely affect the Company's or its Subsidiaries' right to sublicense any Intellectual Property rights owned or licensed by the Company (including the right to further sublicense such rights) in the Company's or its Subsidiaries' client or server software (including without limitation development tools, tests and TetriDyn agree other development components) which will exist as of the Closing Date, and any maintenance upgrades and new releases of such software, if any, which will be already in progress at the Company as of the Closing Date, and/or any components of the foregoing (collectively, the "Software Products"). Such cooperation shall include, upon Acquiror's written request, granting Acquiror full access, subject to cooperate respectingexisting or other reasonable confidentiality restrictions, to cause each the Company's technology licenses, acquisition agreements and Intellectual Property claims relating to the Software Products. "Encumbrance" means any restriction or limit that would prevent or materially limit or restrict the Company's ability to sublicense any Intellectual Property right owned or licensed by the Company (including the right to further sublicense such rights) with respect to the Software Products, including, without limitation, limitations on source code access and sublicensing rights, as well as prohibitions or required consents to assignment of their respective subsidiaries rights from the Company to cooperate respectingthe Acquiror upon the Closing Date, and to which rights, if not available, would constitute an Encumbrance. The Company shall use all reasonable efforts vigorously in consultation with Acquiror to contest remove, limit or diminish such Encumbrances in a reasonable priority order designated by Acquiror, with the goal of removing or minimizing as soon as practicable all such Encumbrances and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in having no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable to consummate the transactions contemplated by this Agreement; (2) otherwise required under any contracts, licenses, leases, or other agreements ongoing financial obligations in connection with the consummation of the transactions contemplated hereby; or (3) required to prevent a material adverse effect affecting either of their respective business and operations from occurring prior to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Timetherewith.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matter.
Appears in 3 contracts
Samples: Merger Agreement (Netscape Communications Corp), Merger Agreement (Barksdale James L), Merger Agreement (Netscape Communications Corp)
Appropriate Action; Consents; Filings. (a) OTE Buyer, Seller and TetriDyn IHC shall useuse their reasonable efforts, and Seller and IHC shall cause each of their respective subsidiaries the Company to useuse its reasonable efforts, all reasonable efforts to: to (iA) take, or cause to be taken, all appropriate action, and do, or cause to be done, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise to consummate and make effective the transactions contemplated by this Agreement; Agreement or by any of the Ancillary Agreements as promptly as practicable, (iiB) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, or orders required to be obtained or made by OTE or TetriDyn or any subsidiary in connection with the authorization, executionConsents, and delivery of this Agreement and the consummation of the transactions contemplated hereby, including the Merger; (iiiC) make all necessary filings, including the filings with the Commissioner of Insurance of the State of Delaware, and thereafter make any other required submissions, respecting with respect to this Agreement and the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and under any other applicable federal or state securities Laws; and (2) any other applicable Law; provided thatprovided, OTE that Buyer, Seller and TetriDyn IHC shall cooperate with each other other, and Seller and IHC shall cause the Company to cooperate with Buyer, in connection with the making of all such filings, including providing copies of all such documents to the other Party non-filing party and its advisers advisors prior to such filings filing and, if requested, shall to accept all reasonable additions, deletions, deletions or changes suggested in connection therewiththerewith and, provided, however, that nothing in this Section 6.3(a) shall require Buyer to agree to (AA) the imposition of conditions, (BB) the requirement of divestiture or (CC) the requirement of expenditure of money by Buyer the Company or its Subsidiaries to a third party in exchange for any such consent that, in the case of clause (CC), would be reasonably likely to have a Material Adverse Effect or a Buyer Material Adverse Effect. OTE Buyer, Seller and TetriDyn IHC shall furnish to each other, and Seller and IHC shall cause the Company to furnish to Buyer, all information required for any application or other filing to be made pursuant to under the rules and regulations of any applicable Law in connection with the transactions contemplated by this AgreementAgreement or by any of the Ancillary Agreements.
(b) OTE Buyer, Seller and TetriDyn agree to cooperate respecting, to IHC shall give (or shall cause each of the Company or their respective subsidiaries Subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanentgive) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use use, and cause the Company and their respective subsidiaries Subsidiaries to use use, all reasonable efforts to obtain any third-third party consents: , (1A) necessary, proper, proper or advisable to consummate the transactions contemplated by in this Agreement; , (2B) otherwise required under any contractsto be disclosed in the Company Disclosure Schedule or the Buyer Disclosure Schedule, licenses, leasesas applicable, or other agreements in connection with the consummation of the transactions contemplated hereby; or (3C) required to prevent a material adverse effect affecting either of their respective business and operations from occurring prior to the Effective Time Material Adverse Effect or a TetriDyn Buyer Material Adverse Effect from occurring prior to or after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) Closing Date. In the event that any Party either party shall fail to obtain any third-third party consent described in subsection (c)(ii) abovethe first sentence of this Section 6.3(b), such Party party shall use all reasonable efforts, and shall take any such actions reasonably requested by any the other Partyparty hereto, to limit the minimize any adverse effect upon OTE and TetriDynBuyer, Seller, IHC, the Company, their respective Subsidiaries, and their respective subsidiaries and their respective businessesbusinesses resulting, resulting or that which could reasonably be expected to result after the Effective TimeClosing, from the failure to obtain such consent.
(dc) OTE From the date of this Agreement until the Closing, Seller and TetriDyn IHC shall promptly notify the other of: (i) any material change Buyer in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) writing of any Governmental Entities respecting its business pending or, to the Knowledge of the Company, threatened action, suit, arbitration or the transactions contemplated hereby; (iii) the institution other proceeding or the threat of material litigation involving it investigation by any governmental entity or any of its subsidiaries; other Person (A) challenging or seeking material damages in connection with this Agreement or (ivB) seeking to restrain or prohibit the consummation of this Agreement or otherwise limit the right of Buyer or its subsidiaries to own or operate all or any event portion of the businesses or condition that might reasonably be expected assets of the Company or its Subsidiaries.
(d) From the date of this Agreement until the Closing, Buyer shall promptly notify Seller in writing of any pending or, to cause any the Knowledge of its representationsthe Buyer, warrantiesthreatened action, covenantssuit, arbitration or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary other proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (investigation by any governmental entity or any subsidiaryother Person (A) might reasonably be expected challenging or seeking material damages in connection with this Agreement or (B) seeking to exceed $10,000 over restrain or prohibit the life consummation of the matterthis Agreement.
Appears in 3 contracts
Samples: Stock Purchase Agreement (Madison Investors Corp), Stock Purchase Agreement (Independence Holding Co), Stock Purchase Agreement (Softnet Systems Inc)
Appropriate Action; Consents; Filings. (a) OTE The Company and TetriDyn Parent shall use, and shall cause each of use their respective subsidiaries to use, all commercially reasonable efforts to: to (i) take, or cause to be taken, all appropriate action, action and do, or cause to be done, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise to consummate and make effective the transactions contemplated by this Agreement; Agreement as promptly as practicable, (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, authorizations or orders required to be obtained by Parent or made by OTE or TetriDyn the Company or any subsidiary of their respective Subsidiaries, or to avoid any action or proceeding by any Governmental Entity (including those in connection with the HSR Act), in connection with the authorization, execution, execution and delivery of this Agreement and the consummation of the transactions contemplated herebyherein, including the Merger; Offer and the Merger and (iii) as promptly as reasonably practicable, and in any event within 10 Business Days after the date hereof, make all necessary filings, and thereafter make any other required submissions, respecting and pay any fees due in connection therewith, with respect to this Agreement Agreement, the Offer and the Merger required under: under (1A) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; , (B) the HSR Act and (2C) any other applicable Law; provided thatprovided, OTE that the Company and TetriDyn Parent shall cooperate with each other in connection with (x) preparing and filing the Offer Documents, the Schedule 14D-9, the Proxy Statement and any Other Filings, (y) determining whether any action by or in respect of, or filing with, any Governmental Entity is required, in connection with the consummation of the Offer or the Merger and (z) seeking any such actions, consents, approvals or waivers or making of all any such filings, including providing copies of all such documents to the other Party . The Company and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn Parent shall furnish to each other all information required for any application or other filing to be made pursuant to under the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE The Company and TetriDyn agree to cooperate respecting, to Parent shall give (or shall cause each of their respective subsidiaries Subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanentgive) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use use, and cause their respective subsidiaries Subsidiaries to use all use, their commercially reasonable efforts to timely obtain any third-third party consents: , (1i) necessary, proper, proper or advisable to consummate the transactions contemplated by this Agreement or (ii) required to be disclosed in the Company Disclosure Schedule or the Parent Disclosure Schedule, as applicable; provided, however, that neither the Company nor any of its Subsidiaries shall commit to the payment of any fee, penalty or other consideration in excess of $10,000 or make any other material concession, waiver or amendment under any Contract in connection with obtaining any consent without the prior written consent of Parent.
(c) Without limiting the generality of anything contained in this Section 5.4, each party hereto shall: (i) give the other parties prompt notice of the making or commencement of any request, inquiry, investigation, action or legal proceeding by or before any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement; (2ii) otherwise required under keep the other parties informed as to the status of any contractssuch request, licensesinquiry, leasesinvestigation, action or legal proceeding; and (iii) promptly inform the other agreements parties of any communication to or from the Federal Trade Commission, the Department of Justice or any other Governmental Entity regarding the Offer or the Merger. Each party hereto will consult and cooperate with the other parties and will consider in good faith the views of the other parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with the Offer, the Merger or any of the other transactions contemplated by this Agreement. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation, action or legal proceeding, each party hereto will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation, action or legal proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation, action or legal proceeding.
(d) Each of Parent, the Purchaser and the Company shall (i) cooperate and coordinate with the other in the making of any filings or submissions that are required to be made under any applicable Competition Laws or requested to be made by any Governmental Entity in connection with the transactions contemplated by this Agreement, (ii) supply the other or its outside counsel with any information that may be required or requested by any Governmental Entity in connection with such filings or submissions, (iii) supply any additional information that may be required or requested by the Federal Trade Commission, the Department of Justice or other Governmental Entities in which any such filings or submissions are made under any applicable Competition Laws as promptly as practicable, (iv) use their commercially reasonable efforts to cause the expiration or termination of the applicable waiting periods under any applicable Competition Laws as soon as reasonably practicable and (v) take, or cause to be taken, all actions and do, or cause to be done, all things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby. In furtherance and not in limitation of the covenants of the parties contained in this Section 5.4, if any objections are asserted with respect to the transactions contemplated hereby under any Competition Law or if any suit is instituted (or threatened to be instituted) by the Federal Trade Commission, the Department of Justice or other Governmental Entities or any private party challenging any of the transactions contemplated hereby as violative of any Competition Law or that would otherwise prevent materially impede or materially delay the consummation of the transactions contemplated hereby; , each of Parent, the Purchaser and the Company shall use its commercially reasonable efforts to resolve any such objections or suits so as to permit consummation of the transactions contemplated by this Agreement, including (3i) required proposing, negotiating, committing to prevent and effecting, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any non-material assets or business of the Company or its Subsidiaries taken as a material adverse effect affecting either of their respective business whole and operations from occurring prior to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE otherwise taking or committing to take any actions that after the Closing would not materially limit the freedom of action of Parent or its Subsidiaries (including the Surviving Corporation) with respect to, or its ability to retain, one or more of its or its Subsidiaries’ (including the Surviving Corporation’s) businesses, material product lines or assets, in each case as may be required in order to resolve such objections or suits by the Expiration Date; provided, however, that neither the Company nor any of its Subsidiaries nor Parent nor any of its Subsidiaries or affiliates shall be obligated to, and TetriDyn the Company shall use and cause their respective subsidiaries not without Parent’s prior written consent, become subject to, or consent or agree to use all reasonable efforts or otherwise take any action with respect to, any requirement, condition, understanding, agreement or order of a Governmental Entity to obtain release sell, hold separate, dispose of any guarantees by any owner of TetriDyn of any third-party indebtedness assets or obligation that will not be paidconduct or change its business unless such requirement, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, understanding, agreement or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that order is binding on the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it Company or any of its subsidiaries; Subsidiaries or (iv) any event on Parent or condition that might reasonably be expected to cause any of its representationsSubsidiaries or affiliates, warrantiesas the case may be, covenantsonly in the event the Closing occurs.
(e) Subject to the obligations under Section 5.4(d), (i) if any Governmental Entity issues an order, decree, injunction or ruling or takes any other action enjoining or otherwise preventing the consummation of the Offer or the Merger, or agreements set forth herein not (ii) if any other administrative or judicial action or proceeding is instituted (or threatened to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitrationinstituted) by a Governmental Entity or private party that challenges, or adversary proceeding seeks to prohibit, prevent or restrict the consummation of the Offer, the Merger or any other matter that is material transaction contemplated by this Agreement, or any other agreement contemplated hereby, then (x) at their sole cost and expense, Parent and the Purchaser shall (1) use commercially reasonable efforts to have vacated, lifted, reversed or overturned any such order, decree, injunction or ruling and (2) defend, contest and resist any such action or proceeding, and (y) each of Parent, the Purchaser and the Company shall cooperate in a commercially reasonable manner with each other in connection therewith.
(f) Notwithstanding anything to the business and contrary in this Agreement, nothing contained in this Agreement shall give Parent or the Purchaser, directly or indirectly, the right to control or direct the operations of the subject entity, if in existence on Company prior to the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life consummation of the matter or Offer. Prior to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life consummation of the matterOffer, the Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its operations.
Appears in 3 contracts
Samples: Merger Agreement, Merger Agreement (MAP Pharmaceuticals, Inc.), Merger Agreement (Allergan Inc)
Appropriate Action; Consents; Filings. Section 5.7.1 The Company and Parent shall use their reasonable best efforts to (a) OTE and TetriDyn shall use, and shall cause each of their respective subsidiaries to use, all reasonable efforts to: (iA) take, or cause to be taken, all appropriate action, and do, or cause to be done, all things necessary, proper, proper or advisable under any applicable Laws Law or otherwise to consummate and make effective the transactions contemplated by this Agreement; Agreement and each Ancillary Agreement as promptly as practicable, (iiB) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, authorizations or orders required to be obtained or made by OTE Parent or TetriDyn the Company or any subsidiary of their respective Subsidiaries, or to avoid any action or proceeding by any Governmental Entity, in connection with the authorization, execution, execution and delivery of this Agreement and each Ancillary Agreement and the consummation of the transactions contemplated herebyherein and therein, including including, without limitation, the Merger; , and (iiiC) make all necessary filings, and thereafter make any other required submissions, respecting with respect to this Agreement and each Ancillary Agreement and the Merger required under: under (1x) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; Laws and (2y) any other applicable Law; provided thatprovided, OTE that Parent and TetriDyn the Company shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party non-filing party and its advisers advisors prior to such filings filing and, if requested, shall to accept all reasonable additions, deletions, deletions or changes suggested in connection therewiththerewith and, provided, however, that nothing in this Section 5.7.1 shall require Parent to agree to (AA) the imposition of conditions, (BB) the requirement of divestiture of assets or property or (CC) the requirement of expenditure of money by Parent or the Company to a third party in exchange for any such consent. OTE The Company and TetriDyn Parent shall furnish to each other all information required for any application or other filing to be made pursuant to under the rules and regulations of any applicable Law (including all information required to be included in the Proxy Statement) in connection with the transactions contemplated by this Agreement and each Ancillary Agreement.
Section 5.7.2 The Company and Parent shall give (b) OTE and TetriDyn agree to cooperate respecting, to or shall cause each of their respective subsidiaries Subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanentgive) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use use, and cause their respective subsidiaries Subsidiaries to use use, all reasonable efforts to obtain any third-third party consents: , (1A) necessary, proper, proper or advisable to consummate the transactions contemplated by in this Agreement and each Ancillary Agreement; , (2B) otherwise required under any contractsto be disclosed in the Company Disclosure Schedule or the Parent Disclosure Schedule, licensesas applicable, leases, or other agreements in connection with the consummation of the transactions contemplated hereby; or (3C) required to prevent a material adverse effect affecting either of their respective business and operations Company Material Adverse Effect from occurring prior to or after the Effective Time or a TetriDyn Parent Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or (D) otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth referenced in subsection 5.12(c).
(iii) Section 6.1.3 or Section 6.2.3. In the event that any Party either party shall fail to obtain any third-third party consent described in subsection (c)(ii) abovethe first sentence of this Section 5.7.2, such Party party shall use all reasonable efforts, and shall take any such actions reasonably requested by any the other Partyparty hereto, to limit the minimize any adverse effect upon OTE the Company and TetriDynParent, their respective Subsidiaries, and their respective subsidiaries and their respective businessesbusinesses resulting, resulting or that which could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn Section 5.7.3 From the date of this Agreement until the Effective Time, the Company shall promptly notify the other of: (i) any material change Parent in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) writing of any pending or, to the knowledge of the Company, threatened action, suit, arbitration or other proceeding or investigation by any Governmental Entities respecting its business Entity or any other person (A) challenging or seeking material damages in connection with the Merger or the transactions contemplated hereby; conversion of Company Common Stock or Company Series B Preferred Stock into the Merger Consideration pursuant to the Merger or (iiiB) seeking to restrain or prohibit the institution consummation of the Merger or otherwise limit the threat right of material litigation involving it Parent or any Parent Subsidiary to own or operate all or any portion of its subsidiaries; the businesses or (iv) assets of the Company or any event or condition that might Company Subsidiary, which in either case would reasonably be expected to cause any of its representations, warranties, covenants, have a Company Material Adverse Effect prior to or agreements set forth herein not to be true and correct at after the Effective Time or a Parent Material Adverse Effect after the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matter.
Appears in 3 contracts
Samples: Merger Agreement (Arthrocare Corp), Merger Agreement (Medical Device Alliance Inc), Merger Agreement (Arthrocare Corp)
Appropriate Action; Consents; Filings. (a) OTE Upon the terms and TetriDyn shall usesubject to the conditions set forth in this Agreement, the Company Parties and each of the Parent Parties shall, and shall cause each of their respective subsidiaries to useSubsidiaries to, all use commercially reasonable efforts to: (i) to take, or cause to be taken, all appropriate actionactions, and to do, or cause to be done, and to assist and cooperate with each other Party in doing, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise pursuant to any Contract to consummate and make effective effective, as promptly as practicable, the transactions contemplated by this Agreement; (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, or orders required to be obtained or made by OTE or TetriDyn or any subsidiary in connection with the authorization, execution, and delivery of this Agreement Mergers and the consummation of the transactions contemplated hereby, including the Merger; (iii) make all necessary filings, and thereafter make any other required submissions, respecting this Agreement and the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing (i) taking all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree actions necessary to take all actions, including cause the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition conditions to the granting of Closing set forth in Article VIII to be satisfied, (ii) preparing and filing any approvals applications, notices, registrations and requests as may be required or advisable to be filed with or submitted to any Governmental Authority in order to permit consummate the transactions contemplated by this Agreement, (iii) obtaining all necessary or advisable actions or nonactions, waivers, consents and approvals from Governmental Authorities or other Persons necessary in connection with the consummation of the Merger Mergers and the other transactions contemplated by this Agreement and the making of all necessary or advisable registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be required necessary or advisable to avoid, lift, vacateobtain an approval or waiver from, or reverse to avoid an action or proceeding by, any legislative Governmental Authority or other Persons necessary in connection with the consummation of the Mergers and the other transactions contemplated by this Agreement, (iv) defending any lawsuits or other legal proceedings, whether judicial action or administrative, challenging this Agreement or the consummation of the Mergers or the other transactions contemplated by this Agreement, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed, the avoidance of each and every impediment under any antitrust, merger control, competition or trade regulation Law that would otherwise cause may be asserted by any condition Governmental Authority with respect to the Mergers so as to enable the Closing not to be satisfiedoccur as soon as reasonably possible, and (v) executing and delivering any additional instruments necessary or advisable to consummate the Mergers and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement; provided, howeverthat no Party will have any obligation (A) to propose, negotiate, commit to or effect, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of such Party, any of its Subsidiaries (including Subsidiaries of Parent after the Closing) or their Affiliates or (B) otherwise to take or commit to take any actions that would limit the freedom of such Party, its Subsidiaries (including Subsidiaries of Parent after the Closing) or their Affiliates with respect to, or their ability to retain, one or more of their businesses, product lines or assets. Nothing in no event this Section 7.6 or any other provision of this Agreement shall OTE require Parent or any Affiliates of Parent (including Blackstone Inc. (“Blackstone”)) to agree or otherwise be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effectaction, and TetriDyn shall not be required to take including any action that would with respect to any Affiliates of Parent (including Blackstone, any investment funds or could reasonably be expected investment vehicles affiliated with, or managed or advised by, Blackstone or its Affiliates, or any portfolio company (as such term is commonly understood in the private equity industry) or investment of Blackstone or of any such investment fund or investment vehicle), or any interest therein (in each case other than with respect to have a TetriDyn Material Adverse Effectthe Parent Parties and their Subsidiaries (including, following the Closing, the Surviving Entities and their Subsidiaries)).
(ib) OTE In connection with and TetriDyn without limiting the foregoing Section 7.6(a), each of the Parties shall give (or shall cause their respective Subsidiaries to give) any notices to third parties, and use each of the Parties shall use, and cause each of their respective subsidiaries Subsidiaries to use all use, its commercially reasonable efforts to obtain any third-party consents: (1) consents that are necessary, proper, proper or advisable to consummate the Mergers and the other transactions contemplated by this Agreement; (2) otherwise required under any contracts. Each of the Parties will, licensesand shall cause their respective Subsidiaries to, leases, or furnish to the other agreements such necessary information and reasonable assistance as the other may request in connection with the consummation preparation of any required applications, notices, registrations and requests as may be required or advisable to be filed with any Governmental Authority and will cooperate in responding to any inquiry from a Governmental Authority, including promptly informing the other Party of such inquiry, consulting in advance before making any presentations or submissions to a Governmental Authority, and supplying each other with copies of all material correspondence, filings or communications between such Party and any Governmental Authority with respect to this Agreement. To the extent reasonably practicable, the Parties or their Representatives shall have the right to review in advance and each of the Parties will consult the others on, all the information relating to the other and each of their Affiliates that appears in any filing made with, or written materials submitted to, any Governmental Authority in connection with the Mergers and the other transactions contemplated hereby; or (3) required to prevent a material adverse effect affecting either of by this Agreement, except that confidential competitively sensitive business information may be redacted from such exchanges. To the extent reasonably practicable, no Party shall, nor shall they permit their respective business Representatives to, participate independently in any meeting or engage in any substantive conversation with any Governmental Authority in respect of any filing, investigation or other inquiry in connection with the Mergers and operations from occurring the other transactions contemplated by this Agreement without giving the other Parties prior notice of such meeting or conversation and, to the Effective Time extent permitted by applicable Law, without giving the other Parties the opportunity to attend or a TetriDyn Material Adverse Effect from occurring after the Effective Timeparticipate (whether by telephone or in person) in any such meeting with such Governmental Authority.
(iic) OTE Notwithstanding anything to the contrary in this Agreement, in connection with obtaining any approval or consent from any Person with respect to the Mergers and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) by this Agreement, without the institution or prior written consent of Parent, none of the threat of material litigation involving it Company or any of its subsidiaries; Subsidiaries or (iv) any event Representatives shall, and none of the Parties or condition that might reasonably be expected to cause any of its representationstheir respective Subsidiaries or Representatives shall be obligated to, warrantiespay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, covenants, make any accommodation or agreements set forth herein not commitment or incur any liability or other obligation to be true and correct at such Person. Subject to the Effective Time. As used in the preceding immediately foregoing sentence, “material litigation” means any case, arbitration, the Parties shall cooperate with respect to reasonable accommodations that may be requested or adversary proceeding or other matter that is material appropriate to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matterobtain such consents.
Appears in 3 contracts
Samples: Merger Agreement (American Campus Communities Inc), Merger Agreement (American Campus Communities Inc), Merger Agreement (Preferred Apartment Communities Inc)
Appropriate Action; Consents; Filings. (a) OTE Subject to the terms and TetriDyn conditions of this Agreement, the Company, Buyer and Parent shall use, and shall cause each of use their respective subsidiaries reasonable best efforts to use, all reasonable efforts to: (i) take, or cause to be taken, all appropriate action, and do, or cause to be done, all things necessary, proper, proper or advisable under applicable Laws or otherwise to consummate the Offer, the Closing and make effective the Post-Closing Reorganization (including the actions and transactions contemplated by this Agreement; the Stockholder Approvals) as promptly as practicable, (ii) obtain from any Governmental Entities any consentsthe Company Required Approvals; provided that Buyer, licenses, permits, waivers, approvals, authorizations, or orders required to be obtained or made by OTE or TetriDyn or any subsidiary in connection with the authorization, execution, and delivery of this Agreement Parent and the consummation of the transactions contemplated hereby, including the Merger; (iii) make all necessary filings, and thereafter make any other required submissions, respecting this Agreement and the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn Company shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party non-filing party and its advisers advisors prior to such filings andfiling, if requested, shall accept and incorporating all reasonable additions, deletions, deletions or changes suggested by the other party in connection therewith. OTE Buyer, Parent and TetriDyn the Company shall furnish to each other all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law Laws in connection with the transactions contemplated by this Agreement.
(b) OTE Each of Buyer, Parent and TetriDyn agree the Company shall give (or shall cause its respective Subsidiaries to cooperate respectinggive) any required notices to third parties, and use, and cause its respective Subsidiaries to use, their reasonable best efforts to obtain the third party consents listed on Schedule 7.01(b).
(c) From the date of this Agreement until the Closing, each party shall promptly notify the other party in writing of any pending or, to cause each the knowledge of their respective subsidiaries to cooperate respectingthe first party, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, threatened Action or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of investigation by any Governmental Entity that is Authority or any other Person (i) challenging or seeking material damages in effect connection with the Offer, the Closing or the Post-Closing Reorganization (including the actions and that restricts, prevents, transactions contemplated by the Stockholder Approvals) or prohibits (ii) seeking to restrain or prohibit the consummation of the Merger Offer, the Closing or the Post-Closing Reorganization (including the actions and transactions contemplated by the Stockholder Approvals) or otherwise limit the right of Buyer or Parent or, to the knowledge of such party, Subsidiaries of Buyer or Parent to own or operate all or any portion of the businesses or assets of the Company or its Subsidiaries.
(d) Each party shall use its reasonable best efforts to file the appropriate “Notification and Report Form” pursuant to the HSR Act with respect to the transactions contemplated hereby as promptly as the parties agree is advisable after the date hereof and, in any event, within 15 days after the date hereof, unless the parties mutually agree to a later date, and to supply promptly any additional information and documentary material that may be requested pursuant to the HSR Act. In addition, each party shall promptly, and prior to the expiration of any legal deadline, make any other filing that may be required under any other applicable Antitrust Laws. Each party shall bear its respective filing fees associated with the HSR filings and any other filings required under any other applicable Antitrust Laws. Buyer, Parent and the Company shall, and shall instruct their respective counsel to, cooperate with each other and use their reasonable best efforts, in consultation with one another, to facilitate and expedite the HSR process and the identification and resolution of any issues relating to the HSR filings and any other filings under any other applicable Antitrust Laws (including, meeting (either in person or by telephone) with the other party as promptly as practicable after the date hereof to determine when to file the appropriate “Notification and Report Form” pursuant to the HSR Act, keeping each other appropriately informed of, and promptly providing each other copies of, all communications from and to personnel of the reviewing antitrust authority, conferring regularly with each other regarding appropriate contacts with and response to personnel of said antitrust authority, including attending meetings, promptly furnishing to the other such information and assistance as the other may reasonably request in connection with its preparation of any notifications or other submissions to Governmental Authorities, and permitting the other party to review, and incorporating the other party’s reasonable comments, in any communication to be given by it to any Governmental Authority with respect to obtaining the necessary approvals for the transactions contemplated by this Agreement) and, consequently, facilitate expiration of the applicable HSR Act waiting period and obtain clearance under any other applicable Antitrust Laws at the earliest practicable date. In all cases Buyer shall be entitled to direct the antitrust defense of the transactions contemplated by this Agreement in any investigation or litigation by, or negotiations with, any Governmental Authority or other Person relating to the Offer or regulatory filings under applicable Antitrust Laws, including any communications with any Governmental Authority relating to any contemplated or proposed Divestiture Action. Subject to applicable legal limitations and the instructions of any Governmental Authority, the parties agree that they shall consult with each other in advance of and not participate in any meeting or discussion expected to address substantive matters related to the transactions contemplated hereby, either in person or by telephone, with any Governmental Authority in connection with the proposed transactions unless, to the extent not prohibited by such Governmental Authority, it gives the other party the opportunity to attend and observe; provided that, Buyer and Parent shall have no obligation to include the Company in any meeting or discussion with any Governmental Authority relating to any contemplated or proposed Divestiture Action, only, in each case, following receipt of the prior consent of the Special Committee of the Board; provided, however, that Buyer or Parent shall provide the Company with a summary of any such meeting or discussion.
(e) Notwithstanding anything in this Section 7.01 to the contrary, in connection with obtaining clearance or any approval of any antitrust authority under the HSR Act or any other Antitrust Laws or the expiration of any waiting period thereunder, Buyer and Parent shall not, and shall not be required to cause any of their respective Subsidiaries to, (i) sell or otherwise dispose of, or hold separate or agree to sell or otherwise dispose of, assets, categories of assets or businesses; (ii) terminate existing relationships, contractual rights or obligations; (iii) terminate any venture or other arrangement; (iv) create any relationship, contractual right or obligation or (v) effectuate any other change or restructuring (or, in each case, enter into agreements or stipulate to the entry of an order or decree or file appropriate applications with any antitrust authority in connection with any of the foregoing) (each a “Divestiture Action”). At the written request of Buyer, the Company shall, and shall cause its Subsidiaries to, consummate a Divestiture Action in connection with obtaining clearance from or approval of any Governmental Authority under applicable Antitrust Laws; provided that, without the consent of the Company, no such Divestiture Action will be effective prior to the Closing. Subject to Buyer’s right to direct the antitrust defense of the transactions contemplated by this Agreement, including by vigorously pursuing all available avenues (i) in the event that any action is threatened or instituted challenging the Offer as violative of administrative the HSR Act or any other Antitrust Laws, the Company, Buyer and judicial appeal Parent shall use their reasonable best efforts to avoid or resolve such action, and legislative action. OTE and TetriDyn also agree (ii) in the event that any permanent or preliminary injunction or other order is entered or becomes reasonably foreseeable to take all actionsbe entered in any proceeding that would make consummation of the transactions contemplated hereby, including the disposition Offer, in accordance with the terms of assets this Agreement unlawful or the withdrawal from doing business in particular jurisdictionsthat would restrain, required by regulatory authorities as a condition to the granting of any approvals required in order to permit enjoin or otherwise prevent or materially delay the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable to consummate the transactions contemplated by this Agreement; , the Company, Buyer and Parent shall use their reasonable best efforts to vacate, modify or suspend such injunction or order so as to permit such consummation. The parties shall take reasonable efforts to share information protected from disclosure under the attorney-client privilege, attorney work product immunity, joint defense privilege or any other privilege pursuant to this section so as to preserve any applicable privilege.
(2f) otherwise required under The Company, Buyer and Parent shall not take any contracts, licenses, leases, or other agreements in connection action with the intention to hinder or delay the obtaining of clearance or any necessary approval of any antitrust authority under the HSR Act or any other Antitrust Laws or the expiration of the required waiting period thereunder; provided that Buyer may withdraw the filing of its Notification and Report Form pursuant to the HSR Act if, in the good faith judgment of the board of directors of Buyer, such withdrawal is unlikely to delay in any material respect consummation of the transactions contemplated hereby; or (3) required to prevent a material adverse effect affecting either of their respective business and operations from occurring prior to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective TimeOffering.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matter.
Appears in 3 contracts
Samples: Share Purchase Agreement (Aptalis Holdings Inc.), Share Purchase Agreement (Eurand N.V.), Share Purchase Agreement (Axcan Intermediate Holdings Inc.)
Appropriate Action; Consents; Filings. (a) OTE Parent and TetriDyn the Company shall use, and shall cause each of use their respective subsidiaries reasonable best efforts to use, all reasonable efforts to: (i) take, or cause to be taken, all appropriate action, and do, or cause to be done, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise to consummate and make effective the transactions contemplated by this Agreement; Agreement and the Transaction Documents, including the satisfaction of the conditions to the obligations of the other party contained in Article VII, (ii) obtain any consents of Third Parties necessary, proper or advisable to consummate and make effective the transactions contemplated by this Agreement and the Transaction Documents, including any consents of experts required in connection with any filings under the Securities Act or Exchange Act, or required as a result of the transactions contemplated by this Agreement and the Transaction Documents pursuant to the Company Leases and the Parent Leases to which such party or its Subsidiaries are party, (iii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, authorizations or orders required to be obtained or made by OTE or TetriDyn Parent, the Company or any subsidiary in connection with the authorizationof their respective Subsidiaries, execution, and delivery of this Agreement and the consummation of the transactions contemplated hereby, including the Merger; (iiiiv) make all necessary filings, and thereafter make any other required submissions, respecting with respect to this Agreement Agreement, the Transaction Documents and the Merger required under: under (1A) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; , (B) the HSR Act and antitrust and competition Laws of any other applicable jurisdiction and (2C) any other applicable Law; provided thatLaw and (v) take any action reasonably necessary to defend vigorously, OTE lift, mitigate or, rescind the effect of any litigation or administrative proceeding involving any Governmental Entity or Person adversely affecting this Agreement, the Transaction Documents or the transactions contemplated by this Agreement or the Transaction Documents until receipt of a final order by a court of competent jurisdiction permanently enjoining the transaction as to which all available applications for review have been taken (a “Final Order”). Without limitation of the foregoing, neither Parent nor the Company shall unreasonably withhold or delay its consent to any extension of any waiting period under the HSR Act or any other antitrust or merger control Laws or any proposed resolution or settlement or other agreement with any Governmental Entity, including any agreement with the Federal Trade Commission, the Antitrust Division of the United States Department of Justice, or the offices of any state Attorney General (together the “Antitrust Authorities”) not to consummate the transactions contemplated by this Agreement or the Transaction Documents. Parent and TetriDyn the Company shall cooperate with each other in connection with the making of all such filings, filings or submissions referenced in the preceding sentence (including providing copies of all such documents to the other Party non-filing party and its advisers advisors prior to such filings filing and, if requested, shall to accept all reasonable additions, deletions, deletions or changes suggested in connection therewith. OTE ) and TetriDyn shall furnish all information required for in connection with resolving any application investigation or other filing to be made pursuant to the rules and regulations inquiry of any applicable Law Governmental Entity with respect to any such filing or submission. Parent and the Company shall have the right to review in advance, and each shall consult the other on, all the information relating to Parent and its Subsidiaries, or the Company and its Subsidiaries, as the case may be, that appears in any filing made with, or written materials submitted to, any Third Party and/or any Governmental Entity in connection with the Merger and the other transactions contemplated by this AgreementAgreement and the Transaction Documents. Each of Parent and the Company shall promptly notify and provide a copy to the other party of any written communication received from any Governmental Entity with respect to any filing or submission or with respect to the Merger and the other transactions contemplated by this Agreement and the Transaction Documents. Each of Parent and the Company shall give the other reasonable prior notice of any proposed understanding, undertaking or agreement with, and, to the extent reasonably practicable, any communication with, any Governmental Entity regarding any such filing or any such transaction. To the extent reasonably practicable, each of the Company and Parent shall give the other prior notice of any meeting or substantive conversation by such party or its Representatives with any Governmental Entity in respect of any such filing, investigation or other inquiry, and, unless prohibited by such Governmental Entity, the opportunity to attend or participate. The parties to this Agreement will consult and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party to this Agreement in connection with proceedings under or related to the HSR Act or competition Laws. The Company and Parent may, as each deems reasonably necessary, designate any competitively sensitive information provided to the other party under this Section 6.4(a) as “outside counsel only”, and such information shall be given only to such requesting party’s outside counsel. In addition, the Company, Parent and their respective stockholders may redact any information from such documents shared with the other party or its counsel that is not pertinent to the subject matter of the filing or submission.
(b) OTE and TetriDyn agree to cooperate respectingFrom the date of this Agreement until the Effective Time, each party shall promptly notify the other party in writing of any pending or, to cause each the Knowledge of their respective subsidiaries to cooperate respectingParent or the Company, and to use all reasonable efforts vigorously to contest and resist any as appropriate, threatened action, including legislativesuit, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, arbitration or other order (whether temporary, preliminary, proceeding or permanent) (an “Order”) of investigation by any Governmental Entity that is or any other Person (i) challenging or seeking damages in effect and that restricts, prevents, connection with the Merger or prohibits (ii) seeking to restrain or prohibit the consummation of the Merger or otherwise limit the right of Parent or its Subsidiaries to own or operate all or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation portion of the Merger businesses or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable to consummate the transactions contemplated by this Agreement; (2) otherwise required under any contracts, licenses, leases, or other agreements in connection with the consummation assets of the transactions contemplated hereby; Company or (3) required to prevent a material adverse effect affecting either of their respective business and operations from occurring prior to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Timeits Subsidiaries.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matter.
Appears in 3 contracts
Samples: Merger Agreement (Amc Entertainment Inc), Merger Agreement (LCE Mexican Holdings, Inc.), Merger Agreement (Marquee Holdings Inc.)
Appropriate Action; Consents; Filings. (a) OTE Subject to the terms and TetriDyn shall useconditions of this Agreement, Target and shall cause each of their respective subsidiaries to use, all reasonable efforts to: Parent shall:
(i) take, or cause use commercially reasonable efforts to be taken, all appropriate action, coordinate and do, or cause to be done, all things necessary, proper, or advisable under applicable Laws or otherwise to consummate and make effective the transactions contemplated by this Agreementcooperate with one another in connection with: (a) any Other Filings; (iib) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, determining all filings and notifications or orders Approvals required to be made or obtained under any of the Target Scheduled Contracts or made by OTE or TetriDyn or any subsidiary applicable Laws in connection with the authorization, execution, execution and delivery of this Agreement and each of the Ancillary Documents and the consummation of the Merger and the other transactions contemplated hereby and thereby; (c) timely making all such filings and notifications and timely seeking to obtain all such Approvals, and furnishing information required in connection therewith or with the Readmission Document or any Other Filings; and (d) as promptly as practicable respond to any request for information including without limitation any request for additional information and documentary materials from any Governmental Authority;
(ii) to the extent practicable, promptly notify each other of any communication from any Governmental Authority with respect to this Agreement or the transactions contemplated hereby, including and permit the Merger; other party to review in advance any proposed written communication to any Governmental Authority;
(iii) make not agree to participate in any meeting with any Governmental Authority in respect of any filings, investigation or other inquiry with respect to this Agreement or the transactions contemplated hereby unless it consults with the other party in advance and, to the extent permitted by such Governmental Authority, gives the other party the opportunity to attend and participate, in each case to the extent practicable;
(iv) furnish the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between Target and the Target Representatives or Parent and the Parent Representatives, as the case may be, on the one hand, and any Governmental Authority or members of their respective staffs on the other hand, with respect to this Agreement or the transactions contemplated hereby (excluding documents and communications which are subject to preexisting confidentiality agreements or to attorney client privilege);
(v) furnish the other party with such necessary information (including all information required to be included in the Readmission Document and the Information and Offering Memorandum) and reasonable assistance as such other party and its Representatives may reasonably request in connection with their preparation of necessary filings, and thereafter make any other required submissions, respecting this Agreement registrations or submissions of information (including the Readmission Document and the Merger required under: (1Information and Offering Memorandum) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and to any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other Governmental Authority in connection with the making of all such filings, including providing copies of all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, this Agreement or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.hereby;
(bvi) OTE and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all its commercially reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable to consummate the transactions contemplated by this Agreement; (2) otherwise required under any contracts, licenses, leases, or other agreements Agreement and the Ancillary Documents in connection accordance with the consummation terms and conditions hereof and thereof, including obtaining the approval of all Governmental Agencies and Persons necessary to consummate the transactions contemplated hereby; or (3) required to prevent a material adverse effect affecting either of their respective business by this Agreement and operations from occurring prior to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Time.Ancillary Documents;
(iivii) OTE not agree with any Governmental Agency or Person to modify any of the terms or conditions of this Agreement or the Ancillary Documents or any information contained in the Information and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release Offering Statement or Readmission Document without the prior written consent of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).other party; and
(iiiviii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify the other of: party in writing of (i) any material change in its current or future business, assets, liabilities, condition (financial condition, or otherwise) or its results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation any Claim involving it Parent, Target or any of its subsidiariestheir Subsidiaries; or (iviii) the occurrence or non-occurrence of any event or condition or the discovery of any matter that might would reasonably be expected to cause (a) any of its representationsthe representations or warranties of Target, warranties, covenants, the Securityholders or agreements Parent set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means ; (b) any case, arbitration, or adversary proceeding or other matter that is material condition to the business obligations of any party to effect the Merger and operations the other transactions contemplated by this Agreement and the Ancillary Documents not to be satisfied; or (c) the failure of any party to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it pursuant to this Agreement or any Ancillary Document; provided, however, that the subject entity, if in existence on delivery of any notice pursuant to this Section shall not cure any breach of any representation or warranty requiring disclosure of such matter prior to the date hereof, hereof or for which otherwise limit or affect the legal fees and other costs remedies available hereunder to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matterparty receiving such notice.
Appears in 3 contracts
Samples: Merger Agreement (Research Pharmaceutical Services, Inc.), Merger Agreement (Research Pharmaceutical Services, Inc.), Merger Agreement (Research Pharmaceutical Services, Inc.)
Appropriate Action; Consents; Filings. (a) OTE The Company, Parent and TetriDyn Purchaser shall use, and shall cause each of use their respective subsidiaries reasonable best efforts to use, all reasonable efforts to: (i) take, or cause to be taken, all appropriate action, action and do, or cause to be done, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise to consummate and make effective the transactions contemplated by this Agreement; Agreement as promptly as practicable, (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, authorizations or orders required to be obtained by Parent, CPS or made by OTE or TetriDyn the Company or any subsidiary of their respective Subsidiaries, or to avoid any action or proceeding by any Governmental Entity (including, without limitation, those in connection with the HSR Act), in connection with the authorization, execution, execution and delivery of this Agreement and the consummation of the transactions contemplated herebyherein, including without limitation the Offer and the Merger; , and (iii) as promptly as reasonably practicable, and in any event within ten (10) Business Days after the date hereof, make all necessary filings, and thereafter make any other required submissions, respecting and pay any fees due in connection therewith, with respect to this Agreement Agreement, the Offer and the Merger required under: under (1A) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; , (B) the HSR Act and (2C) any other applicable Law; provided thatprovided, OTE that the Company and TetriDyn Parent shall cooperate with each other in connection with (x) preparing and filing the Offer Documents, the Schedule 14D-9, the Information Statement and any Other Filings, (y) determining whether any action by or in respect of, or filing with, any Governmental Entity is required, in connection with the consummation of the Offer or the Merger and (z) seeking any such actions, consents, approvals or waivers or making of all any such filings. The Company, including providing copies of all such documents to the other Party Parent and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn Purchaser shall furnish to each other all information about such party required for any application or other filing to be made pursuant to under the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE The Company and TetriDyn agree to cooperate respecting, to Parent shall give (or shall cause each of their respective subsidiaries Subsidiaries and instruct CPS to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanentgive) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use use, and cause their respective subsidiaries Subsidiaries or instruct CPS to use all use, their reasonable best efforts to obtain any third-third party consents: , (1i) necessary, proper, proper or advisable to consummate the transactions contemplated by this Agreement; , (2ii) otherwise required under any contracts, licenses, leasesto be disclosed in the Company Disclosure Schedule, or other agreements in connection with the consummation of the transactions contemplated hereby; or (3iii) required to prevent a material adverse effect affecting either of their respective business and operations from occurring prior to the Effective Time or a TetriDyn Company Material Adverse Effect from occurring prior to or after the Effective Time; provided, however that the Company and Parent shall coordinate and cooperate in determining whether any actions, consents, approvals or waivers are required to be obtained from parties to any Company Material Contracts in connection with consummation of the Offer or the Merger and seeking any such actions, consents, approvals or waivers.
(c) Without limiting the generality of anything contained in this Section 5.5, each party hereto shall: (i) give the other parties prompt notice of the making or commencement of any request, inquiry, investigation, action or legal proceeding by or before any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement; (ii) OTE and TetriDyn shall use and cause their respective subsidiaries keep the other parties reasonably informed as to use all reasonable efforts to obtain release the status of any guarantees by any owner of TetriDyn of any third-party indebtedness such request, inquiry, investigation, action or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG legal proceeding; and EIDC as set forth in subsection 5.12(c).
(iii) In promptly inform the event that other parties of any Party shall fail material communication to obtain any third-party consent described in subsection (c)(ii) aboveor from the Federal Trade Commission, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by the Department of Justice or any other PartyGovernmental Entity regarding the Offer or the Merger. Each party hereto will consult and cooperate with the other parties and will consider in good faith the views of the other parties in connection with any filing, to limit analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with the adverse effect upon OTE and TetriDynOffer, and their respective subsidiaries and their respective businesses, resulting the Merger or that could reasonably be expected to result after any of the Effective Time, from the failure to obtain such consentother transactions contemplated by this Agreement.
(d) OTE and TetriDyn shall promptly notify Notwithstanding anything to the other of: contrary in this Agreement, in connection with obtaining any approval or consent from any Person with respect to the Offer or the Merger, (i) without the prior written consent of Parent, none of the Company, any material change in its current Company Subsidiary or future businessCPS shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, assetsmake any commitment or incur any liability or other obligation due to such Person, liabilities, financial condition, or results of operations; and (ii) neither Parent nor the Purchaser shall be required to pay or commit to pay to such Person whose approval or consent is being solicited any complaintscash or other consideration, investigationsmake any commitment or incur any liability or other obligation.
(e) Notwithstanding anything to the contrary in this Agreement, in connection with the receipt of any necessary approvals or clearances of a Governmental Entity (including under the HSR Act), neither Parent nor the Company (nor any of their respective Subsidiaries or affiliates) shall be required to sell, hold separate or otherwise dispose of or conduct their business in a specified manner, or hearings (agree to sell, hold separate or communications indicating that otherwise dispose of or conduct their businesses in a specified manner, or enter into or agree to enter into a voting trust arrangement, proxy arrangement, “hold separate” agreement or arrangement or similar agreement or arrangement with respect to the same may be contemplated) assets, operations or conduct of their business in a specified manner, or permit the sale, holding separate or other disposition of, any Governmental Entities respecting its business assets of the Company or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matterCompany Subsidiaries.
Appears in 3 contracts
Samples: Merger Agreement, Merger Agreement (General Electric Co), Merger Agreement (Clarient, Inc)
Appropriate Action; Consents; Filings. (a) OTE The Company and TetriDyn Parent shall use, and shall cause each of their respective subsidiaries to use, all use commercially reasonable efforts to: to (i) take, or cause to be taken, all appropriate action, action and do, or cause to be done, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise to consummate and make effective effective, the Merger and the other Transactions, including transactions contemplated by this Agreement; under the Voting Agreements, as promptly as practicable, (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, authorizations or orders required or advisable to be obtained by Parent or made by OTE or TetriDyn the Company or any subsidiary of their respective Subsidiaries, or to avoid any action or proceeding by any Governmental Entity, in connection with the authorization, execution, execution and delivery of this Agreement and the consummation of the transactions contemplated herebyTransactions, including the Merger; (iii) cause the satisfaction of all conditions set forth in Article 6, (iv) vigorously defend all lawsuits or other legal, regulatory or other proceedings to which it is a party challenging or affecting this Agreement or the consummation of the Transactions, in each case until the issuance of a final, non-appealable order, (v) seek to have lifted or rescinded any injunction or restraining order which may adversely affect the ability of the parties to consummate the Transactions, in each case until the issuance of a final, non-appealable order, and (vi) (A) as promptly as practicable, and in any event within ten (10) Business Days after the date hereof, make or cause to be made an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to this Agreement and the Merger and (B) as promptly as practicable, and in any event within thirty (30) calendar days after the date hereof, make or cause to be made all necessary filingsand advisable applications and filings and/or engage with such Governmental Entity after consultation with the other party, and and, in each case, thereafter make any other required or advisable submissions, respecting this Agreement and pay any fees due in connection therewith; provided, that the Merger required under: (1) the Securities Act Company and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn Parent shall cooperate with each other in connection with determining whether any action by or in respect of, or filing with, any Governmental Entity is required or advisable in connection with the consummation of the Merger and seeking any such actions, consents, approvals or waivers or making of all any such filings, including providing copies of all such documents to the other Party . The Company and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn Parent shall furnish to each other all information required for any application or other filing to be made pursuant to under the rules and regulations of any applicable Law in connection with the transactions contemplated Transactions. Parent shall not pull and re-file any notification to any Governmental Entity or consent to any voluntary delay of the Closing at the behest of any Governmental Entity without first notifying and consulting with the Company. Each of Parent and the Company shall not, except as may be consented to in writing by this Agreement.
(b) OTE and TetriDyn agree to cooperate respectingthe other party, to cause each directly or indirectly through one or more of their respective subsidiaries to cooperate respectingits controlled affiliates, and to use all reasonable efforts vigorously to contest and resist take any action, including legislativeacquiring or making any investment in any corporation, administrativepartnership, limited liability company or other business organization or any division or assets thereof, that would reasonably be expected to cause a material delay in the satisfaction of the conditions contained in Article 6 or the consummation of the Merger. Without limiting this Section 5.7(a), Parent agrees to take, or judicial actioncause to be taken, any and all steps and to make, or cause to be made, any and all undertakings necessary to avoid or eliminate each and every impediment under any antitrust, merger control, competition, or trade regulation Law or any other Law applicable to the Company, any Company Subsidiary or the Merger that may be asserted by any Governmental Entity with respect to the Merger so as to enable the Effective Time and the Closing, respectively, to occur as promptly as practicable (and in any event, no later than the Extended Outside Date (as defined below)), including (A) proposing, negotiating, committing to, and to have vacatedeffecting, liftedby consent decree, reversedhold separate order, or overturned otherwise, the sale, divestiture, licensing or disposition of such assets or businesses of Parent or the Company or any decreeof their respective Subsidiaries, judgmentor (B) accepting any operational restrictions, including restrictions on the ability to change rates or charges or standards of service, or otherwise taking or committing to take actions that limit Parent’s or any Parent Subsidiary’s freedom of action with respect to, or its ability to retain or freely operate, any of the assets, properties licenses, rights, product lines, operations or businesses of Parent, the Company or any of their respective Subsidiaries (collectively, “Remedies”), in each case as may be required in order to avoid the entry of, or to effect the lifting or dissolution of, any injunction, temporary restraining order, or other order (whether temporaryin any suit or proceeding, preliminary, which would otherwise have the effect of preventing or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits delaying the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets Effective Time or the withdrawal from doing business Closing, as applicable, unless such Remedies, individually or in particular jurisdictionsthe aggregate, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn material and adverse impact on (1) the business, financial condition or results of operations of the Company and its Subsidiaries, taken as a whole, or (2) the reasonably expected benefits to Parent of completing the Merger, which reasonably expected benefits shall be measured at a level of those reasonably likely to have a material and adverse impact on the Company and its Subsidiaries, taken as a whole, and not at the level or measure of what would be reasonably likely to have a material and adverse impact on Parent and its Subsidiaries, taken as a whole (such a material and adverse impact, a “Material Adverse EffectImpact”).
(ib) OTE The Company and TetriDyn Parent shall give (or shall cause their respective Subsidiaries to give) any notices to third parties, and use use, and cause their respective subsidiaries Subsidiaries to use all use, commercially reasonable efforts to obtain any third-third party consents: consents (1i) necessary, proper, proper or advisable to consummate the Merger and the other Transactions, including transactions contemplated by this Agreement; (2) otherwise required under any contracts, licenses, leasesthe Voting Agreements, or other agreements (ii) disclosed in the Company Disclosure Schedule; provided, however that the Company and Parent shall coordinate and cooperate in determining whether any actions, consents, approvals or waivers are required to be obtained from parties to any Material Contracts in connection with the consummation of the transactions contemplated hereby; Merger and in seeking any such actions, consents, approvals or (3) required to prevent a material adverse effect affecting either of their respective business and operations from occurring prior to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) waivers. In the event that any Party either party shall fail to obtain any third-third party consent described in subsection (c)(ii) abovethis Section 5.7(b), such Party party shall use all commercially reasonable efforts, and shall take any such actions reasonably requested by any the other Partyparty hereto, to limit the minimize any adverse effect upon OTE the Company and TetriDynParent, their respective Subsidiaries, and their respective subsidiaries and their respective businessesbusinesses resulting, resulting or that which could reasonably be expected to result result, after the Effective Time, as applicable, from the failure to obtain such consent.
(dc) OTE and TetriDyn shall promptly notify Without limiting the other ofgenerality of anything contained in this Section 5.7, each party hereto shall: (i) give the other parties prompt notice of the making or commencement of any material change in its current request, inquiry, investigation, action or future businesslegal proceeding by or before any Governmental Entity with respect to the Merger or any of the other Transactions, assets, liabilities, financial condition, or results of operationsincluding transactions under the Voting Agreements; (ii) any complaints, investigations, or hearings (or communications indicating that keep the same may be contemplated) other parties informed as to the status of any Governmental Entities respecting its business such request, inquiry, investigation, action or the transactions contemplated herebylegal proceeding; and (iii) promptly inform the institution other parties of any communication to or from the threat Federal Trade Commission, the Department of material litigation involving it Justice or any other Governmental Entity regarding the Merger. Each party hereto will consult and cooperate with the other parties and will consider in good faith the views of the other parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with the Merger, or any of its subsidiaries; the other Transactions, including transactions under the Voting Agreements. In addition, except as may be prohibited by any Governmental Entity or (iv) by any event Law, in connection with any such request, inquiry, investigation, action or condition that might reasonably be expected to cause any legal proceeding, each party hereto will permit authorized representatives of its representations, warranties, covenants, or agreements set forth herein not the other parties to be true present at each meeting or conference relating to such request, inquiry, investigation, action or legal proceeding and correct at the Effective Time. As used to have access to and be consulted in the preceding sentenceconnection with any document, “material litigation” means opinion or proposal made or submitted to any caseGovernmental Entity in connection with such request, arbitrationinquiry, investigation, action or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matterproceeding.
Appears in 3 contracts
Samples: Merger Agreement, Merger Agreement (Avis Budget Group, Inc.), Merger Agreement (Zipcar Inc)
Appropriate Action; Consents; Filings. (a) OTE The Company and TetriDyn Parent shall use, and shall cause each of use their respective subsidiaries to use, all reasonable best efforts to: (i) take, or cause to be taken, all appropriate action, and do, or cause to be done, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise to consummate and make effective the Offer, the Merger and the other transactions contemplated by this Agreementhereby as promptly as practicable; (ii) obtain in a timely manner from any Governmental Entities Authorities any consents, licenses, permits, waivers, approvals, authorizations, authorizations or orders required to be obtained or made by OTE Parent or TetriDyn the Company or any subsidiary of their respective subsidiaries in connection with the authorization, execution, execution and delivery of this Agreement and the consummation of the Offer, the Merger and the other transactions contemplated hereby, including the Merger; and (iii) as promptly as practicable make all necessary filings, and thereafter make any other required submissions, respecting with respect to this Agreement and Agreement, the Offer, the Merger or the other transactions contemplated hereby that are required under: under (1A) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal securities or state securities Blue Sky Laws; , (B) the HSR Act and any related governmental request(s) thereunder and (2C) any other applicable Law; provided thatprovided, OTE that Parent and TetriDyn the Company shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party non-filing party and its advisers advisors prior to such filings filing and, if requested, shall to accept all reasonable additions, deletions, deletions or changes suggested in connection therewith. OTE Each of the Company and TetriDyn Parent shall furnish to each other all information required from it for any application or other filing to be made pursuant to the rules and regulations of any applicable Law (including all information required to be included in the Company Proxy Statement) in connection with the transactions contemplated by this Agreement.
(b) OTE and TetriDyn agree Without limiting the generality of its undertakings pursuant to cooperate respectingSection 6.03(a) hereof, each party shall (i) use its commercially best efforts to cause each prevent the entry, in a judicial or administrative proceeding brought under any antitrust Law by any Governmental Authority with jurisdiction over enforcement of their respective subsidiaries to cooperate respectingany applicable antitrust Laws or any other party, and to use all reasonable efforts vigorously to contest and resist of any action, including legislative, administrative, permanent or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, preliminary injunction or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the would make consummation of the Offer, the Merger or any other transactions transaction contemplated by hereby in accordance with the terms of this AgreementAgreement unlawful or would prevent or delay it and (ii) take promptly, including by vigorously pursuing in the event that such an injunction or order has been issued in such a proceeding, all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree steps necessary to take all actions, including the disposition an appeal of assets such injunction or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfiedorder; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse EffectParent and Purchaser, and TetriDyn together, shall not be required to undertake more than one such appeal.
(c) Notwithstanding anything to the contrary in this Section 6.03 or elsewhere in this Agreement, the parties agree that, in response to any action taken or threatened to be taken by any court or Governmental Authority, Parent shall not be required to (i) take any action or agree to the imposition of any order or judgment that would compel Parent or could reasonably be expected the Company (or any of their respective subsidiaries) to have a TetriDyn Material Adverse Effectsell, license or otherwise dispose of, hold separate or otherwise divest itself of any portion of its respective business, operations or assets in order to consummate the Offer, the Merger or any other transaction contemplated hereby or (ii) impose any material limitation(s) on Parent's ability to own or operate any of the businesses and operations of the Company and its Subsidiaries.
(i) OTE Each of Parent and TetriDyn the Company shall give (or shall cause its respective subsidiaries to give) any notices to third parties, and use use, and cause their its respective subsidiaries to use all use, their reasonable best efforts to obtain any third-party consents: consents or waivers, (1A) necessary, proper, proper or advisable to consummate the transactions contemplated by in this Agreement; , (2B) otherwise disclosed or required under any contracts, licenses, leases, or other agreements to be disclosed in connection with the consummation of the transactions contemplated hereby; Company Disclosure Schedule or (3C) required to prevent a material adverse effect affecting either of their respective business and operations Company Material Adverse Effect from occurring prior to or after the Effective Time or a TetriDyn Parent Material Adverse Effect from occurring after the Effective Time; provided, however, that, without the prior written consent of Parent, the Company and its Subsidiaries shall not incur fees and expenses in excess of $100,000 in the aggregate in order to obtain, and/or in seeking to obtain, any such third-party consents or waivers.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party either Parent or the Company shall fail to obtain any third-party consent or waiver described in subsection (c)(iid)(i) above, such Party it shall use all its reasonable best efforts, and shall take any such actions reasonably requested by any the other Partyparty, to limit the minimize any adverse effect upon OTE the Company and TetriDynParent, their respective subsidiaries, and their respective subsidiaries and their respective businessesbusinesses resulting, resulting or that which could reasonably be expected to result after the Effective Time, from the failure to obtain such consentconsent or waiver.
(de) OTE and TetriDyn From the date of this Agreement until the Effective Time or the earlier termination of this Agreement pursuant to Article VIII hereof, each party shall promptly notify the other of: party in writing of any pending or threatened action, proceeding or investigation by any Governmental Authority or any other person known to it (i) challenging or seeking material damages in connection with the Offer, the Merger or any material change in its current other transaction contemplated hereby; or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaintsseeking to delay, investigationsrestrain or prohibit the consummation of the Offer, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it Merger or any other transaction contemplated hereby or otherwise limit the right of Parent or Parent's subsidiaries to own or operate all or any portion of the businesses or assets of the Company or its subsidiaries; Subsidiaries, which in either case is reasonably likely to have, individually or (iv) any event in the aggregate, a Company Material Adverse Effect prior to or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at after the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to a Parent Material Adverse Effect after the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matterEffective Time.
Appears in 3 contracts
Samples: Merger Agreement (Crane Co /De/), Merger Agreement (Crane Co /De/), Merger Agreement (Signal Technology Corp)
Appropriate Action; Consents; Filings. (a) OTE Upon the terms and TetriDyn subject to the conditions set forth in this Agreement, each of HI-REIT and XXXXXXX XX shall use, and shall cause each of their respective subsidiaries Subsidiaries and their respective Affiliates to use, all use its reasonable best efforts to: (i) to take, or cause to be taken, all appropriate actionactions, and to do, or cause to be done, and to assist and cooperate with the other Party in doing, all things necessary, properproper or advisable, including under Applicable Law or advisable under applicable Laws or otherwise pursuant to any Contract, to consummate and make effective effective, as promptly as practicable, the transactions contemplated by this Agreement; (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, or orders required to be obtained or made by OTE or TetriDyn or any subsidiary in connection with the authorization, execution, and delivery of this Agreement Mergers and the consummation of the transactions contemplated hereby, including the Merger; (iii) make all necessary filings, and thereafter make any other required submissions, respecting this Agreement and the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing (i) taking all available avenues of administrative actions necessary to cause the conditions to Closing set forth in Article VIII to be satisfied, (ii) preparing and judicial appeal filing any applications, notices, registrations and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or requests as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not advisable to be satisfied; provided, however, that filed with or submitted to any Governmental Entity in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable order to consummate the transactions contemplated by this Agreement; , (2iii) otherwise required under any contractsobtaining all necessary or advisable actions or non-actions, licenseswaivers, leases, consents and approvals from Governmental Entities or other agreements Persons necessary in connection with the consummation of the Mergers and the other transactions contemplated hereby; by this Agreement and the making of all necessary or advisable registrations and filings (3including filings with Governmental Entities, if any) required and the taking of all reasonable steps as may be necessary or advisable to prevent a material adverse effect affecting either obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entity or other Persons necessary in connection with the consummation of their respective business the Mergers and operations from occurring prior the other transactions contemplated by this Agreement, (iv) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers or the other transactions contemplated by this Agreement, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed, the avoidance of each and every impediment under any antitrust, merger control, competition or trade regulation Law that may be asserted by any Governmental Entity with respect to the Effective Time Mergers so as to enable the Closing to occur as soon as reasonably possible, and (v) executing and delivering any additional instruments necessary or a TetriDyn Material Adverse Effect from occurring advisable to consummate the Mergers and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement; provided, that neither Party will have any obligation (i) to propose, negotiate, commit to or effect, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of such Party, any of its subsidiaries (including subsidiaries of XXXXXXX XX after the Effective Time.
Closing) or their Affiliates or (ii) OTE and TetriDyn shall use and cause otherwise to take or commit to take any actions that would limit the freedom of such Party, its subsidiaries (including subsidiaries of XXXXXXX XX after the Closing) or their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, dischargedAffiliates with respect to, or otherwise satisfied at the Effective Timetheir ability to retain, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c)one or more of their businesses or assets.
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matter.
Appears in 2 contracts
Samples: Merger Agreement (Hartman Short Term Income Properties XX, Inc.), Merger Agreement (Hartman Short Term Income Properties XX, Inc.)
Appropriate Action; Consents; Filings. (a) OTE Upon the terms and TetriDyn shall usesubject to the conditions set forth in this Agreement, each of the Company, Company LP and Parent shall, and shall cause each of the Company Subsidiaries, REIT Merger Sub, Partnership Merger Sub and the Parent Subsidiaries, respectively, and their respective subsidiaries Affiliates to, use their respective reasonable best efforts to use, all reasonable efforts to: (i) take, or cause to be taken, all appropriate actionactions, and to do, or cause to be done, and to assist and cooperate with the other Party in doing, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise pursuant to any contract or agreement to consummate and make effective effective, as promptly as practicable, the transactions contemplated by this Agreement; (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, or orders required to be obtained or made by OTE or TetriDyn or any subsidiary in connection with the authorization, execution, and delivery of this Agreement Mergers and the consummation of the transactions contemplated hereby, including the Merger; (iii) make all necessary filings, and thereafter make any other required submissions, respecting this Agreement and the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing (i) the taking of all available avenues actions necessary to cause the conditions to Closing set forth in Article 8 to be satisfied, (ii) the obtaining of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all necessary or advisable actions or non-actions, including the disposition of assets waivers, waiting period expirations or the withdrawal terminations, consents and approvals from doing business Governmental Authorities or other Persons necessary in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit connection with the consummation of the Merger Mergers and the other transactions contemplated by this Agreement and the making of all necessary or advisable registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be required necessary or advisable to avoid, lift, vacateobtain an approval or waiver from, or reverse to avoid an Action by, any legislative Governmental Authority or other Persons necessary in connection with the consummation of the Mergers and the other transactions contemplated by this Agreement, including complying expeditiously with any and all information and document requests by any Governmental Authority in connection with any investigation of the Mergers or the other transactions contemplated hereby, (iii) subject to Section 7.7(c), the defending of any lawsuits or other legal proceedings, whether judicial action that would otherwise cause any condition to Closing not to be satisfied; providedor administrative, howeverchallenging this Agreement or the consummation of the Mergers or the other transactions contemplated by this Agreement, that in no event shall OTE be required to take any action that would or could reasonably be expected including seeking to have an OTE Material Adverse Effectany stay or restraining order entered by any court or other Governmental Authority vacated or reversed, and TetriDyn shall not the avoidance of each and every impediment under any antitrust, merger control, competition or trade regulation Law that may be required asserted by any Governmental Authority with respect to take the Mergers so as to enable the Closing to occur as soon as reasonably possible, and (iv) the execution and delivery of any action that would additional instruments necessary or could reasonably be expected advisable to have a TetriDyn Material Adverse Effectconsummate the Mergers and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement.
(ib) OTE In connection with and TetriDyn without limiting the foregoing Section 7.6(a), each of Parent, the Company and Company LP shall use its commercially reasonable efforts (or shall cause REIT Merger Sub, Partnership Merger Sub, the Parent Subsidiaries or the Company Subsidiaries, respectively), to give any notices to third parties, and use each of Parent and the Company shall use, and cause each of their respective subsidiaries Affiliates to use all use, its commercially reasonable efforts to obtain any third-third party consents: (1consents not covered by Section 7.6(a) that are necessary, proper, proper or advisable to consummate the Mergers and the other transactions contemplated by this Agreement; (2) otherwise required under any contracts. Each of the Parties hereto shall and shall cause their respective Affiliates to, licenses, leases, or furnish to the other agreements such necessary information and reasonable assistance as the other may request in connection with the consummation preparation of any required governmental filings or submissions and will cooperate in responding to any inquiry from a Governmental Authority, including promptly informing the other Parties of such inquiry, consulting in advance before making any presentations or submissions to a Governmental Authority, and supplying each other with copies of all material correspondence, filings or communications between any Party and any Governmental Authority with respect to this Agreement. To the extent reasonably practicable and legally permitted, the Parties or their Representatives shall have the right to review in advance, and each of the Parties will consult the others on, all the information relating to such parties and each of their Affiliates that appears in any filing made with, or written materials submitted to, any Governmental Authority in connection with the Mergers and the other transactions contemplated hereby; by this Agreement, except that confidential, competitively sensitive business information may be redacted from such exchanges. The Parties may, as they deem advisable and necessary, designate any sensitive materials provided to the other under this Section 7.6 as “outside counsel only.” Such materials and the information contained therein shall be given only to outside counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, directors or trustees of the recipient without the advance written consent of the Party providing such materials. To the extent reasonably practicable, neither the Company, Company LP, Parent, REIT Merger Sub nor Partnership Merger Sub shall, nor shall they permit their respective Representatives to, participate independently in any meeting or engage in any substantive conversation with any Governmental Authority in respect of any filing, investigation or other inquiry without giving the other Party prior notice of such meeting or conversation and, to the extent permitted by applicable Law, without giving the other party the opportunity to attend or participate (3whether by telephone or in Person) required in any such meeting with such Governmental Authority.
(c) In connection with obtaining any approval or consent from any Person (other than any Governmental Authority) with respect to prevent a material adverse effect affecting either the Mergers, none of the Parties or any of their Subsidiaries, or any of their respective business and operations from occurring Representatives, shall be obligated to pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Person prior to the Partnership Merger Effective Time or a TetriDyn Material Adverse Effect from occurring after and the REIT Merger Effective Time.
(ii) OTE and TetriDyn . The Parties shall use and cause their respective subsidiaries cooperate with respect to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation accommodations that will not may be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consentconsents.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matter.
Appears in 2 contracts
Samples: Merger Agreement (Government Properties Income Trust), Merger Agreement (First Potomac Realty Trust)
Appropriate Action; Consents; Filings. (a) OTE Upon the terms and TetriDyn subject to the conditions set forth in this Agreement, CMFT shall use, and shall cause each CMFT Subsidiary and each of their respective subsidiaries Affiliates to, and CCPT V shall and shall cause each CCPT V Subsidiary and each of their respective Affiliates to, use its reasonable best efforts to use, all reasonable efforts to: (i) take, or cause to be taken, all appropriate actionactions, and to do, or cause to be done, and to assist and cooperate with the other Parties in doing, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise pursuant to any Contract to consummate and make effective effective, as promptly as practicable, the transactions contemplated by this Agreement; (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, or orders required to be obtained or made by OTE or TetriDyn or any subsidiary in connection with the authorization, execution, and delivery of this Agreement Merger and the consummation of the transactions contemplated hereby, including the Merger; (iii) make all necessary filings, and thereafter make any other required submissions, respecting this Agreement and the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing (i) taking all available avenues of administrative actions necessary to cause the conditions to Closing set forth in Article 8 to be satisfied, (ii) preparing and judicial appeal filing any applications, notices, registrations and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or requests as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not advisable to be satisfied; provided, however, that filed with or submitted to any Governmental Authority in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable order to consummate the transactions contemplated by this Agreement; , (2iii) otherwise required under any contractsobtaining all necessary or advisable actions or nonactions, licenseswaivers, leases, consents and approvals from Governmental Authorities or other agreements Persons necessary in connection with the consummation of the Merger and the other transactions contemplated herebyby this Agreement and the making of all necessary or advisable registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary or advisable to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authority or other Persons necessary in connection with the consummation of the Merger and the other transactions contemplated by this Agreement, (iv) subject to Section 7.6(c), defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger or the other transactions contemplated by this Agreement, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed, the avoidance of each and every impediment under any antitrust, merger control, competition or trade regulation Law that may be asserted by any Governmental Authority with respect to the Merger so as to enable the Closing to occur as soon as reasonably possible, and (v) executing and delivering any additional instruments reasonably necessary or advisable to consummate the Merger and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement; provided, that, notwithstanding anything to the contrary in this Agreement, no Party will have any obligation (A) to propose, negotiate, commit to or effect, by consent decree, hold separate order or otherwise, the sale, divestiture or other disposition of any assets or businesses of such Party, any of its subsidiaries (including subsidiaries of CMFT after the Closing) or their Affiliates or (3B) required otherwise to prevent a material adverse effect affecting either take or commit to take any actions that would limit the freedom of such Party, its subsidiaries (including subsidiaries of CMFT after the Closing) or their Affiliates with respect to, or their ability to retain, one or more of their respective business businesses, product lines or assets; provided, further, that CCPT V and operations from occurring the CCPT V Subsidiaries shall not take any of the actions referred to in the proceeding proviso (or agree to take such actions) without CMFT’s prior written consent and CMFT can compel CCPT V and the CCPT V Subsidiaries to take any of the Effective Time actions referred to in the proceeding proviso (or a TetriDyn Material Adverse Effect from occurring agree to take such actions) if such actions are only effective after the Merger Effective Time.
(iib) OTE In connection with and TetriDyn without limiting the foregoing Section 7.5(a), each of the Parties shall use and give (or shall cause their respective subsidiaries Affiliates to use all give) any notices to third parties, and each of the Parties shall use, and cause each of their respective Affiliates to use, its reasonable best efforts to obtain release any third party consents that are necessary, proper or advisable to consummate the Merger and the other transactions contemplated by this Agreement. Each of the Parties will, and shall cause their respective Affiliates to, furnish to the other Parties such necessary information and reasonable assistance as the other Parties may request in connection with the preparation of any guarantees required applications, notices, registrations and requests as may be required or advisable to be filed with any Governmental Authority and will cooperate in responding to any inquiry from a Governmental Authority, including promptly informing the other Party of such inquiry, consulting in advance before making any presentations or submissions to a Governmental Authority, and supplying each other with copies of all material correspondence, filings or communications between such Party and any Governmental Authority with respect to this Agreement. CMFT shall have the right to direct all matters with any Governmental Authority in connection with this Agreement in a manner consistent with its obligations hereunder; provided that, to the extent reasonably practicable, the Parties or their Representatives shall have the right to review in advance and each of the Parties will consult the other Parties on, all the information relating to the other Parties and each of their Affiliates that appears in any filing made with, or written materials submitted to, any Governmental Authority in connection with the Merger and the other transactions contemplated by this Agreement, except that confidential competitively sensitive business information may be redacted from such exchanges. To the extent reasonably practicable, no Party shall, nor shall any owner of TetriDyn Party permit its respective Representatives to, participate independently in any meeting or engage in any substantive conversation with any Governmental Authority in respect of any third-party indebtedness filing, investigation or obligation that will not be paidother inquiry without giving the other Parties prior notice of such meeting or conversation and, dischargedto the extent permitted by applicable Law, without giving the other Parties the opportunity to attend or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth participate (whether by telephone or in subsection 5.12(c)person) in any such meeting with such Governmental Authority.
(iiic) In Notwithstanding anything to the event that contrary in this Agreement, in connection with obtaining any Party shall fail approval or consent from any Person (other than any Governmental Authority) with respect to obtain the Merger and the other transactions contemplated by this Agreement, none of the Parties or any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and of their respective subsidiaries and their respective businessesRepresentatives shall be obligated to pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, resulting make any accommodation or commitment or incur any liability or other obligation to such Person. Subject to the immediately foregoing sentence, the Parties shall cooperate with respect to reasonable accommodations that could reasonably may be expected to result after the Effective Time, from the failure requested or appropriate to obtain such consentconsents.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matter.
Appears in 2 contracts
Samples: Merger Agreement (Cole Credit Property Trust V, Inc.), Merger Agreement (Cole Office & Industrial REIT (CCIT III), Inc.)
Appropriate Action; Consents; Filings. (a) OTE The Company and TetriDyn Parent shall use, and shall cause each of use their respective subsidiaries reasonable best efforts to use, all reasonable efforts to: (i) take, or cause to be taken, all appropriate action, action and do, or cause to be done, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise to consummate and make effective the transactions contemplated by this Agreement; Agreement as promptly as practicable, (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, authorizations or orders required to be obtained by Parent or made by OTE or TetriDyn the Company or any subsidiary of their respective Subsidiaries, or to avoid any action or proceeding by any Governmental Entity (including, without limitation, those in connection with the HSR Act), in connection with the authorization, execution, execution and delivery of this Agreement and the consummation of the transactions contemplated herebyherein, including without limitation the Offer and the Merger; , (iii) as promptly as reasonably practicable, and in any event within 10 Business Days after the date hereof, make all necessary filings, and thereafter make any other required submissions, respecting and pay any fees due in connection therewith, with respect to this Agreement Agreement, the Offer and the Merger required under: under (1A) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; , (B) the HSR Act, (C) the Other Required Governmental Approvals and (2D) any other applicable LawLaw and (iv) respond promptly and fully to any “second request” in connection with any filing under the HSR Act or similar inquiry by any Governmental Entity; provided thatprovided, OTE that the Company and TetriDyn Parent shall cooperate with each other in connection with (x) preparing and filing the Offer Documents, the Schedule 14D-9, the Proxy Statement and any Other Filings, (y) determining whether any action by or in respect of, or filing with, any Governmental Entity is required, in connection with the consummation of the Offer or the Merger and (z) seeking any such actions, consents, approvals or waivers or making of all any such filings, including providing copies of all such documents to the other Party . The Company and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn Parent shall furnish to each other all information required for any application or other filing to be made pursuant to under the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement. The parties shall as promptly as practicable after the date hereof (and in any event within 10 Business Days after the date hereof; provided that if either the Company or Parent fails to furnish or cause to be furnished such information and such other assistance as the other party or its agents may reasonably request in a timely manner to allow for the parties to reasonably meet such 10 Business Day deadline, then the parties shall have a reasonable additional period of time in which to make such joint filing as promptly as practicable after receiving such information and assistance from the relevant party), file a joint draft notification in respect of this Agreement and the Offer and the Merger with the Committee on Foreign Investment in the United States (“CFIUS”) pursuant to Section 721(a) of the Exon-Xxxxxx Amendment to the Defense Production Act of 1950 (the “Exon-Xxxxxx Amendment”), with the formal joint filing made as soon as practicable thereafter within the minimum amount of time reasonably necessary to address any questions or comments of CFIUS.
(b) OTE The Company and TetriDyn agree to cooperate respecting, to Parent shall give (or shall cause each of their respective subsidiaries Subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanentgive) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use use, and cause their respective subsidiaries Subsidiaries to use all use, their reasonable best efforts to obtain any third-third party consents: , (1i) necessary, proper, proper or advisable to consummate the transactions contemplated by this Agreement or (ii) required to be disclosed in the Company Disclosure Schedule or the Parent Disclosure Schedule, as applicable.
(c) Without limiting the generality of anything contained in this Section 5.4, each party hereto shall: (i) give the other parties prompt notice of the making or commencement of any request, inquiry, investigation, action or legal proceeding by or before any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement; (2ii) otherwise required under keep the other parties informed as to the status of any contractssuch request, licensesinquiry, leasesinvestigation, action or legal proceeding; and (iii) promptly inform the other agreements parties of any communication to or from the Federal Trade Commission, the Department of Justice or any other Governmental Entity regarding the Offer or the Merger. Each party hereto will consult and cooperate with the other parties and will consider in good faith the views of the other parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with the consummation Offer, the Merger or any of the other transactions contemplated hereby; or (3) required to prevent a material adverse effect affecting either of their respective business and operations from occurring prior to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by this Agreement. In addition, except as may be prohibited by any owner of TetriDyn of Governmental Entity or by any third-party indebtedness or obligation that will not be paidLaw, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take connection with any such actions reasonably requested by request, inquiry, investigation, action or legal proceeding, each party hereto will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation, action or legal proceeding and to have access to and be consulted in connection with any other Partydocument, opinion or proposal made or submitted to limit the adverse effect upon OTE and TetriDynany Governmental Entity in connection with such request, and their respective subsidiaries and their respective businessesinquiry, resulting investigation, action or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consentlegal proceeding.
(d) OTE Each of Parent, the Purchaser and TetriDyn the Company shall promptly notify the other of: (i) cooperate and coordinate with the other in the making of any material change filings or submissions that are required to be made under any applicable Competition Laws or requested to be made by any Governmental Entity in its current or future businessconnection with the transactions contemplated by this Agreement, assets, liabilities, financial condition, or results of operations; (ii) supply the other or its outside counsel with any complaints, investigations, or hearings (or communications indicating information that the same may be contemplated) of required or requested by any Governmental Entities respecting its business Entity in connection with such filings or the transactions contemplated hereby; submissions, and (iii) supply any additional information that may be required or requested by the institution Federal Trade Commission, the Department of Justice or other Governmental Entities in which any such filings or submissions are made under any applicable Competition Laws as promptly as practicable. Notwithstanding anything to the threat of material litigation involving it contrary herein, nothing in this Agreement shall require Parent or any of its subsidiaries; subsidiaries or (iv) affiliates to, and, except with the prior written consent of Parent, the Company shall not take any event or condition that might reasonably be expected action to cause and shall not allow any of its representationsthe Company Subsidiaries to, warrantiesconsent or proffer to divest, covenantshold separate, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means enter into any case, arbitrationlicense or similar Contract with respect to, or adversary proceeding agree to restrict the ownership or other matter that is operation of, any material business or assets of Parent, the Company or any of their respective subsidiaries.
(e) Notwithstanding anything to the business and contrary in this Agreement, nothing contained in this Agreement shall give Parent or the Purchaser, directly or indirectly, the right to control or direct the operations of the subject entity, if in existence on Company prior to the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life consummation of the matter or Offer. Prior to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life consummation of the matterOffer, the Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its operations.
Appears in 2 contracts
Samples: Merger Agreement (Complete Genomics Inc), Merger Agreement (Complete Genomics Inc)
Appropriate Action; Consents; Filings. (a) OTE Upon the terms and TetriDyn subject to the conditions set forth in this Agreement, each of the SOR Parties and SOR II shall use, and shall cause each of the SOR Subsidiaries and the SOR II Subsidiaries, respectively, and their respective subsidiaries Affiliates to use, all use reasonable best efforts to: (i) to take, or cause to be taken, all appropriate actionactions, and to do, or cause to be done, and to assist and cooperate with the other Party in doing, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise pursuant to any Contract to consummate and make effective effective, as promptly as practicable, the transactions contemplated by this Agreement; (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, or orders required to be obtained or made by OTE or TetriDyn or any subsidiary in connection with the authorization, execution, and delivery of this Agreement Merger and the consummation of the transactions contemplated hereby, including the Merger; (iii) make all necessary filings, and thereafter make any other required submissions, respecting this Agreement and the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing (i) taking all available avenues of administrative actions necessary to cause the conditions to Closing set forth in Article 8 to be satisfied, (ii) preparing and judicial appeal filing any applications, notices, registrations and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or requests as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not advisable to be satisfied; provided, however, that filed with or submitted to any Governmental Authority in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable order to consummate the transactions contemplated by this Agreement; , (2iii) otherwise required under any contractsobtaining all necessary or advisable actions or nonactions, licenseswaivers, leases, consents and approvals from Governmental Authorities or other agreements Persons necessary in connection with the consummation of the Merger and the other transactions contemplated herebyby this Agreement and the making of all necessary or advisable registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary or advisable to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authority or other Persons necessary in connection with the consummation of the Merger and the other transactions contemplated by this Agreement, (iv) subject to Section 7.6(c), defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger or the other transactions contemplated by this Agreement, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed, the avoidance of each and every impediment under any antitrust, merger control, competition or trade regulation Law that may be asserted by any Governmental Authority with respect to the Merger so as to enable the Closing to occur as soon as reasonably possible, and (v) executing and delivering any additional instruments necessary or advisable to consummate the Merger and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement; provided, that neither Party will have any obligation (A) to propose, negotiate, commit to or effect, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of such Party, any of its subsidiaries (including subsidiaries of SOR after the Closing) or their Affiliates or (3B) required otherwise to prevent a material adverse effect affecting either take or commit to take any actions that would limit the freedom of such Party, its subsidiaries (including subsidiaries of SOR after the Closing) or their Affiliates with respect to, or their ability to retain, one or more of their businesses, product lines or assets.
(b) In connection with and without limiting the foregoing Section 7.5(a), each of the Parties shall give (or shall cause their respective Affiliates to give) any notices to third parties, and each of the Parties shall use, and cause each of their respective business and operations from occurring prior Affiliates to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all use, its reasonable best efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) aboveconsents that are necessary, such Party shall use all reasonable effortsproper or advisable to consummate the Merger and the other transactions contemplated by this Agreement. Each of the Parties will, and shall take cause their respective Affiliates to, furnish to the other such necessary information and reasonable assistance as the other may request in connection with the preparation of any required applications, notices, registrations and requests as may be required or advisable to be filed with any Governmental Authority and will cooperate in responding to any inquiry from a Governmental Authority, including promptly informing the other Party of such inquiry, consulting in advance before making any presentations or submissions to a Governmental Authority, and supplying each other with copies of all material correspondence, filings or communications between either Party and any Governmental Authority with respect to this Agreement. To the extent reasonably practicable, the Parties or their Representatives shall have the right to review in advance and each of the Parties will consult the others on, all the information relating to the other and each of their Affiliates that appears in any filing made with, or written materials submitted to, any Governmental Authority in connection with the Merger and the other transactions contemplated by this Agreement, except that confidential competitively sensitive business information may be redacted from such exchanges. To the extent reasonably practicable, neither Party shall, nor shall they permit their respective Representatives to, participate independently in any meeting or engage in any substantive conversation with any Governmental Authority in respect of any filing, investigation or other inquiry without giving the other Party prior notice of such meeting or conversation and, to the extent permitted by applicable Law, without giving the other Party the opportunity to attend or participate (whether by telephone or in person) in any such actions reasonably requested meeting with such Governmental Authority.
(c) Notwithstanding anything to the contrary in this Agreement, in connection with obtaining any approval or consent from any Person (other than any Governmental Authority) with respect to the Merger and the other transactions contemplated by this Agreement, none of the Parties or any other Party, to limit the adverse effect upon OTE and TetriDyn, and of their respective subsidiaries Representatives shall be obligated to pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Person other than commercially reasonable processing and their respective businessesconsent fees in connection with obtaining the consent or approval of any lender with respect to any Indebtedness set forth at Section 4.3(b) of the SOR II Disclosure Letter and Section 5.3(b) of the SOR Disclosure Letter. Subject to the immediately foregoing sentence, resulting the Parties shall cooperate with respect to reasonable accommodations that may be requested or that could reasonably be expected to result after the Effective Time, from the failure appropriate to obtain such consentconsents.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matter.
Appears in 2 contracts
Samples: Merger Agreement (Pacific Oak Strategic Opportunity REIT, Inc.), Merger Agreement (Pacific Oak Strategic Opportunity REIT II, Inc.)
Appropriate Action; Consents; Filings. Section 5.8.1 The Company and Parent shall use their reasonable best efforts to (a) OTE and TetriDyn shall use, and shall cause each of their respective subsidiaries to use, all reasonable efforts to: (iA) take, or cause to be taken, all appropriate action, and do, or cause to be done, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise to consummate and make effective the transactions contemplated by this Agreement; Agreement as promptly as practicable, (iiB) obtain from any Governmental Entities Entity any consents, licenses, permits, waivers, approvals, authorizations, authorizations or orders required to be obtained or made by OTE Parent or TetriDyn the Company or any subsidiary of their respective Subsidiaries, or to avoid any action or proceeding by any Governmental Entity (including, without limitation, those in connection with the HSR Act), in connection with the authorization, execution, execution and delivery of this Agreement and the consummation of the transactions contemplated herebyherein and therein, including including, without limitation, the Merger; , and (iiiC) make all necessary filings, and thereafter make any other required submissions, respecting with respect to this Agreement and the Merger required under: under (1x) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; , (y) the HSR Act and (2z) any other applicable Law; provided thatprovided, OTE that Parent and TetriDyn the Company shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party non-filing party and its advisers advisors prior to such filings filing and, if requested, shall to accept all reasonable additions, deletions, deletions or changes suggested in connection therewiththerewith and, provided, however, that nothing in this Section 5.8.1 shall require Parent to agree to (AA) the imposition of conditions, (BB) the requirement of divestiture of material assets or property (other than Intellectual Property Rights) or (CC) the requirement of a material expenditure of money by Parent or the Company to a third party in exchange for any such consent. OTE The Company and TetriDyn Parent shall furnish to each other all information required for any application or other filing to be made pursuant to under the rules and regulations of any applicable Law (including all information required to be included in the Proxy Statement and the Registration Statement) in connection with the transactions contemplated by this Agreement.
Section 5.8.2 The Company and Parent shall give (b) OTE and TetriDyn agree to cooperate respecting, to or shall cause each of their respective subsidiaries Subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanentgive) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use use, and cause their respective subsidiaries Subsidiaries to use all use, reasonable best efforts to obtain any third-third party consents: , (1A) necessary, proper, proper or advisable to consummate the transactions contemplated by in this Agreement; , (2B) otherwise required under any contractsto be disclosed in the Company Disclosure Schedule or the Parent Disclosure Schedule, licensesas applicable, leases, or other agreements in connection with the consummation of the transactions contemplated hereby; or (3C) required to prevent a material adverse effect affecting either of their respective business and operations Company Material Adverse Effect from occurring prior to or after the Effective Time or a TetriDyn Parent Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; Time or (ivD) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used otherwise referenced in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matter.Section 6.1.4
Appears in 2 contracts
Samples: Merger Agreement (DG FastChannel, Inc), Merger Agreement (Enliven Marketing Technologies Corp)
Appropriate Action; Consents; Filings. (a) OTE The Company and TetriDyn Parent shall use, and shall cause each of use their respective subsidiaries reasonable best efforts to use, all reasonable efforts to: (iA) take, or cause to be taken, all appropriate action, and do, or cause to be done, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise to consummate and make effective the transactions contemplated by this Agreement; Agreement as promptly as practicable, (iiB) obtain from any Governmental Entities Entity any consents, licenses, permits, waivers, approvals, authorizations, authorizations or orders required to be obtained or made by OTE Parent or TetriDyn the Company or any subsidiary of their respective Subsidiaries, or to avoid any action or proceeding by any Governmental Entity (including, without limitation, those in connection with the HSR Act), in connection with the authorization, execution, execution and delivery of this Agreement and the consummation of the transactions contemplated herebyherein, including including, without limitation, the Merger; , (iiiC) make all necessary filings, and thereafter make any other required submissions, respecting with respect to this Agreement and the Merger required under: under (1x) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; , (y) the HSR Act and (2z) any other applicable LawLaw and (D) contest any action by any Governmental Entity seeking to restrain, enjoin, impose conditions upon or alter the transactions contemplated by this Agreement; provided thatprovided, OTE however, that Parent and TetriDyn the Company shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to counsel for the other Party non-filing party and its advisers advisors prior to such filings filing and, if requested, shall to accept all reasonable additions, deletions, deletions or changes suggested in connection therewith; provided, however, that nothing in this Section 6.8(a) shall require Parent to agree to (AA) the imposition of conditions, (BB) the requirement of divestiture of assets or property or (CC) the requirement of expenditure of money by Parent or the Company to a third party in exchange for any such consent. OTE The Company and TetriDyn Parent shall furnish to each other all information required for any application or other filing to be made pursuant to under the rules and regulations of any applicable Law (including all information required to be included in the Proxy Statement and the Registration Statement) in connection with the transactions contemplated by this Agreement. To the extent reasonably practicable, neither Parent nor the Company shall agree to participate in any meeting or discussion with any Governmental Entity in respect of any filings, investigation or other inquiry concerning this Agreement or the Merger unless it consults with the other party in advance and, to the extent permitted by such Governmental Entity, gives the other party the opportunity to attend and participate in such meeting or discussion.
(b) OTE The Company and TetriDyn agree to cooperate respecting, to Parent shall give (or shall cause each of their respective subsidiaries Subsidiaries to cooperate respectinggive) any notices to third parties, and use, and cause their respective Subsidiaries to use, all reasonable best efforts to obtain any third party consents, (A) necessary to consummate the transactions contemplated in this Agreement, (B) required to be disclosed in the Company Disclosure Schedule or the Parent Disclosure Schedule, as applicable, (C) required to prevent a Company Material Adverse Effect from occurring prior to or after the Effective Time or a Parent Material Adverse Effect from occurring after the Effective Time or (D) otherwise referenced in Section 7.1(e) or Section 7.2(d). In the event that either party shall fail to obtain any third party consent described in the first sentence of this Section 6.8(b), such party shall use all reasonable efforts vigorously best efforts, and shall take any such actions reasonably requested by the other party hereto, to contest minimize any adverse effect upon the Company and resist Parent, their respective subsidiaries, and their respective businesses resulting, or which could reasonably be expected to result from the failure to obtain such consent.
(c) From the date of this Agreement until the Effective Time, each party shall promptly notify the other party in writing of any pending or, to the knowledge of such party, threatened action, including legislativesuit, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, arbitration or other order (whether temporary, preliminary, proceeding or permanent) (an “Order”) of investigation by any Governmental Entity that is or any other person (A) challenging or seeking material damages in effect and that restricts, preventsconnection with the Merger or any other transactions contemplated by this Agreement, or prohibits the conversion of Company Common Shares into Merger Consideration pursuant to the Merger or (B) seeking to restrain or prohibit the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing Agreement or otherwise limit the right of Parent or any Parent Subsidiary to own or operate all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation portion of the Merger businesses or as may be required assets of the Company or any Company Subsidiary. Each party shall give the other reasonable opportunity to avoid, lift, vacateparticipate in (but not to conduct, or reverse direct the conduct of) the defense of or negotiations with respect to any legislative such action, suit, arbitration or judicial action other proceeding or investigation; provided that would otherwise cause any condition the party that is subject to Closing not such action, suit, arbitration or other proceeding or investigation shall be entitled to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effectcontrol the defense thereof.
(id) OTE Without limiting the foregoing, Parent, the Company and TetriDyn their respective Boards of Directors shall give (x) take all action necessary so that no takeover statute or similar statute or regulation is or becomes applicable to the Merger, this Agreement or any notices other transactions contemplated by this Agreement and (y) if any takeover statute or similar statute or regulation becomes applicable to third partiesthe Merger, this Agreement or any other transactions contemplated by this Agreement, take all action necessary so that the Merger and the other transactions contemplated by this Agreement may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such statute or regulation on the Merger and the other transactions contemplated by this Agreement.
(e) The Company agrees to provide, and use will cause the Company Subsidiaries and cause its and their respective subsidiaries officers and employees to provide, and will use all reasonable best efforts to obtain cause its accountants, attorneys and other representatives to provide, reasonable cooperation in connection with the arrangement of any third-party consents: (1) necessary, proper, or advisable financing to consummate be consummated contemporaneous with the Closing in respect of this Agreement and the transactions contemplated by this Agreement; (2) otherwise required under any contracts, licenses, leases, or other agreements in connection with the consummation of the transactions contemplated hereby; or (3) required to prevent a material adverse effect affecting either of their respective business and operations from occurring prior to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matter.
Appears in 2 contracts
Samples: Merger Agreement (Cooper Companies Inc), Merger Agreement (Ocular Sciences Inc /De/)
Appropriate Action; Consents; Filings. (a) OTE Section 5.6(b) of the Merger Agreement is hereby amended and TetriDyn shall userestated to read in its entirety as follows with deleted language indicated by strikethrough and newly added language indicated by double underlining:
(b) In furtherance and not in limitation of Section 5.6(a), each party hereto agrees to make any appropriate filings, if necessary or advisable, (x) pursuant to the HSR Act within 20 Business Days of the date of this Agreement (unless otherwise mutually agreed between the parties) or (y) pursuant to other applicable Competition Laws with respect to the Merger as promptly as practicable. Each of Parent, Merger Sub and shall cause each of their respective subsidiaries to use, all reasonable efforts to: the Company will (i) take, cooperate and coordinate with the other in the making of any filings or cause submissions that are required to be taken, all appropriate action, and do, or cause to be done, all things necessary, proper, or advisable made under any applicable Laws or otherwise to consummate and make effective the transactions contemplated by this Agreement; (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, or orders required to be obtained or made by OTE or TetriDyn or any subsidiary in connection with the authorization, execution, and delivery of this Agreement and the consummation of the transactions contemplated hereby, including the Merger; (iii) make all necessary filings, and thereafter make any other required submissions, respecting this Agreement and the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing requested to be made pursuant to the rules and regulations of by any applicable Law Governmental Entity in connection with the transactions contemplated by this Agreement.
, (bii) OTE and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist supply the other or its outside counsel with any action, including legislative, administrative, information that may be required or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of requested by any Governmental Entity in connection with such filings or submissions, (iii) supply any additional information that is may be required or requested by the Federal Trade Commission, the Department of Justice or other Governmental Entities in effect which any such filings or submissions are made as promptly as practicable, and (iv) use their respective reasonable best efforts to cause the expiration or termination of the applicable waiting periods under any applicable Competition Laws as soon as reasonably practicable following the date of this Agreement (and prior to the Outside Date) (as may be extended pursuant to Section 7.1(e)); provided, that restrictsin the event of any disagreement between the parties regarding the strategy in respect of the foregoing, preventssuch matters will be determined by Parent in its good faith reasonable discretion. Without limiting the generality of the foregoing, (A) both Parent and Company (and their respective Subsidiaries and Affiliates) shall contest, defend and appeal any Proceedings brought by a Governmental Entity, whether judicial or prohibits administrative, challenging or seeking to restrain or prohibit the consummation of the Merger or seeking to compel any divestiture by Parent or the Company or any of their respective Subsidiaries of shares of capital stock or of any business, assets or property, or to impose any limitation on the ability of any of them to conduct their businesses or to own or exercise control of such assets, properties or stock to avoid or eliminate any impediment under the HSR Act or similar applicable Law, and (B) Parent and the Company shall not, and shall not permit any of their respective Subsidiaries and, in the case of Parent, the Indigo Stockholder to, (1) acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in or otherwise make any investment in, or by any other transactions contemplated by this Agreementmanner, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also any Person or portion thereof, or otherwise acquire or agree to take all actionsacquire or make any investment in any assets, including and (2) enter into, significantly expand or publicly announce an agreement to form a joint venture, strategic alliance or strategic partnership with another Person, in each case (1) and (2), if the disposition entering into of assets a definitive agreement relating to or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger such acquisition, merger, consolidation, investment, agreement or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that expansion would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take (I) impose any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, propermaterial delay in the obtaining of, or advisable materially increase the risk of not obtaining, any consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate or order of any Governmental Entity necessary to consummate the transactions contemplated by this Agreement; hereby or the expiration or termination of any applicable waiting period, (2II) otherwise required under materially increase the risk of any contracts, licenses, leases, Governmental Entity entering an order prohibiting the consummation of the transactions contemplated hereby or other agreements in connection with (III) materially delay the consummation of the transactions contemplated hereby; or (3) required to prevent a material adverse effect affecting either of their respective business and operations from occurring prior to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matter.”
Appears in 2 contracts
Samples: Amendment to Agreement and Plan of Merger (Spirit Airlines, Inc.), Amendment to Agreement and Plan of Merger (Frontier Group Holdings, Inc.)
Appropriate Action; Consents; Filings. (a) OTE Each of the Company and TetriDyn Parent shall use, and shall cause each of use their respective subsidiaries to use, all commercially reasonable efforts to: to (i) take, or cause to be taken, all appropriate action, and do, or cause to be done, all things necessary, proper, proper or advisable under any applicable Laws Law or otherwise to consummate and make effective the transactions contemplated by this Agreement; Merger and the Transactions as promptly as practicable, (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, authorizations or orders from any third party, including any Governmental Entity required to be obtained or made by OTE Parent or TetriDyn the Company or any subsidiary of Parent’s Subsidiaries, or to avoid any action or proceeding by any Governmental Entity, in connection with the authorization, execution, execution and delivery of this Agreement and the consummation of the transactions contemplated herebyMerger and the Transactions, including the Merger; (iii) prepare and make all necessary filingsor cause to be made the applications or filings required to be made by Parent or the Company or any of Parent’s Subsidiaries under any Laws in connection with the authorization, execution and thereafter make any other required submissions, respecting delivery of this Agreement and the consummation of the Merger required under: and the Transactions (1) the Securities Act and including, without limitation, under the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; ), and (2) to pay any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other fees due of it in connection with the making of all such applications or filings, including providing copies as promptly as is reasonably practicable, and in any event within ten Business Days after the date hereof, (iv) comply at the earliest practicable date with any request under any applicable Laws for additional information, documents or other materials received by Parent or the Company or any of all Parent’s Subsidiaries from any Governmental Entity in connection with such documents applications or filings or the Merger and the Transactions and (v) coordinate and cooperate with, and give due consideration to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, deletions or changes suggested in connection therewithwith, making (A) any filing under any applicable Laws, and (B) any filings, conferences or other submissions related to resolving any investigation or other inquiry by any such Governmental Entity. OTE Each of the Company and TetriDyn Parent shall, and shall cause their respective affiliates to, furnish to the other party all information required necessary for any such application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated Merger or the Transactions. Each of the Company and Parent shall promptly inform the other of any communication with, and any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such application or filing. If a party hereto intends to independently participate in any meeting with any Governmental Entity in respect of any such filings, investigation or other inquiry, then such party shall give the other party reasonable prior notice of such meeting. The parties shall coordinate and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by this Agreementor on behalf of any party in connection with all meetings, actions and proceedings under or relating to any such application or filing.
(b) OTE The Company and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn Parent shall give (or Parent shall cause Parent’s Subsidiaries to give) any notices to third parties, and use use, and Parent shall cause their respective subsidiaries Parent’s Subsidiaries to use all use, commercially reasonable efforts to obtain any third-third party consents: (1) consents necessary, proper, proper or advisable to consummate the transactions contemplated by Transactions; provided, however, that except as expressly provided in Article VI, no such consents shall constitute conditions to the Closing.
(c) From the date of this Agreement; Agreement until the Effective Time, each of Parent and the Company shall promptly notify the other in writing of any pending or, to the knowledge of Parent or the Company (2) otherwise required under any contractsas the case may be), licensesthreatened action, leasessuit, arbitration or other agreements proceeding or investigation by any Governmental Entity or any other person (i) challenging or seeking material damages in connection with the Merger or the Transactions or (ii) seeking to restrain or prohibit the consummation of the transactions contemplated hereby; or (3) required to prevent a material adverse effect affecting either of their respective business and operations from occurring prior to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, Merger or otherwise satisfied at limit in any material respect the Effective Time, excluding right of Parent or any Parent Subsidiary to own or operate all or any portion of the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In businesses or assets of the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consentCompany.
(d) OTE Each of the Company and TetriDyn Parent shall, and shall promptly notify cause their respective controlled affiliates to, use their commercially reasonable efforts to resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the other of: (i) Merger or the Transactions. In connection therewith, if any material change in its current administrative or future business, assets, liabilities, financial condition, judicial action or results of operations; (ii) any complaints, investigations, or hearings proceeding is instituted (or communications indicating that threatened to be instituted) challenging the same may be contemplated) Transactions as violative of any Law, each of the Company and Parent shall, and shall cause their respective affiliates to, cooperate and use their commercially reasonable efforts to contest and resist, except insofar as the Company and Parent may otherwise agree, any such action or proceeding, including any action or proceeding that seeks a temporary restraining order or preliminary injunction that would prohibit, prevent or restrict consummation of the Merger or the Transactions. In furtherance and not in limitation of the foregoing, Parent shall cooperate in good faith with all Governmental Entities respecting its business and undertake promptly any and all actions required to lawfully complete the Transactions; provided that notwithstanding the foregoing, neither the Company nor Parent shall be required to take any action which is not conditioned on the consummation of the Merger.
(e) Nothing contained in this Agreement shall give Parent or Merger Sub, directly or indirectly, the transactions contemplated hereby; (iii) right to control or direct the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on Company prior to the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life consummation of the matter or Merger. Prior to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life consummation of the matterMerger, the Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its business operations.
(f) Nothing contained in this Agreement shall give the Company, directly or indirectly, the right to control or direct the operations of Parent or Merger Sub. Parent and Merger Sub shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over their business operations.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Intrexon Corp), Merger Agreement (Medistem Inc.)
Appropriate Action; Consents; Filings. (a) OTE The Seller and TetriDyn the Company shall use, and shall cause each of use their respective subsidiaries reasonable best efforts to use, all reasonable efforts to: (i) take, or cause to be taken, all appropriate action, and do, or cause to be done, all things necessary, proper, proper or advisable under applicable Laws or otherwise Law to consummate and make effective the transactions contemplated by this Agreement; , (ii) obtain from any Governmental Entities any all consents, licenses, permits, waivers, approvals, authorizations, authorizations or orders required under Law (including, without limitation, all foreign and domestic (federal, state and local) governmental and regulatory rulings and approvals and parties to be obtained or made by OTE or TetriDyn or any subsidiary contracts) required in connection with the authorization, execution, execution and delivery of this Agreement and the consummation by them of the transactions contemplated hereby, including including, without limitation, the Merger; , (iii) make all necessary filings, and thereafter make any other required submissions, respecting with respect to this Agreement and the Merger required under: under (1A) the Securities Act and the Exchange Act, Act (to the extent applicable) and the rules and regulations thereunder, and any other applicable federal or state securities Laws; laws, (B) the BHCA, the SBL, the SBA and any other applicable federal or state banking laws and (2C) any other applicable Law; provided that, OTE the Company and TetriDyn the Seller shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party non-filing party and its advisers advisors prior to such filings filing and, if requested, shall to accept all reasonable additions, deletions, deletions or changes suggested in connection therewith. OTE The Seller and TetriDyn the Company shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law (including all information required to be included in the Proxy Statement/Prospectus and the Registration Statement) in connection with the transactions contemplated by this Agreement.
(b) OTE and TetriDyn agree . In case at any time after the Effective Time any further action is necessary or desirable to cooperate respecting, to cause each carry out the purposes of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues the proper officers and directors of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree each party to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event this Agreement shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable to consummate the transactions contemplated by this Agreement; (2) otherwise required under any contracts, licenses, leases, or other agreements in connection with the consummation of the transactions contemplated hereby; or (3) required to prevent a material adverse effect affecting either of their respective business and operations from occurring prior to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Timetake all such necessary action.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matter.
Appears in 2 contracts
Samples: Merger Agreement (Gold Banc Corp Inc), Merger Agreement (Marshall & Ilsley Corp/Wi/)
Appropriate Action; Consents; Filings. (a) OTE Upon the terms and TetriDyn shall usesubject to the conditions set forth in this Agreement, each of the Company Parties and each of the Parent Parties shall, and shall cause each of their respective subsidiaries the Company Subsidiaries and the Parent Subsidiaries, respectively, to use, all use its commercially reasonable efforts to: (i) to take, or cause to be taken, all appropriate actionactions, and to do, or cause to be done, and to assist and cooperate with the other party in doing, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise pursuant to any contract or agreement to consummate and make effective effective, as promptly as practicable, the transactions contemplated by this Agreement; (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, or orders required to be obtained or made by OTE or TetriDyn or any subsidiary in connection with the authorization, execution, and delivery of this Agreement Mergers and the consummation of the transactions contemplated hereby, including the Merger; (iii) make all necessary filings, and thereafter make any other required submissions, respecting this Agreement and the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing (i) the taking of all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree actions necessary to take all actions, including cause the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition conditions to Closing not set forth in Article VII to be satisfied; provided, however(ii) the obtaining of all necessary actions or nonactions, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effectwaivers, consents and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable to consummate the transactions contemplated by this Agreement; (2) otherwise required under any contracts, licenses, leases, approvals from Governmental Authorities or other agreements Persons necessary in connection with the consummation of the Mergers and the other transactions contemplated hereby; by this Agreement and the making of all necessary registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authority or other Persons necessary in connection with the consummation of the Mergers and the other transactions contemplated by this Agreement, (3iii) required the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers or the other transactions contemplated by this Agreement, including seeking to prevent a material adverse effect affecting either have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed, and the avoidance of each and every impediment under any antitrust, merger control, competition or trade regulation Law that may be asserted by any Governmental Authority with respect to the Mergers, so as to enable the Closing to occur as soon as reasonably possible, and (iv) the execution and delivery of any additional instruments necessary to consummate the Mergers and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement. In addition, during the Interim Period, the Company Parties shall furnish such information and provide such assistance to, and otherwise cooperate with, the Parent Parties, in each case, as the Parent Parties may reasonably request, in connection with any actions contemplated to be taken by the Parent Parties from and after the Effective Time with respect to all or any portion of the assets of the Company Parties or any of the Company Subsidiaries, provided that any requirement, condition, limitation, understanding, agreement or order that any of the Company Parties or Company Subsidiaries enters into or undertakes at the request of the Parent Parties shall not bind the Company Parties or any other Company Subsidiaries unless and until the Effective Time occurs.
(b) In connection with and without limiting the foregoing, each of the Parent Parties and the Company Parties shall give (or shall cause the Parent Subsidiaries or the Company Subsidiaries, respectively, to give) any notices to Third Parties, and each of the Parent Parties and the Company Parties shall use, and cause each of their respective business and operations from occurring prior Affiliates to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all use, its commercially reasonable efforts to obtain release any Third Party consents not covered by Section 6.6(a) that are proper or advisable to consummate the Mergers. Each of the parties hereto will furnish to the other such necessary information and reasonable assistance as the other may request in connection with the preparation of any guarantees required governmental filings or submissions and will cooperate in responding to any inquiry from a Governmental Authority, including promptly informing the other parties of such inquiry, consulting in advance before making any presentations or submissions to a Governmental Authority, and supplying each other with copies of all material correspondence, filings or communications between either party and any Governmental Authority, with respect to this Agreement. To the extent reasonably practicable, the parties or their Representatives shall have the right to review in advance and each of the parties will consult the others on, all the information relating to the other and each of their Affiliates that appears in any filing made with, or written materials submitted to, any Governmental Authority in connection with the Mergers and the other transactions contemplated by this Agreement, except that confidential competitively sensitive business information may be redacted from such exchanges. To the extent reasonably practicable, none of the parties hereto shall, nor shall they permit their respective Representatives to, participate independently in any owner of TetriDyn meeting or engage in any substantive conversation with any Governmental Authority in respect of any third-filing, investigation or other inquiry without giving the other party indebtedness prior notice of such meeting or obligation that will not conversation and, to the extent permitted by applicable Law, without giving the other parties the opportunity to attend or participate (whether by telephone or in person) in any such meeting with such Governmental Authority. Notwithstanding the foregoing, no such approval or consent from any Third Party with respect to this Agreement or the transactions contemplated herein shall be paid, discharged, or otherwise satisfied at the Effective Time, excluding a condition to the obligations of the Parent Parties to SICOG and EIDC as set forth in subsection 5.12(c)consummate the Mergers.
(iiic) In Notwithstanding anything to the event contrary in this Agreement, in connection with obtaining any approval, waiver or consent from any Person (other than any Governmental Authority) with respect to the Mergers or other transactions contemplated herein, none of the Company Parties, the Parent Parties, any of the Company Subsidiaries, any of the Parent Subsidiaries or any of the their respective Representatives, shall be obligated to pay or commit to pay to such Person whose approval, waiver or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Person; provided, however, that Parent shall be obligated to pay or commit to pay all fees and costs (including all redemption, prepayment, defeasance and similar fees or penalties) contemplated by any contract, agreement or other instrument to which any Company Party or any Company Subsidiary is party or by which any Company Party or any Company Subsidiary is bound to the extent necessary to consummate the Mergers and other transactions contemplated by this Agreement, including all prepayment, defeasance or other fees and penalties contemplated by (i) the prepayment of all amounts outstanding under the Loan Agreements and the pay-off letters to be delivered pursuant to Section 6.2 and (ii) the Convertible Notes Redemption and the Trust Preferred Securities Redemption pursuant to Section 6.19. Subject to the other provisions of this Section 6.6, the parties shall fail cooperate in good faith with respect to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions accommodations that may be reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure appropriate to obtain such consentconsents.
(d) OTE and TetriDyn shall promptly notify Notwithstanding anything in this Section 6.6 to the contrary, no approval, waiver or consent from, nor any notice to, any Third Party (other than a Governmental Authority that is required by Law) with respect to this Agreement, the Mergers or the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or herein shall be a condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations obligations of the subject entity, if in existence on Parent Parties to consummate the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matterMergers.
Appears in 2 contracts
Samples: Merger Agreement (CapLease, Inc.), Merger Agreement (American Realty Capital Properties, Inc.)
Appropriate Action; Consents; Filings. (a) OTE The Company and TetriDyn Parent shall use, and shall cause each of use their respective subsidiaries reasonable best efforts to use, all reasonable efforts to: (i) take, or cause to be taken, all appropriate action, and do, or cause to be done, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise to consummate and make effective the transactions contemplated by this Agreement; Agreement as promptly as practicable, (ii) obtain from any Governmental Entities Entity any consents, licenses, permits, waivers, approvals, authorizations, authorizations or orders required to be obtained or made by OTE the Company or TetriDyn Parent or any subsidiary of their respective Subsidiaries, or to avoid any action or proceeding by any Governmental Entity, in connection with the authorization, execution, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, including including, without limitation, the Merger; , and (iii) make all necessary filings, and thereafter make any other required submissions, respecting with respect to this Agreement and the Merger required under: (1) under the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; Laws and (2) any other applicable Law; provided thatprovided, OTE that the Company and TetriDyn Parent shall cooperate with each other in connection with the making of all such filings, including including, if requested, by providing copies of all such documents to the other Party non-filing party and its advisers advisors prior to such filings filing and, if requested, shall to accept all reasonable additions, deletions, deletions or changes suggested in connection therewith. OTE The Company and TetriDyn Parent shall furnish to each other all information required for any application or other filing to be made pursuant to under the rules and regulations of any applicable Law (including all information required to be included in the Proxy Statement and the Registration Statement) in connection with the transactions contemplated by this Agreement.
(b) OTE The Company and TetriDyn agree to cooperate respecting, to Parent shall give (or shall cause each of their respective subsidiaries Subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanentgive) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use use, and cause their respective subsidiaries Subsidiaries to use all use, reasonable best efforts to obtain any third-third party consents: consents (1i) necessary, proper, proper or advisable to consummate the transactions contemplated by in this Agreement; , (2ii) otherwise required under any contractsto be disclosed in the Company Disclosure Memorandum or the Parent Disclosure Memorandum, licenses, leasesas applicable, or other agreements in connection with the consummation of the transactions contemplated hereby; or (3iii) required to prevent a material adverse effect affecting either of their respective business and operations Material Adverse Effect with respect to the Company or Parent from occurring prior to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) . In the event that any Party either party shall fail to obtain any third-third party consent described in subsection (c)(ii) abovethe first sentence of this Section 5.6(b), such Party party shall use all its reasonable best efforts, and shall take any such actions reasonably requested by any the other Partyparty hereto, to limit the minimize any adverse effect upon OTE the Company and TetriDynParent, their respective Subsidiaries, and their respective subsidiaries and their respective businessesbusinesses resulting, resulting or that which could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matter.
Appears in 2 contracts
Samples: Merger Agreement (Pfsweb Inc), Merger Agreement (Ecost Com Inc)
Appropriate Action; Consents; Filings. (a) OTE CYL and TetriDyn GHS shall use, and shall cause each of use their respective subsidiaries to use, all reasonable best efforts to: (i) take, or cause to be taken, all appropriate action, and do, or cause to be done, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise to consummate and make effective the transactions contemplated by this Agreement; Agreement as promptly as practicable, (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, authorizations or orders required to be obtained or made by OTE GHS or TetriDyn CYL or any subsidiary of their subsidiaries in connection with the authorization, execution, execution and delivery of this Agreement and the consummation of the transactions contemplated herebyherein, including including, without limitation, the Merger; Exchange, (iii) make all necessary filings, and thereafter make any other required submissions, respecting with respect to this Agreement and the Merger Exchange (including the USN Spin-off required under: by Section 7.3(c)) required under (1A) the Securities Act and the Exchange Act, Act and the rules and regulations thereunder, and any other applicable federal or state securities Laws; laws, (B) the Xxxx-Xxxxx-Xxxxxx Act ("HSR Act") and (2C) any other applicable Law; provided that, OTE PROVIDED that GHS and TetriDyn CYL shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party non-filing party and its advisers advisors prior to such filings filing and, if requested, shall to accept all reasonable additions, deletions, deletions or changes suggested in connection therewith. OTE CYL and TetriDyn GHS shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE Each of CYL and TetriDyn GHS agree to cooperate respecting, to cause each of and use their respective subsidiaries to cooperate respecting, and to use all reasonable best efforts vigorously to contest and resist any action, including legislative, administrative, administrative or judicial action, and to have vacated, lifted, reversed, reversed or overturned any decree, judgment, injunction, injunction or other order (whether temporary, preliminary, preliminary or permanent) (an “"Order”") of any Governmental Entity that is in effect and that restricts, prevents, prevents or prohibits the consummation of the Merger Exchange or any other transactions contemplated by this Agreement, including including, without limitation, by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actionsappeal; PROVIDED, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, howeverHOWEVER, that in no event shall OTE either party take, or be required to take take, any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn CYL or an GHS Material Adverse Effect.
(ic) OTE Each of CYL and TetriDyn GHS shall give (or shall cause their respective subsidiaries to give) any notices to third parties, and use use, and cause their respective subsidiaries to use all reasonable use, its best efforts to obtain any third-third party consents: (1i) necessary, proper, proper or advisable to consummate the transactions contemplated by in this Agreement; (2ii) disclosed or required to be disclosed in the CYL Disclosure Schedule or the GHS Disclosure Schedule, as the case may be; (iii) otherwise required under any contracts, licenses, leases, leases or other agreements in connection with the consummation of the transactions contemplated herebyherein; or (3iv) required to prevent a material adverse effect affecting either of their respective business and operations from occurring prior to the Effective Time or a TetriDyn CYL Material Adverse Effect from occurring prior to or after the Effective Time or an GHS Material Adverse Effect from occurring prior to or after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iiid) In the event that any Party either party shall fail to obtain any third-third party consent described in subsection (c)(iic) above, such Party party shall use all reasonable its best efforts, and shall take any such actions reasonably requested by any the other Partyparty hereto, to limit the minimize any adverse effect upon OTE CYL and TetriDynGHS, their respective subsidiaries, and their respective subsidiaries and their respective businessesbusinesses resulting, resulting or that which could reasonably be expected to result result, after the Effective TimeDate, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matter.
Appears in 2 contracts
Samples: Contribution and Exchange Agreement (Robbins Research International Inc), Contribution and Exchange Agreement (GHS Inc)
Appropriate Action; Consents; Filings. (a) OTE Subject to the terms and TetriDyn shall useconditions in this Agreement, the Company and shall cause each of their respective subsidiaries to use, all reasonable efforts toParent will: (i) take, or cause promptly after the date of this Agreement make their respective filings under the HSR Act with respect to be taken, all appropriate action, the Merger and do, or cause to be done, all things necessary, proper, or advisable thereafter shall promptly make any other required submissions under applicable Laws or otherwise to consummate and make effective the transactions contemplated by this AgreementHSR Act; (ii) obtain from any Governmental Entities any use their reasonable best efforts to cooperate with one another in (A) determining which filings and notifications are required to be made prior to the Effective Time under applicable Law with, and which consents, licenses, approvals, permits, waivers, approvals, authorizations, orders or orders authorizations are required to be obtained or made by OTE or TetriDyn or any subsidiary prior to the Effective Time under applicable Law from, Governmental Entities of the United States and the several states in connection with the authorization, execution, execution and delivery of this Agreement and the consummation of the Merger and the transactions contemplated hereby; (B) timely making all such filings and notifications and timely seeking all such consents, licenses, approvals, permits, waivers, orders or authorizations; and (C) as promptly as practicable, responding to any request for information from such Governmental Entities; (iii) subject to any restrictions under antitrust Laws, to the extent practicable, promptly notify each other of any communication to that party from any Governmental Entity with respect to this Agreement and the transactions contemplated hereby and permit the other party to review in advance any proposed written communication to any Governmental Entity; (iv) not agree to participate in any meeting with any Governmental Entity in respect of any filings, investigation or other inquiry with respect to this Agreement and the transactions contemplated hereby unless it consults with the other party in advance and, to the extent permitted by such Governmental Entity, give the other party the opportunity to attend and participate thereat, in each case to the extent practicable; (v) subject to any restrictions under antitrust Laws, furnish the other party with copies of all correspondence, filings and communications (and memoranda setting forth the substance thereof) between it and its affiliates and their respective representatives on the one hand, and any Governmental Entity or members of its staff on the other hand, with respect to this Agreement and the transactions contemplated hereby (excluding documents and communications which are subject to preexisting confidentiality agreements and to the attorney client privilege or work product doctrine); and (vi) furnish the other party with such necessary information and reasonable assistance as such other party and its affiliates may reasonably request in connection with their preparation of necessary filings, registration, or submissions of information to any Governmental Entities in connection with this Agreement and the transactions contemplated hereby, including without limitation any filings necessary or appropriate under the Merger; (iii) make all necessary filings, and thereafter make any other required submissions, respecting this Agreement and provisions of the Merger required under: (1) the Securities Act and the Exchange HSR Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE Without limiting Section 5.06(a) and TetriDyn agree subject in all respects to cooperate respectingSections 5.06(c) and 5.06(d), Parent and the Company will: (i) each use its reasonable best efforts to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrativeavoid the entry of, or judicial action, and to have vacated, lifted, reversed, overturned or overturned terminated, any decreeorder, judgment, injunction, injunction or other order decree (whether temporary, preliminary, preliminary or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other judicial, administrative or legislative action or proceeding ("Order") that would restrain, prevent or delay the closing of the transactions contemplated by this Agreement, including on or before December 31, 2001, including, without limitation, defending through litigation on the merits any claim asserted in any court by vigorously pursuing any party; and (ii) each use its reasonable best efforts to take any steps necessary to avoid or eliminate each and every impediment under any antitrust, competition or trade regulation Law that may be asserted by any Governmental Entity with respect to the Merger so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than December 31, 2001).
(c) Without limiting Section 5.06(a) and subject in all available avenues respects to Section 5.06(d), Parent, on behalf of administrative Parent and judicial appeal and legislative action. OTE and TetriDyn also the Company, shall agree to divest, hold separate, or otherwise take all actionsor commit to take any action that limits its freedom of action with respect to, including or its ability to retain, any of the disposition businesses, product lines or assets of assets Parent and/or the Company or the withdrawal from doing business in particular jurisdictionsany of its subsidiaries, required by regulatory authorities as a condition to the granting of provided that any approvals required in order to permit such action is conditioned upon the consummation of the Merger. The Company agrees and acknowledges that, in connection with any filing or submission required, action to be taken or commitment to be made by Parent, the Company or any of its respective subsidiaries to consummate the Merger or as may be required other transactions contemplated in this Agreement, neither the Company nor any of its subsidiaries shall, without Parent's prior written consent, divest any assets, commit to avoid, lift, vacate, any divestiture of assets or reverse businesses of the Company and its subsidiaries or take any legislative other action or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required commit to take any action that would limit the Company's, Parent's or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable to consummate the transactions contemplated by this Agreement; (2) otherwise required under any contracts, licenses, leases, or other agreements in connection with the consummation of the transactions contemplated hereby; or (3) required to prevent a material adverse effect affecting either of their respective business and operations from occurring prior to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release subsidiaries' freedom of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, dischargedaction with respect to, or otherwise satisfied at the Effective Timetheir ability to retain, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and of their respective subsidiaries and their respective businesses, resulting product lines or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consentassets.
(d) OTE and TetriDyn Notwithstanding the foregoing paragraphs of this Section 5.06, nothing in this Agreement shall promptly notify require Parent to agree to the sale, transfer, divestiture or other disposition of any assets (including any lines of business) of Parent, the Company or any of their respective subsidiaries or any of the other of: actions contemplated in Section 5.06(c) if Parent concludes that the taking of such action or the making of any commitments or the consequences thereof would be reasonably likely to have a Combined Company Material Adverse Effect (ias defined below). Without limiting the foregoing, Parent hereby agrees that it will agree to divest the processing plants set forth on Exhibit 5.06(d) to this Agreement, and such other assets as are reasonably necessary to operate such plants, in connection with its seeking, and will so divest such plants if necessary in order to obtain, any material necessary consent, license, approval, permit, waiver, order or authorization under applicable antitrust laws with respect to the transactions contemplated hereby and that such divestitures, individually or in the aggregate, shall not constitute a Combined Company Material Adverse Effect. For purposes of this Agreement "Combined Company Material Adverse Effect" means any change in its current or future effect that, individually or when taken together with all other such changes or effects, would be materially adverse to the business, operations, assets, liabilities, financial condition, or results of operations; operations of the Parent and its subsidiaries (ii) any complaints, investigations, or hearings (or communications indicating that including the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of Company and its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at after the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the mattertaken as a whole.
Appears in 2 contracts
Samples: Merger Agreement (Dean Foods Co), Merger Agreement (Suiza Foods Corp)
Appropriate Action; Consents; Filings. (a) OTE and TetriDyn shall useSubject to Section 6.6, and shall cause each of the parties hereto will use their respective subsidiaries to use, all reasonable best efforts to: (i) take, or cause to be taken, all appropriate action, and do, or cause to be done, all things necessary, proper, or advisable under applicable Laws or otherwise to consummate and make effective the transactions contemplated by this Agreement; (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, or orders required hereby and to be obtained or made by OTE or TetriDyn or any subsidiary in connection with cause the authorization, execution, and delivery of this Agreement and the consummation of the transactions contemplated hereby, including the Merger; (iii) make all necessary filings, and thereafter make any other required submissions, respecting this Agreement and conditions to the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other set forth in connection with the making of all such filings, including providing copies of all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not Article VII to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
including (i) OTE the obtaining of all necessary actions or nonactions, consents and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable to consummate the transactions contemplated by this Agreement; (2) otherwise required under any contracts, licenses, leases, approvals from Governmental Authorities or other agreements persons necessary in connection with the consummation of the transactions contemplated hereby; by this Agreement, including the Merger, and the making of all necessary registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary to obtain an approval from, or to avoid an action or proceeding by, any Governmental Authority or other persons necessary in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, (3ii) required the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions, including the Merger, performed or consummated by such party in accordance with the terms of this Agreement, including seeking to prevent a material adverse effect affecting either have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed, and (iii) the execution and delivery of their respective business any additional instruments necessary to consummate the Merger and operations from occurring prior any other transactions to be performed or consummated by such party in accordance with the Effective Time or a TetriDyn Material Adverse Effect from occurring after terms of this Agreement and to carry out fully the Effective Timepurposes of this Agreement.
(iib) OTE Each of Parent and TetriDyn the Company shall give (or shall cause its respective Subsidiaries to give) any notices to third parties, and Parent shall use, and cause each of its affiliates to use, its reasonable best efforts, and the Company shall use and cause their respective subsidiaries to use all its reasonable best efforts to cooperate with Parent in its efforts, to obtain release any third party consents not covered by subsection (a) above that are necessary, proper or advisable to consummate the Merger. Each of the parties hereto will furnish to the other such necessary information and reasonable assistance as the other may request in connection with the preparation of any guarantees by required governmental filings or submissions and will cooperate in responding to any owner inquiry from a Governmental Authority, including immediately informing the other party of TetriDyn such inquiry, consulting in advance before making any presentations or submissions to a Governmental Authority, and supplying each other with copies of all material correspondence, filings or communications between either party and any third-Governmental Authority with respect to this Agreement. Notwithstanding the foregoing, obtaining any third party indebtedness or obligation that will consents pursuant to this Section 6.4(b) shall not be paid, discharged, or otherwise satisfied at considered a condition to the obligations of the Parent and Merger Sub to consummate the Merger.
(c) Following the Effective Time, excluding each of Parent, Merger Sub and the obligations Company agrees to SICOG cooperate fully with the other parties to this Agreement, to execute such further instruments, documents and EIDC agreements, to give such further written assurances, as set forth in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions may be reasonably requested by any other Party, party to limit this Agreement and to carry into effect the adverse effect upon OTE intents and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consentpurposes of this Agreement.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matter.
Appears in 2 contracts
Samples: Merger Agreement (theMaven, Inc.), Merger Agreement (Thestreet, Inc.)
Appropriate Action; Consents; Filings. (a) OTE Seller and TetriDyn MRG shall use, and shall cause each of their respective subsidiaries to use, all reasonable efforts to: to (i) take, or cause to be taken, all appropriate action, and do, or cause to be done, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise to consummate and make effective the transactions contemplated by this Agreement; , (ii) obtain from any Governmental Entities governmental entities any consents, licenses, permits, waivers, approvals, authorizations, authorizations or orders required to be obtained or made by OTE MRG or TetriDyn or any subsidiary Seller in connection with the authorization, execution, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, including the Merger; (iii) make all necessary filings, and thereafter make any other required submissions, respecting with respect to this Agreement and the Merger required under: under (1A) the Securities Act and the Exchange Act, Act and the rules and regulations thereunder, and any other applicable federal or state securities Laws; laws, and (2B) any other applicable Lawfederal or state law; provided that, OTE that MRG and TetriDyn Seller shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party nonfiling party and its advisers advisors prior to such filings and, if requested, shall accept all reasonable additions, deletions, deletions or changes suggested in connection therewith. OTE Seller and TetriDyn MRG shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE Each of Seller and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn MRG shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-third party consents: consents (1A) necessary, proper, proper or advisable to consummate the transactions contemplated by this Agreement; , (2B) otherwise required under any contracts, licenses, leases, leases or other agreements in connection with the consummation of the transactions contemplated hereby; hereby or (3C) required to prevent a material adverse effect affecting either of their respective business and operations on Seller or MRG from occurring prior to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) Closing Date. In the event that any Party party shall fail to obtain any third-such third party consent described in subsection (c)(ii) aboveconsent, such Party party shall use all reasonable efforts, and shall take any such actions reasonably requested by any the other Partyparty, to limit the adverse effect upon OTE MRG and TetriDyn, and their respective subsidiaries and their respective businesses, Seller resulting or that which could reasonably be expected to result after the Effective TimeClosing Date, from the failure to obtain such consent.
(dc) OTE and TetriDyn MRG shall promptly notify the other of: Seller of (iw) any material change in its current or future business, assets, liabilities, financial condition, condition or results of operations; , (iix) any complaints, investigations, investigations or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting governmental entities with respect to its business or the transactions contemplated hereby; , (iiiy) the institution or the threat of material litigation involving it or any of its subsidiaries; subsidiaries or (ivz) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, covenants or agreements set forth herein not to be true and correct at the Effective TimeClosing Date. As used in the preceding sentence, “material "litigation” " means any case, arbitration, arbitration or adversary proceeding wheresoever filed or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matterinstituted.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Montgomery Realty Group Inc), Purchase and Sale Agreement (Montgomery Realty Group Inc)
Appropriate Action; Consents; Filings. (a) OTE Subject to the terms and TetriDyn shall useconditions of this Agreement, and shall cause each of the parties hereto will use their respective subsidiaries to use, all reasonable best efforts to: (i) take, or cause to be taken, all appropriate action, and do, or cause to be done, all things necessary, proper, or advisable under applicable Laws or otherwise to consummate and make effective the transactions contemplated by this Agreement; (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, or orders required to be obtained or made by OTE or TetriDyn or any subsidiary in connection with the authorization, execution, and delivery of this Agreement and to cause the consummation of the transactions contemplated hereby, including the Merger; (iii) make all necessary filings, and thereafter make any other required submissions, respecting this Agreement and conditions to the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other set forth in connection with the making of all such filings, including providing copies of all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not Article VI to be satisfied; provided, however, that in no event shall OTE be required including using reasonable best efforts to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
accomplish the following: (i) OTE the obtaining of all necessary actions or non-actions, consents and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable to consummate the transactions contemplated by this Agreement; (2) otherwise required under any contracts, licenses, leases, approvals from Governmental Authorities or other agreements Persons necessary in connection with the consummation of the transactions contemplated hereby; by this Agreement, including the Merger, and the making of all necessary registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary to obtain an approval from, or to avoid a Proceeding by, any Governmental Authority or other Persons necessary in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, (3ii) required the defending of any lawsuits or other legal Proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated by this Agreement, including the Merger, performed or consummated by such party in accordance with the terms of this Agreement, including seeking to prevent a material adverse effect affecting either have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed and (iii) the execution and delivery of their any additional instruments reasonably necessary to consummate the Merger and any other transactions to be performed or consummated by such party in accordance with the terms of this Agreement and to carry out fully the purposes of this Agreement. Each of the parties hereto shall promptly (and in no event later than ten (10) days after the date of this Agreement, unless otherwise agreed to by the parties) make its respective business filings under the HSR Act, and operations from occurring prior thereafter make any other applications and filings as reasonably determined by the Company and Parent under other applicable Antitrust Laws with respect to the Effective Time or a TetriDyn Material Adverse Effect from occurring transactions contemplated by this Agreement as promptly as reasonably practicable (and in no event later than thirty (30) days after the Effective Timedate of this Agreement, unless otherwise agreed to by the parties) in draft form. The Company and Parent shall each pay fifty percent (50%) of all filing fees and other charges for the filings required under any Antitrust Law; provided, that, for the avoidance of doubt, the Company and Parent shall each bear its own legal fees, including consultant fees, incurred in connection with any applications and filings required under applicable Antitrust Laws.
(b) Subject to Parent’s obligations in Section 5.4(d), in connection with and without limiting the efforts referenced in Section 5.4(a), Parent shall, after reasonable consultation with the Company, have the right to devise, control and direct the strategy and timing for, and make all decisions relating to (and shall take the lead in all meetings and communications with any Governmental Authority relating to), any required submissions, responses to information requests and filings to any Governmental Authority or other Person and obtaining any consent or approval of any Governmental Authority or other Person contemplated by this Section 5.4, including resolving any Proceeding related to any such consent or approval and all matters relating to any Divestiture Actions, provided that each of the parties hereto will (i) furnish to the other such necessary information and reasonable assistance as the other may request in connection with the preparation of any governmental filings, submissions or other documents; (ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all give the other reasonable efforts to obtain release prior notice of any guarantees by any owner of TetriDyn such filing, submission or other document and of any third-substantive communication with or from any Governmental Authority regarding the transactions contemplated by this Agreement, and permit the other to review and discuss in advance, and consider in good faith the views, and secure the participation, of the other in connection with any such filing, submission, document or communication; and (iii) cooperate in responding as promptly as reasonably practicable to any investigation or other inquiry from a Governmental Authority or in connection with any Proceeding initiated by a Governmental Authority or private party, including informing the other party indebtedness as soon as practicable of any such investigation, inquiry or obligation that Proceeding, and consulting in advance before making any presentations or submissions to a Governmental Authority, or, in connection with any Proceeding initiated by a private party, to any other Person. In addition, each of the parties hereto will not be paidgive reasonable notice to and consult with the other in advance of any meeting, dischargedconference, or otherwise satisfied at Proceeding with any Governmental Authority, or in connection with any Proceeding by a private party, with any other Person, and to the Effective Timeextent permitted by the Governmental Authority or other Person, excluding give the obligations other the opportunity to SICOG attend and EIDC as set forth participate in subsection 5.12(c)such meeting, conference, or Proceeding.
(iiic) In The parties shall consult with each other with respect to obtaining all permits and Consents necessary to consummate the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) abovetransactions contemplated by this Agreement, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit including the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consentMerger.
(d) OTE In furtherance of and TetriDyn without limiting the efforts referenced in Section 5.4(a), Parent and the Company (if requested by Parent), along with their respective Subsidiaries, shall promptly notify use reasonable best efforts to avoid or eliminate each and every impediment under any Antitrust Law that may be asserted by any Governmental Authority so as to enable the other of: consummation of the Merger as soon as reasonably practicable (and in any event no later than the Termination Date), including (i) using reasonable best efforts to sell, divest, hold separate, lease, license, transfer, dispose of, subject to conduct remedies, otherwise encumber or impair or take any material change in its current or future business, other action with respect to any assets, liabilitiesproperties, financial conditionbusinesses or product lines of Parent or the Company or any of their respective Subsidiaries Affiliates (separately and, in the aggregate, “Antitrust Action”), and (ii) in the event that any permanent or preliminary injunction or other Order is entered or becomes reasonably foreseeable to be entered in any Proceeding that would make consummation of the Merger unlawful or that would otherwise prevent or delay consummation of the Merger, using reasonable best efforts to vacate, modify or suspend such injunction or Order; provided that (x) no party hereto shall be required pursuant to this Section 5.4 to commit to or effect any action that is not conditioned upon the consummation of the Merger and (y) Parent shall, after reasonable consultation with the Company, control the decision to undertake and the process relating to any action contemplated above in this Section 5.4(d), and the Company, if so requested by Parent, shall take any and all actions so requested by Parent, and for the avoidance of doubt, the Company shall not, unless requested to do so by Parent, commit to or effect any action contemplated above in this Section 5.4(d). Without limiting the foregoing, Parent shall take all such action (including Antitrust Action) as may be necessary to avoid or eliminate, and minimize the impact of, each and every impediment under any Antitrust Law that is asserted by any Governmental Entity with respect to the Merger so as to enable the Closing to occur as soon as reasonably possible (and in any event no later than the Termination Date); provided, however, that nothing contained in this Agreement requires Parent or the Company to take, or results cause to be taken, any Antitrust Action with respect to (i) assets, facilities or brands of operations; Parent or the Company or their respective Subsidiaries or Affiliates representing, accounting for, or directly supporting, in the aggregate, more than $350,000,000 of the annual net sales of Parent and its Subsidiaries and the Company and its Subsidiaries, taken as a whole, during the twelve (12) month period ending December 31, 2020 (regardless of the revenue generated by such assets, facilities or brands after December 31, 2020), or (ii) any complaintsassets, investigationsfacilities or business operations of the brands set forth on Section 5.4(d) of the Parent Disclosure Letter (each of the foregoing clauses (i) and (ii), an “Unacceptable Condition”).
(e) Each of the parties hereto agrees that, from the date of this Agreement until the earlier of the Effective Time and the date, if any, on which this Agreement is terminated in accordance with Section 7.1, it shall not, and shall ensure that none of their Subsidiaries shall, consummate, enter into any agreement providing for, or hearings (announce, any investment, acquisition, divestiture, merger or communications indicating other business combination that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might would reasonably be expected to cause any of its representations, warranties, covenants, materially delay or agreements set forth herein not to be true and correct at prevent the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations consummation of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the mattertransactions contemplated by this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Middleby Corp), Merger Agreement (Welbilt, Inc.)
Appropriate Action; Consents; Filings. (a) OTE Subject to the terms and TetriDyn shall useconditions of this Agreement (including the limitations set forth in Section 6.6), and shall cause each of the parties hereto will use their respective subsidiaries to use, all reasonable best efforts to: (i) take, or cause to be taken, all appropriate action, and do, or cause to be done, all things necessary, proper, or advisable under applicable Laws or otherwise to consummate and make effective the transactions contemplated by this Agreement; (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, or orders required hereby and to cause the conditions to the First Merger set forth in Article VII to be obtained satisfied, including using reasonable best efforts to accomplish the following: (i) the obtaining of all necessary actions or made by OTE non-actions, consents and approvals from Governmental Authorities or TetriDyn or any subsidiary other Persons necessary in connection with the authorization, execution, and delivery of this Agreement and the consummation of the transactions contemplated hereby, including the First Merger; (iii) make all necessary filings, and thereafter make any other required submissions, respecting this Agreement and the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other in connection with the making of all such filingsnecessary registrations and filings (including filings with Governmental Authorities, including providing copies if any) and the taking of all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or steps as may be required necessary to avoid, lift, vacateobtain an approval from, or reverse to avoid a Proceeding by, any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable to consummate the transactions contemplated by this Agreement; (2) otherwise required under any contracts, licenses, leases, Governmental Authority or other agreements Persons necessary in connection with the consummation of the transactions contemplated hereby; or (3) required to prevent a material adverse effect affecting either of their respective business and operations from occurring prior to , including the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operationsFirst Merger; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) defending of any Governmental Entities respecting its business lawsuits or other legal Proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including the First Merger, performed or consummated by such party in accordance with the terms of this Agreement, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed; and (iii) the institution or execution and delivery of any additional instruments reasonably necessary to consummate the threat of material litigation involving it or First Merger and any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not other transactions to be true performed or consummated by such party in accordance with the terms of this Agreement and correct at to carry out fully the Effective Timepurposes of this Agreement. As used in Without limiting the preceding sentencegenerality of the foregoing, each of the parties hereto shall make any applications and filings as reasonably determined by the Company and Parent are required under applicable United States or foreign competition, antitrust, merger control or investment Laws (“material litigation” means any case, arbitration, or adversary proceeding or other matter that is material Antitrust Laws”) with respect to the business and operations of the subject entitytransactions contemplated hereby as promptly as practicable, if but in existence on the date hereof, or for which the legal no event later than as required by Law. Parent shall pay all filing fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over charges for the life filings required under any Antitrust Law by the Company and Parent.
(b) In connection with and without limiting the efforts referenced in this Section 6.4, each of the matter parties hereto will furnish to the other such necessary information and reasonable assistance as the other may reasonably request in connection with the preparation of any required governmental filings or submissions and will cooperate in responding to OTE (any investigation or other inquiry from a Governmental Authority or in connection with any subsidiary) might reasonably be expected Proceeding initiated by a private party, including immediately informing the other party of such inquiry, consulting in advance before making any presentations or submissions to exceed $10,000 over the life a Governmental Authority, or in connection with any Proceeding initiated by a private party, to any other Person, and supplying each other with copies of all material correspondence, filings or communications between either party and any Governmental Authority, or in connection with any Proceeding initiated by a private party, between either party and any other Person with respect to this Agreement. In addition, each of the matterparties hereto will give reasonable notice to and consult with the other in advance of any meeting or conference with any Governmental Authority, or in connection with any Proceeding by a private party, with any other Person, and to the extent permitted by the Governmental Authority or other Person, give the other the opportunity to attend and participate in such meeting or conference.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Portman Ridge Finance Corp), Merger Agreement (Harvest Capital Credit Corp)
Appropriate Action; Consents; Filings. (a) OTE The Company shall promptly prepare and TetriDyn file with the SEC the Proxy Statement and shall useuse its commercially reasonable efforts to have the Proxy Statement cleared by the SEC as promptly as practicable after such filing, and the Company shall cause each thereafter mail or deliver the Proxy Statement to its Shareholders. The Company shall notify Acquiror of the receipt of, and immediately provide to Acquiror true and complete copies of, any comments of the SEC with respect to the Proxy Statement or the transactions contemplated hereby and any requests by the SEC for any amendment or supplement thereto or for additional information.
(b) Acquiror shall, upon request, furnish the Company with all information concerning Acquiror as may be reasonably necessary for inclusion in the Proxy Statement that may be furnished to the Shareholders in connection with the Special Meeting (as defined in Section 7.4 hereof). None of the information relating to Acquiror supplied or to be supplied by Acquiror to the Company expressly for inclusion in such Proxy Statement, as of the date such Proxy Statement is first mailed to Shareholders, at the time of any amendments thereto and at the time of the meeting of Shareholders to which such Proxy Statement relates, will contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.
(c) Upon the terms and subject to the conditions set forth in this Agreement, the Parties shall use their respective subsidiaries to use, all commercially reasonable efforts to: (i) to take, or cause to be taken, all appropriate action, and do, or cause to be done, all things necessary, proper, or advisable required under applicable Laws Law or otherwise to consummate and make effective the transactions contemplated by this Agreement as promptly as practicable, including without limitation (i) executing and delivering any additional instruments necessary, proper or advisable to consummate the transactions contemplated by, and to carry out fully the purposes of, this Agreement; , (ii) obtain obtaining from any Governmental Entities Bodies any consents, licenses, permits, waivers, approvals, authorizations, or orders Permits required to be obtained or made by OTE Acquiror, Acquiror Sub or TetriDyn or any subsidiary the Company in connection with the authorization, execution, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, including the Merger; herein and (iii) make making all necessary filings, and thereafter make making any other required submissions, respecting with respect to this Agreement under any applicable Law, including without limitation making any filings required to be made pursuant to the HSR Act; provided that Acquiror, Acquiror Sub and the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn Company shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other non-filing Party and its advisers advisors prior to such filings and, if requested, shall accept filing and discussing all reasonable additions, deletions, deletions or changes suggested in connection therewith. OTE The Company, Acquiror and TetriDyn Acquiror Sub shall furnish to each other all information reasonably required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement. Any and all filing fees in respect of such filings shall be paid fifty percent (50%) by Acquiror and fifty percent (50%) by the Company.
(bd) OTE and TetriDyn agree to cooperate respectingExcept as the Parties may otherwise agree, to cause each of their respective subsidiaries to cooperate respectingthe Company, on the one hand, and to use all reasonable efforts vigorously to contest Acquiror and resist any actionAcquiror Sub, including legislativeon the other, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices required to be given by any of them, as applicable, to third parties, and use (and in the case of Acquiror, shall cause Acquiror Sub to use) their respective subsidiaries to use all commercially reasonable efforts to obtain any third-at the earliest practicable date all third party consents: (1) necessary, properapprovals or waivers required to obtained by them, or advisable as applicable, in order to consummate the transactions contemplated by in this Agreement; (2) otherwise required under any contracts, licenses, leases, or other agreements in connection with the consummation of the transactions contemplated hereby; or (3) required to prevent a material adverse effect affecting either of their respective business and operations from occurring prior to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(iie) OTE and TetriDyn shall use and cause their respective subsidiaries Subject to use all reasonable efforts to obtain release the provisions of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paidSection 7.3(g), discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party either the Company or Acquiror shall fail to obtain any third-party consent consent, approval or waiver described in subsection (c)(ii) aboveSection 7.3(d), such Party shall use all its commercially reasonable efforts, and shall take any such actions reasonably requested by any the other PartyParties, to limit the minimize any adverse effect upon OTE the Company and TetriDyn, Acquiror or Acquiror Sub and their respective subsidiaries and their respective businessesbusinesses resulting, resulting or that which could reasonably be expected to result after the Effective Time, from the failure to obtain such consent, approval or waiver.
(df) OTE In order to assist Acquiror with any third party financing in connection with Merger and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results consummation of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; , the Company shall, and shall cause each of its Subsidiaries to, use commercially reasonable efforts to provide such assistance and cooperation as Acquiror and its Affiliates may reasonably request (provided that such requested cooperation does not unreasonably interfere with the ongoing operations of the Company and its Subsidiaries), including (i) assisting in the preparation of customary offering memoranda or similar documents or marketing material, and cooperating with lenders, (ii) making senior management of the Company reasonably available for customary meetings, (iii) cooperating with prospective lenders, and their respective advisors in performing their due diligence, (iv) providing existing financial statements and financial and other information reasonably required by lenders, and (v) helping procure other definitive financing documents or other reasonably requested certificates or documents, including pledge and security documents, customary certificates, legal opinions and real estate title documentation.
(g) Notwithstanding anything to the institution or the threat of material litigation involving it contrary herein, nothing in this Agreement shall require Acquiror or any of its subsidiaries; Subsidiaries to (i) agree to or to effect any divestiture, hold separate (including by establishing a trust or otherwise), settlement, undertaking, consent decree, or enter into any license or similar agreement with respect to, or agree to restrict its ownership or operation of, any business or assets of the Company or its Subsidiaries or of Acquiror or its Subsidiaries, (ii) enter into, amend or agree to enter into or amend, any Contracts of the Company or its Subsidiaries or of Acquiror or its Subsidiaries, (iii) otherwise waive, abandon or alter any material rights or obligations of the Company or its Subsidiaries or of Acquiror or its Subsidiaries or (iv) file or defend any event lawsuit, appeal any judgment or condition contest any injunction issued in a proceeding initiated by a Governmental Body; or (v) pay any monies or other consideration in order to obtain any consent, approval or waiver that might reasonably be expected relates to cause any of the Company or its representations, warranties, covenants, assets or agreements that is otherwise binding upon the Company or its assets.
(h) The Company shall use commercially reasonable efforts to obtain the consents set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, on Schedule 5.27(a) on or adversary proceeding or other matter that is material prior to the business and operations Closing Date. The Company shall no later than five (5) days prior to the Special Meeting deliver to Acquiror a list of the subject entity, if in existence on names and addresses of all holders of record of Common Stock and the date hereof, or for which the legal fees number and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life class of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the mattershares held by each such holder.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Quovadx Inc), Merger Agreement (Quovadx Inc)
Appropriate Action; Consents; Filings. (a) OTE The Company and TetriDyn Parent shall each use, and shall cause each of their respective subsidiaries to use, all reasonable efforts to: to (i) take, or cause to be taken, all appropriate action, and do, or cause to be done, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise to consummate and make effective the transactions contemplated by this Agreement; (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, or orders required to be obtained or made by OTE or TetriDyn or any subsidiary in connection with the authorization, execution, and delivery of this Agreement and the consummation of the transactions contemplated hereby, including the Merger; (iii) make all necessary filings, and thereafter make any other required submissions, respecting this Agreement and the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.transactions
(b) OTE Parent and TetriDyn the Company agree to cooperate respectingwith respect to, to and shall cause each of their respective subsidiaries to cooperate respectingwith respect to, and agree to use all reasonable efforts vigorously to contest and resist resist, any action, including legislative, administrative, administrative or judicial action, and to have vacated, lifted, reversed, reversed or overturned any decree, judgment, injunction, injunction or other order (whether temporary, preliminary, preliminary or permanent) (an “"Order”") of any Governmental Entity that is in effect and that restricts, prevents, prevents or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including including, without limitation, by vigorously pursuing all available avenues of administrative and judicial appeal and all available legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE Each of the Company and TetriDyn Parent shall give (or shall cause their respective subsidiaries to give) any notices to third parties, and use use, and cause their respective subsidiaries to use all reasonable efforts to obtain any third-third party consents: consents (1A) necessary, proper, proper or advisable to consummate the transactions contemplated by this Agreement; , (2B) otherwise required under any contracts, licenses, leases, leases or other agreements in connection with the consummation of the transactions contemplated hereby; hereby or (3C) required to prevent a material adverse effect affecting either of their respective business and operations Company Material Adverse Effect from occurring prior to the Effective Time or a TetriDyn Parent Material Adverse Effect from occurring prior to or after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party party shall fail to obtain any third-third party consent described in subsection (c)(iic)(i) above, such Party party shall use all reasonable efforts, and shall take any such actions reasonably requested by any the other Partyparties, to limit the adverse effect upon OTE the Company and TetriDynParent, their respective subsidiaries, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.their
(d) OTE Each of Parent and TetriDyn the Company shall promptly notify the other of: of (i) any material change in its current or future business, assets, liabilities, financial condition, condition or results of operations; , (ii) any complaints, investigations, investigations or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting with respect to its business or the transactions contemplated hereby; , (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; subsidiaries or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, covenants or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “"material litigation” " means any case, arbitration, arbitration or adversary proceeding or other matter that is material which would have been required to be disclosed on the business and operations of Company Disclosure Schedule pursuant to Section 3.09 or the subject entityParent Disclosure Schedule pursuant to Section 4.09, as the case may be, if in existence on the date hereof, or for in respect of which the legal fees and other costs to TetriDyn the Company or Parent (or their respective subsidiaries), as the case may be, might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 250,000 over the life of the matter.
Appears in 2 contracts
Samples: Merger Agreement (Harte Hanks Communications Inc), Merger Agreement (Dimark Inc)
Appropriate Action; Consents; Filings. (a) OTE Prior to the Effective Time, the Company shall use its commercially reasonable efforts to obtain any Consents of third parties with respect to any Company Material Contracts as may be necessary or appropriate for the consummation of the Transactions or required by the terms of any such Company Material Contract as a result of the execution, performance or consummation of the Transactions; in each case to the extent reasonably requested in writing by Parent, including without limitation the Consents set forth on Section 4.5(a) of the Company Disclosure Letter with respect to which the Company shall consult and TetriDyn cooperate with Parent in obtaining. In the event that such third-party Consent described in this Section 4.5(a) shall usenot be obtained, the Company and Parent shall determine reasonably and jointly whether to take any further actions with respect to such Company Material Contracts; provided that without its consent (such consent to be given or withheld in its sole discretion), the Company shall not be required to pay any amount or change Contract terms or its business practices in order to obtain any such Consent (except to the extent that such payment or change is contingent on consummation of the Transactions). Except as set forth in Section 5.1, in no event shall the receipt of third-party Consents, if any, be a condition to the consummation of the Merger.
(b) Subject to Section 4.5(c) and the other terms and conditions of this Agreement, the Company and Parent agree, and shall Parent and the Company each agree to cause each of its Subsidiaries to use their respective subsidiaries reasonable best efforts to use, all reasonable efforts to: (i) take, or cause to be taken, all appropriate action, actions and to do, or cause to be done, all things necessary, proper, proper or advisable under applicable Laws or otherwise Law to consummate and make effective the transactions contemplated by this Agreement; Transactions and to use their respective reasonable best efforts to cause the conditions to each Party’s obligation to consummate the Transactions as set forth in Section 5.1 to be satisfied as promptly as practicable (but in no event later than the Outside Date), including taking all actions necessary (i) to obtain all Governmental Authorizations required for the consummation of the Merger, (ii) obtain from to effect all such necessary registrations and filings with the Governmental Authorities in order to consummate and make effective the Merger and the other Transactions, (iii) to comply with all requirements under applicable Law that may be imposed on it with respect to this Agreement, the Merger and the other Transactions and (iv) to avoid a Proceeding by any Governmental Entities Authority with respect to this Agreement, the Merger or the other Transactions or to defend or contest any consentsProceedings, licenseswhether judicial or administrative, permitsbrought under, waivers, approvals, authorizations, pursuant to or orders required relating to be obtained any regulatory Law challenging this Agreement or made by OTE or TetriDyn or any subsidiary the consummation of the Transactions. The Parties shall cooperate fully with each other to the extent necessary in connection with the authorizationforegoing.
(c) In connection with the efforts referenced in Section 4.5(b) and without limiting the generality of the undertaking pursuant thereto, execution, Parent and delivery the Company shall promptly make all filings that may be required for the satisfaction of this Agreement and the condition set forth in Section 5.1(c)(i) by each of them in connection with the consummation of the transactions Transactions, which, in any event, shall be made within 10 Business Days following the Agreement Date with respect to the initial filings required under the HSR Act. In addition, Parent and the Company agree, and shall each cause each of its Subsidiaries, to cooperate and to use their reasonable best efforts and take all actions necessary to obtain any Governmental Authorizations required for the consummation of the Merger as contemplated herebyby Section 4.5(b) above as promptly as possible, including the Merger; (iii) to make all other necessary filings, notifications or registrations within 15 Business Days of the Agreement Date to obtain all Governmental Authorizations set forth on Section 5.1(c) of the Company Disclosure Letter, to respond as promptly as practicable to any requests for information from any Governmental Authority and thereafter make otherwise comply with any inquiry or request from any Governmental Authority as promptly as practicable (and in each case any such information shall be in substantial compliance with the requirements of the HSR Act or other required submissions, respecting this Agreement and the Merger required under: (1) the Securities Act and the Exchange Actapplicable Antitrust Laws), and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including any legislative, administrative, administrative or judicial action, and to have vacated, lifted, reversed, reversed or overturned any decree, judgment, injunction, or other order Order (whether temporary, preliminary, preliminary or permanent) (an “Antitrust Order”) of any Governmental Entity that is in effect and that restricts, prevents, prevents or prohibits the consummation of the Merger or any other transaction contemplated by this Agreement under any Antitrust Law. Each Party shall furnish to the other such necessary information and assistance as the other Party may reasonably request in connection with the preparation of any necessary filings or submissions by it to any Governmental Authority. Neither Party shall give Consent to any voluntary extension of any statutory deadline or withdraw its notification and report form pursuant to the HSR Act or any other filing made pursuant to any Antitrust Law or other regulatory Law unless the other Party has given its prior written Consent to such extension or delay (which shall not be unreasonably withheld, conditioned or delayed).
(d) Parent and the Company will consult and cooperate with one another, and consider in good faith the views of one another, in connection with, and provide to the other in advance (to the extent legally permissible), any analyses, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any Party in connection with Proceedings under or relating to any Antitrust Laws. Without limiting the generality of the foregoing, in connection with this Agreement and the Transactions, the Parties agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to any Antitrust Laws, (ii) give each other an opportunity to participate in each of such meetings, (iii) give each other reasonable advance notice of all substantive oral communications with any Governmental Authority relating to any Antitrust Laws, (iv) if any Governmental Authority initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other Party of the substance of such communication, (v) provide each other with a reasonable advance opportunity to review and comment upon all substantive written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) with a Governmental Authority regarding any Antitrust Laws and (vi) provide each other with copies of all substantive written communications from any Governmental Authority relating to any Antitrust Laws. Any disclosures or provision of copies by one Party to the other may be made on an outside counsel basis, if appropriate.
(e) Each of Parent and the Company shall notify and keep the other advised as to (i) any material communication from any Governmental Authority regarding any of the Transactions and (ii) any litigation or administrative Proceeding pending and known to such Party, or to its knowledge threatened, that challenges, or would challenge, the Transactions. The Company and Parent shall not take any action inconsistent with their obligations under this Agreement or, without prejudice to the Company’s or Parent’s rights under this Agreement, that would materially hinder or delay the consummation of the Transactions.
(f) If any objections are asserted with respect to the Transactions under any Antitrust Law or if any suit is instituted or threatened by any Governmental Authority or any private party challenging any of the Transactions as violating any Antitrust Law or if a filing pursuant to Section 4.5(b) is reasonably likely to be rejected or conditioned by a Governmental Authority, then each of the Parties shall use reasonable best efforts to resolve such objections or challenges as such Governmental Authority or other Person may have to such transactions so as to permit consummation of the Transactions as soon as practicable and in any event prior to the Outside Date. Without limiting the generality of the foregoing, Parent shall, and shall cause each of its Subsidiaries to, use its and their reasonable best efforts, and promptly take any and all steps necessary, to avoid or eliminate any concerns on the part of, or to satisfy any conditions imposed by, any Governmental Authority under any Antitrust Law or any other Person so as to enable the Parties to consummate the Transactions as promptly as practicable, and in any event prior to the Outside Date; provided that, in no event will Parent or its Subsidiaries be obligated to (i) propose, negotiate, offer or commit to or effect, by consent decree, hold separate order or otherwise, the sale, divestiture, license or disposition of any assets or businesses of Parent or its Subsidiaries or Affiliates, now owned or hereafter sought to be acquired, (ii) terminate or amend any existing relationships or contractual rights or obligations or (iii) offer or commit to take any action that would limit or modify Parent’s rights of ownership in, or ability to conduct the business of, any of its operations, divisions, businesses, product lines, customers or assets, including, after the Closing, the business of the Company, if any such foregoing action, in each of (i)-(iii), (A) would reasonably be expected to, individually or in the aggregate, (1) materially reduce the reasonably anticipated benefits to Parent of the transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable to consummate the transactions contemplated by this Agreement; (2) otherwise required under adversely impact Parent or any contractsof Parent’s Subsidiaries other than, licensesafter the Closing, leases, or other agreements in connection with the consummation of Company and the transactions contemplated hereby; Company’s Subsidiaries or (3) required to prevent a material adverse effect affecting either of their respective business and operations from occurring prior to impact the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it Company or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used Company’s Subsidiaries in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter a manner that is material to the business Company and operations the Subsidiaries, taken as a whole or (B) is not contingent on the consummation of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life Transactions. In furtherance of the matter or foregoing, each Party shall keep the other Party informed of all material matters, discussions and activities relating to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the mattermatters contemplated by this Section 4.5(f).
(g) Parent and its Subsidiaries shall not make an initial filing under the HSR Act with respect to any transaction other than the Transactions prior to the initial filing with respect to the Transactions to be made under the HSR Act pursuant to Section 4.5(c).
(h) No action by the Company taken in compliance with Section 4.4 will be considered a violation of this Section 4.5.
Appears in 2 contracts
Samples: Merger Agreement (Electronic Arts Inc.), Merger Agreement (Glu Mobile Inc)
Appropriate Action; Consents; Filings. (a) OTE The Company and TetriDyn Parent shall use, and shall cause each of use their respective subsidiaries to use, all commercially reasonable efforts to: to (i) take, or cause to be taken, all appropriate action, and do, or cause to be done, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise to consummate and make effective the Merger and the other transactions contemplated by this Agreementhereby as promptly as practicable; (ii) obtain in a timely manner from any Governmental Entities Authorities any consents, licenses, permits, waivers, approvals, authorizations, authorizations or orders required to be obtained or made by OTE Parent or TetriDyn the Company or any subsidiary of their respective subsidiaries in connection with the authorization, execution, execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated hereby, including the Merger; and (iii) as promptly as practicable make all necessary filings, and thereafter make any other required submissions, respecting with respect to this Agreement and Agreement, the Merger or the other transactions contemplated hereby that are required under: under (1A) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; , (B) the HSR Act and any related governmental request(s) thereunder, and (2C) any other applicable Law; provided that, OTE that Parent and TetriDyn the Company shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party non-filing party and its advisers advisors prior to such filings filing and, if requested, shall to accept all reasonable additions, deletions, deletions or changes suggested in connection therewith. OTE Each of the Company and TetriDyn Parent shall furnish to each other all information required from it for any application or other filing to be made pursuant to the rules and regulations of any applicable Law (including all information required to be included in the Company Proxy Statement) in connection with the transactions contemplated by this Agreement.
(b) OTE and TetriDyn agree Without limiting the generality of its undertakings pursuant to cooperate respectingSection 6.03(a) hereof, to cause each of their respective subsidiaries to cooperate respecting, and to party hereto shall (i) use all its commercially reasonable efforts vigorously to contest and resist prevent the entry, in a judicial or administrative proceeding brought under any action, including legislative, administrative, antitrust Law by any Governmental Authority with jurisdiction over enforcement of any applicable antitrust Laws or judicial action, and to have vacated, lifted, reversed, any other party of any permanent or overturned any decree, judgment, injunction, preliminary injunction or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the would make consummation of the Merger or any other transactions transaction contemplated by hereby in accordance with the terms of this AgreementAgreement unlawful or would prevent or delay it and (ii) take promptly, including by vigorously pursuing in the event that such an injunction or order has been issued in such a proceeding, all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree steps necessary to take all actions, including the disposition an appeal of assets such injunction or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfiedorder; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse EffectParent and Merger Subsidiary, and TetriDyn together, shall not be required to undertake more than one such appeal.
(c) Notwithstanding anything to the contrary in this Section 6.03 or elsewhere in this Agreement, the parties agree that, in response to any action taken or threatened to be taken by any court or Governmental Authority, Parent shall not be required to (i) take any action or agree to the imposition of any order that would compel Parent or could reasonably be expected the Company (or any of their respective subsidiaries) to have a TetriDyn Material Adverse Effectsell, license or otherwise dispose of, hold separate or otherwise divest itself of any portion of its respective business, operations or assets in order to consummate the Merger or any other transaction contemplated hereby or (ii) impose any limitation(s) on Parent's ability to own or operate the business and operations of the Company and its Subsidiaries.
(id) OTE Each of Parent and TetriDyn the Company shall give (or shall cause its respective subsidiaries to give) any notices to applicable third parties, and use use, and cause their its respective subsidiaries to use all use, their commercially reasonable efforts to obtain any third-third party consents: consents or waivers, (1A) necessary, proper, or advisable to consummate the transactions contemplated by this Agreement; (2) otherwise required under any contracts, licenses, leases, or other agreements in connection with the consummation transactions contemplated in this Agreement, (B) disclosed or required to be disclosed in Schedule 3.05(a) of the transactions contemplated hereby; Company Disclosure Schedule or Schedule 4.04(a) of the Parent Disclosure Schedule or (3C) required to prevent a material adverse effect affecting either of their respective business and operations Company Material Adverse Effect from occurring prior to or after the Effective Time or a TetriDyn Parent Material Adverse Effect from occurring after the Effective Time; provided, however, that, without the written consent of Parent, the Company and its Subsidiaries shall not incur fees and expenses in excess of $10,000.00 in the aggregate in order to obtain, and/or in seeking to obtain, any such third party consents or waivers.
(e) From the date of this Agreement until the Effective Time or the earlier termination of this Agreement pursuant to Article VIII hereof, each party shall promptly notify the other party in writing of any pending or threatened action, proceeding or investigation by any Governmental Authority or any other person known to it (i) challenging or seeking material damages in connection with the Merger or any other transaction contemplated hereby; or (ii) OTE and TetriDyn shall use and cause their respective seeking to delay, restrain or prohibit the consummation of the Merger or any other transaction contemplated hereby or otherwise limit the right of Parent or Parent's subsidiaries to use own or operate all reasonable efforts or any portion of the businesses or assets of the Company or its Subsidiaries, which in either case would have, individually or in the aggregate, a Company Material Adverse Effect prior to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at a Parent Material Adverse Effect after the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matter.
Appears in 2 contracts
Samples: Merger Agreement (Computer Access Technology Corp), Merger Agreement (Lecroy Corp)
Appropriate Action; Consents; Filings. (a) OTE Upon the terms and TetriDyn subject to the conditions set forth in this Agreement, each of the Company and Parent shall use, and shall cause each of their respective subsidiaries the Company Subsidiaries and the Parent Subsidiaries, respectively, to use, all use its reasonable best efforts to: (i) to take, or cause to be taken, all appropriate actionactions, and to do, or cause to be done, and to assist and cooperate with the other party in doing, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise pursuant to any contract or agreement to consummate and make effective effective, as promptly as practicable, the transactions contemplated by this Agreement; (ii) obtain from any Governmental Entities any consentsOffer, licenses, permits, waivers, approvals, authorizations, or orders required to be obtained or made by OTE or TetriDyn or any subsidiary in connection with the authorization, execution, and delivery of this Agreement Merger and the consummation of the transactions contemplated hereby, including the Merger; (iii) make all necessary filings, and thereafter make any other required submissions, respecting this Agreement and the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing (i) the taking of all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree actions necessary to take all actions, including cause the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition conditions to Closing not set forth in Article VIII and the Offer Conditions to be satisfied; provided, however(ii) the obtaining of all necessary actions or nonactions, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effectwaivers, consents and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable to consummate the transactions contemplated by this Agreement; (2) otherwise required under any contracts, licenses, leases, approvals from Governmental Authorities or other agreements Persons necessary in connection with the consummation of the Offer, the Merger and the other transactions contemplated hereby; or by this Agreement and the making of all necessary registrations and filings (3including filings with Governmental Authorities, if any) required to prevent a material adverse effect affecting either and the taking of their respective business and operations from occurring prior to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts steps as may be necessary to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness an approval or obligation that will not be paid, dischargedwaiver from, or otherwise satisfied at to avoid an action or proceeding by, any Governmental Authority or other Persons necessary in connection with the Effective Timeconsummation of the Offer, excluding the obligations to SICOG Merger and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; by this Agreement, (iii) the institution defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the threat consummation of the Offer, the Merger or the other transactions contemplated by this Agreement, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed, the avoidance of each and every impediment under any antitrust, merger control, competition or trade regulation Law that may be asserted by any Governmental Authority with respect to the Offer or the Merger so as to enable the Closing to occur as soon as reasonably possible, and (iv) the execution and delivery of any additional instruments necessary to consummate the Offer, the Merger and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement.
(b) In connection with and without limiting the foregoing, each of Parent and the Company shall give (or shall cause the Parent Subsidiaries or the Company Subsidiaries, respectively, to give) any notices to Third Parties, and each of Parent and the Company shall use, and cause each of their respective Affiliates to use, its reasonable best efforts to obtain any Third Party consents not covered by Section 7.6(a) that are necessary, proper or advisable to consummate the Offer and the Merger. Each of the parties hereto will furnish to the other such necessary information and reasonable assistance as the other may 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 promptly informing the other party of such inquiry, consulting in advance before making any presentations or submissions to a Governmental Authority, and supplying each other with copies of all material litigation involving it correspondence, filings or communications between either party and any Governmental Authority with respect to this Agreement. To the extent reasonably practicable, the parties or their Representatives shall have the right to review in advance and each of the parties will consult the others on, all the information relating to the other and each of their Affiliates that appears in any filing made with, or written materials submitted to, any Governmental Authority in connection with the Offer, the Merger and the other transactions contemplated by this Agreement, except that confidential competitively sensitive business information may be redacted from such exchanges. To the extent reasonably practicable, neither the Company nor Parent shall, nor shall they permit their respective Representatives to, participate independently in any meeting or engage in any substantive conversation with any Governmental Authority in respect of any filing, investigation or other inquiry without giving the other party prior notice of such meeting or conversation and, to the extent permitted by applicable Law, without giving the other party the opportunity to attend or participate (whether by telephone or in person) in any such meeting with such Governmental Authority.
(c) Notwithstanding anything to the contrary in this Agreement, in connection with obtaining any approval or consent, other than the Lender Consents, from any Person (other than any Governmental Authority) with respect to the Offer or the Merger, none of the Company, Parent, any of the Company Subsidiaries, any of the Parent Subsidiaries or any of its subsidiaries; the their respective Representatives, shall be obligated to pay or (iv) commit to pay to such Person whose approval or consent is being solicited any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding cash or other matter consideration, make any accommodation or commitment or incur any liability or other obligation to such Person. The parties shall cooperate with respect to accommodations that is material may be requested or appropriate to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matterobtain such consents.
Appears in 2 contracts
Samples: Merger Agreement (American Realty Capital Properties, Inc.), Merger Agreement (Cole Credit Property Trust Inc)
Appropriate Action; Consents; Filings. (a) OTE Promptly after the execution of this Agreement, each of Parent and TetriDyn the Company shall useapply for or otherwise seek, and shall cause use its reasonable best efforts to obtain, all consents and approvals required to be obtained by it for the consummation of the Merger. Without limiting the generality or effect of the foregoing, each of their respective subsidiaries to useParent and the Company shall, all reasonable efforts to: (i) takeas soon as practicable, and in any event no later than ten (10) Business Days after the date of this Agreement, make any initial filings required under the HSR Act and (ii) any other additional filings required by any other applicable Antitrust Laws. The parties hereto shall consult and cooperate with one another, afford one another (or one another's counsel) an opportunity to review in advance any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals to be made or submitted by or on behalf of any party hereto in connection with proceedings under or relating to any Antitrust Law, and consider in good faith the views of one another, in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party hereto in connection with proceedings under or relating to the HSR Act or any foreign or other Antitrust Law; provided, however, that, with respect to any such analyses, appearances, presentations, memoranda, briefs, arguments, opinions or proposals, each of Parent and the Company need not supply the other (or its counsel) with copies (or in case of oral presentations, a summary) to the extent that any Law applicable to such party requires such party or the Company Subsidiaries to restrict or prohibit access to any such properties or information. Unless otherwise agreed, to the extent reasonably practical and permitted by applicable Law, no party shall have any material discussions or communications with any Governmental Entity with respect to the Transactions contemplated by this Agreement without, where practical, consulting with a Representative of the other party.
(b) Each party will notify the other promptly upon the receipt of (i) any comments from any officials of any Governmental Entity in connection with any filings made pursuant hereto and (ii) any request by any officials of any Governmental Entity for amendments or supplements to any filings made pursuant to, or cause information provided to comply in all material respects with, any Laws. Whenever any event occurs that is required to be takenset forth in an amendment or supplement to any filing made pursuant to Section 6.8(a), all appropriate actioneach party will promptly inform the other of such occurrence and cooperate in filing with the applicable Governmental Entity such amendment or supplement.
(c) Each of Parent and the Company shall use its reasonable best efforts to resolve such objections, and doif any, or cause as may be asserted by any Governmental Entity with respect to be done, all things necessary, proper, or advisable under applicable Laws or otherwise to consummate and make effective the transactions contemplated by this Agreement under the HSR Act, the Xxxxxxx Act, as amended, the Xxxxxxx Act, as amended, the Federal Trade Commission Act, as amended, Council Regulation 139/2004 of the European Community and any other federal, state or foreign or supranational statutes, rules, regulations, orders or decrees that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade (collectively, "Antitrust Laws"). Each of Parent and the Company shall use its reasonable best efforts to take such action as may be required to cause the expiration of the notice periods or the receipt of approval decisions under the HSR Act or other Antitrust Laws with respect to such transactions as promptly as possible after the execution of this Agreement; (ii) . Without limiting the foregoing, Parent and the Company shall take any and all of the following actions to the extent necessary to obtain from the approval of any Governmental Entities Entity with jurisdiction over the enforcement of any consents, licenses, permits, waivers, approvals, authorizations, or orders required to be obtained or made by OTE or TetriDyn or any subsidiary in connection with the authorization, execution, and delivery of this Agreement and the consummation of applicable Laws regarding the transactions contemplated hereby: (i) entering into negotiations, including the Merger; (ii) providing information required by Law, and (iii) make all necessary filings, and thereafter make substantially complying with any other required submissions, respecting this Agreement and the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all "second request" for information required for any application or other filing to be made pursuant to the rules and regulations of Antitrust Laws.
(d) Notwithstanding anything in this Agreement to the contrary, if any applicable Law in connection with the transactions administrative or judicial action or proceeding is instituted (or threatened to be instituted) challenging any transaction contemplated by this Agreement.
Agreement as violative of any Antitrust Law, it is expressly understood and agreed that (bi) OTE Parent and TetriDyn agree the Company shall not have any obligation to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to litigate or contest and resist any action, including legislative, administrative, administrative or judicial action, and to have vacated, lifted, reversed, action or overturned proceeding or any decree, judgment, injunction, injunction or other order (order, whether temporary, preliminary, preliminary or permanent, and (ii) Parent shall be under no obligation to make proposals, execute or carry out agreements or submit to orders providing for a Divestiture.
(an “Order”e) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits Notwithstanding the consummation of the Merger foregoing or any other transactions contemplated by provision of this Agreement, including by vigorously pursuing nothing in this Section 6.8 shall limit a party's right to terminate the Agreement pursuant to Section 8.1(b) so long as such party has until such date complied in all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effectmaterial respects with its obligations under this Section 6.8.
(i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable to consummate the transactions contemplated by this Agreement; (2) otherwise required under any contracts, licenses, leases, or other agreements in connection with the consummation of the transactions contemplated hereby; or (3) required to prevent a material adverse effect affecting either of their respective business and operations from occurring prior to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matter.
Appears in 2 contracts
Samples: Merger Agreement (Primedex Health Systems Inc), Merger Agreement (Radiologix Inc)
Appropriate Action; Consents; Filings. (a) OTE Upon the terms and TetriDyn shall usesubject to the conditions set forth in this Agreement, and shall cause each of their respective subsidiaries the parties agrees to use, all use its reasonable best efforts to: to (i) take, or cause to be taken, all appropriate action, actions and to do, or cause to be done, all things necessary, proper, proper or advisable under this Agreement and applicable Laws or otherwise Law to cause the conditions to Closing to be satisfied as promptly as reasonably practicable (and in any event no later than the Outside Date (as the same may be extended)) and to consummate and make effective the transactions contemplated by Merger and the other Transactions as soon as practicable after the date of this Agreement, including preparing and filing, in consultation with any other party hereto and as promptly as reasonably practicable and advisable after the date of this Agreement, all documentation to effect all necessary or advisable applications, notices, petitions, filings, registrations, notifications, statements, submissions of information and other documents (including any required or recommended filings under applicable Regulatory Laws); (ii) to obtain as promptly as reasonably practicable (and in any event no later than the Outside Date (as the same may be extended)) all waiting period expirations or terminations, approvals, consents, clearances, registrations, permits and authorizations from any Governmental Entities any Entity or third party that are or may become necessary, proper or advisable to consummate the Transactions; (iii) obtain all necessary consents, licensesapprovals or waiver from third parties and (iv) to defend lawsuits or other legal proceedings, permitswhether judicial or administrative, waivers, approvals, authorizations, or orders required to be obtained or made by OTE or TetriDyn or any subsidiary in connection with the authorization, execution, and delivery of challenging this Agreement and or the consummation of the transactions contemplated herebyMerger and the other Transactions. Notwithstanding the foregoing, or anything else to the contrary herein, if the lessor or licensor under any Company Lease Agreement conditions its grant of a consent (including by threatening to exercise a “recapture” or other termination right) upon, or otherwise requires in response to a notice or consent request regarding this Agreement, requested by Parent, the Merger; payment of a consent fee, “profit sharing” payment or other consideration (iiiincluding increased rent payments), or the provision of additional security (including a guaranty), the Company shall be solely responsible for making all such payments or providing all such additional security, the terms of which shall be subject to Parent’s approval.
(b) make Each party hereto agrees to use its reasonable best efforts to file, as soon as practicable and advisable after the date of this Agreement, all necessary filingsapplications, notices, petitions and filings required or recommended to be filed by such party with any Governmental Entity with respect to the Merger and the other Transactions, and to submit as promptly as reasonably practicable any additional information requested by any such Governmental Entity. In furtherance and not in limitation of the foregoing, each party hereto shall, in consultation and cooperation with the other: (i) prepare and file the pre-merger notification under the HSR Act as promptly as practicable but in no case later than fifteen (15) Business Days after execution of this Agreement unless otherwise agreed by the parties, and (ii) prepare and file all other notifications required under any applicable Law with respect to any other Regulatory Laws as promptly as reasonably practicable after the execution of this Agreement (in each case, unless another date is mutually agreed between the parties hereto), or where the ability to control timing of the application, notice, petition or filing is not within the control of the submitting party, commence pre-submission consultation procedures for, any applications notices, petitions or filings with such Governmental Entities (and thereafter make any other required submissionssubmissions and respond as promptly as reasonably practicable to any requests for additional information or documentary material) (the filings describe in clauses (i) and (ii), respecting this Agreement the “Regulatory Filings”). Parent and the Merger required under: Company shall use their respective reasonable best efforts to respond as promptly as reasonably practicable to any inquiries or requests for additional information or documentary material received from any state attorney general, antitrust authority or other Governmental Entity, including the Federal Trade Commission (1the “FTC”), Antitrust Division of the U.S. Department of Justice (the “DOJ”) the Securities Act and the Exchange People’s Republic of China’s State Administration for Market Regulation (“SAMR”) in connection with the matters in Section 5.6(a) and this Section 5.6(b). Each party will bear its own costs of preparing its own pre-merger notifications and similar filings and notices in any applicable jurisdictions and related expenses incurred to obtain any required approval from a Governmental Entity, including the HSR Act.
(c) In connection with, and without limiting, the rules and regulations thereunderefforts or the obligations of the parties hereto under Section 5.6(a), and Section 5.6(b), each of Parent and the Company shall, to the extent permitted by applicable Law and not prohibited by the applicable Governmental Entity and subject to all applicable privileges (including the attorney client privilege), (i) cooperate and coordinate with the other in the making of Regulatory Filings (including, to the extent permitted by applicable Law and subject to the provisions of Section 5.4(a), providing copies, or portions thereof, of all such documents to the non-filing parties prior to the filing and considering all reasonable additions, deletions or changes suggested in connection therewith) and in connection with resolving any investigation, request or other inquiry from any Governmental Entity under any applicable federal Law with respect to any such filing, (ii) supply the other with any information and reasonable assistance that may be required or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other reasonably requested in connection with the making of all such filingsRegulatory Filings, and (iii) supply, within the time allowed, any additional or supplemental information that may be required or reasonably requested by any Governmental Entity, including providing the FTC, the DOJ and SAMR. Notwithstanding the foregoing or anything else herein to the contrary, nothing in this Agreement shall require Parent or any of its Subsidiaries or its or their Representatives to provide to the Company or any of its Subsidiaries or its or their Representatives any non-public data, documents, or information, including with respect to the business, operations, assets, products, product roadmaps, plans, or other business data, documents, or information. Parent may as it deems advisable and necessary, reasonably designate any competitively sensitive material to be provided to the Company under this Section 5.6(c) as “Outside Counsel Only Material” and such materials and information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside legal counsel to employees (including in-house legal counsel), officers, directors or other independent contractors (including accountants and expert witnesses) of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel.
(d) Each Parent and Merger Sub (and their respective affiliates, if applicable), on the one hand, and the Company (and the Company’s Subsidiaries, if applicable), on the other hand, shall, to the extent practicable and unless prohibited by applicable Law or by the applicable Governmental Entity and subject to all applicable privileges (including the attorney client privilege), promptly inform the other of any material communication from any Governmental Entity regarding any of the Transactions in connection with any Regulatory Filings or investigations with, by or before any Governmental Entity relating to this Agreement or the Transactions, including any Proceedings initiated by a private party. If any party hereto or Subsidiary or other affiliate thereof shall receive a request for additional information or documentary material from any Governmental Entity with respect to a Regulatory Filing, then such party hereto shall use its reasonable best efforts to make, or cause to be made, as soon as reasonably practicable, an appropriate response in compliance with such request. In connection with and without limiting the foregoing provisions of this Section 5.6(d), to the extent reasonably practicable, unless prohibited by applicable Law or by the applicable Governmental Entity, the parties hereto will (i) give each other reasonable advance notice of all meetings or material communications with any Governmental Entity relating to the Merger or any other Transactions, (ii) give each other an opportunity to participate in each of such meetings or material communications, (iii) keep the other parties reasonably apprised with respect to any communications with any Governmental Entity relating to the Merger or any other Transactions, (iv) cooperate in the filing of any analyses, presentations, memoranda, briefs, arguments, opinions or other written communications explaining or defending the Merger or any other Transactions, articulating any regulatory or competitive argument or responding to requests or objections made by any Governmental Entity, (v) provide each other with a reasonable advance opportunity to review and comment upon, and consider in good faith the views of the other with respect to, all material written communication (including applications, analyses, presentations, memoranda, briefs, arguments and opinions) with a Governmental Entity regarding the Merger or any other Transactions and (vi) provide each other (or counsel of each party hereto, as appropriate) with copies of all written material communications to or from any Governmental Entity relating to the Merger or any other Transactions. Any such documents disclosures, rights to participate or provisions of information by one party to the other Party may be made on a counsel-only basis to the extent required under applicable Law and its advisers prior the provisions of Section 5.4(a) or as necessary to protection competitively sensitive information. Anything to the contrary contained in this Section 5.6 notwithstanding, materials provided pursuant to this Section 5.6 may be redacted to remove such filings andinformation as a party is not obligated to provide under Section 5.6(c) and references concerning the valuation of the Company.
(e) Notwithstanding the foregoing or anything else herein to the contrary, if requestedthe parties agree that Parent shall have full control over devising the strategy and tactics for obtaining clearances, shall accept all reasonable additionsapprovals and waiting-period expirations under Regulatory Laws, deletionsincluding any filings, notifications, submissions and communications with or changes suggested to any Governmental Entity in connection therewith. OTE ; provided that Parent shall reasonably consider any good faith proposals timely made by the Company or its legal counsel.
(f) In furtherance to and TetriDyn shall furnish not in limitation of the foregoing, Parent and its affiliates agree to use reasonable best efforts to obtain all information approvals or clearances of the Merger or the Transactions required for any application or other filing to be made pursuant to applicable Regulatory Laws or the rules and regulations expiration or termination of any applicable Law waiting periods (and any extension thereof) in connection with therewith in order for the transactions contemplated by this Agreement.
parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Outside Date (b) OTE and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respectingas the same may be extended), and to use all reasonable efforts vigorously avoid any impediment to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger of the Transactions, including Parent or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree its affiliates committing to take all actions, including the disposition of assets undertake behavior or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition conduct remedies with respect to the granting of any approvals Company or its Subsidiaries, in each case, as may be required in order to permit avoid the entry of, or to effect the lifting or dissolution of, any injunction, temporary restraining order, or other Order in any suit or Proceeding, which would otherwise have the effect of preventing the Closing, in order for the parties hereto to consummate the Transactions as promptly as reasonably practicable and in any event prior to the Outside Date (as the same may be extended). Notwithstanding the foregoing or anything else herein to the contrary, it is expressly understood and agreed that none of Parent or any of its affiliates shall be required to propose, negotiate, commit to or effect, execute or carry out agreements, enter into consent decrees or submit to orders providing for, whether by consent decree, national security agreement, letter of assurance, hold separate orders, or otherwise (A) to sell, divest, lease, license, transfer, dispose of, hold separate (through establishment of a trust or otherwise) or otherwise encumber, limit or impair or take any other action with respect to Parent’s or any of its affiliates’ or the Company’s or and of its Subsidiary’s ability to own or operate any assets or categories of assets, properties, businesses or product lines of Parent or any of its affiliates or the Company or any of its Subsidiaries, even if required in order to avoid the entry of, or to effect the lifting or dissolution of, any injunction, temporary restraining order, or other Order in any suit or Proceeding, (B) undertake any behavior or conduct remedy that would be material to Parent and its Subsidiaries (assuming consummation of the Transactions), taken as a whole, or (C) to take any action or make any omission that would violate applicable Law.
(g) Neither Parent nor Merger Sub shall directly or indirectly acquire or agree to acquire (by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in, or by any other manner), any Person or portion thereof, or otherwise acquire or agree to acquire any assets (collectively, “M&A Activity”), if the entering into a definitive agreement relating to, or the consummation of, such acquisition, merger or consolidation would reasonably be expected to (A) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any permits, orders or other approvals of any Governmental Entity necessary to consummate the Transactions or the expiration or termination of any applicable waiting period, (B) materially increase the risk of any Governmental Entity seeking an Order prohibiting the consummation of the Merger Transactions, (C) materially increase the risk of not being able to remove any such Order on appeal or as may be required to avoid, lift, vacateotherwise, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(iD) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable to consummate the transactions contemplated by this Agreement; (2) otherwise required under any contracts, licenses, leases, or other agreements in connection with prevent the consummation of the transactions contemplated hereby; Transactions by the Outside Date. Notwithstanding the foregoing or anything else herein to the contrary, nothing in this Agreement shall restrict Parent or any of its affiliates from engaging in M&A Activity involving any target company, business or product line with annual revenue in the People’s Republic of China equal to or less than thirty million dollars (3$30,000,000). Notwithstanding anything else herein to the contrary, this Section 5.6(g) required contains the only restrictions and limitations, and nothing else in this Agreement restricts or limits, the ability of Parent or any of its affiliates from engaging in any M&A Activity.
(h) Nothing contained in this Agreement is intended to prevent a material adverse effect affecting either of their respective business and give Parent or Merger Sub, directly or indirectly, the right to control or direct the Company’s or its Subsidiaries’ operations from occurring prior to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries . Prior to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG Company shall exercise, consistent with the terms and EIDC as set forth in subsection 5.12(c)conditions of this Agreement, complete control and supervision over its and its Subsidiaries’ respective operations.
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matter.
Appears in 2 contracts
Samples: Merger Agreement (Maxlinear Inc), Merger Agreement (Maxlinear Inc)
Appropriate Action; Consents; Filings. (a) OTE Upon the terms and TetriDyn subject to the conditions set forth in this Merger Agreement, the Company, Merger Sub and Acquiror shall use, and shall cause each of use their respective subsidiaries reasonable best efforts to use, all reasonable efforts to: (i) take, or cause to be taken, all appropriate action, and do, or cause to be done, and to assist and cooperate with the other parties in doing all things necessary, proper, proper or advisable under applicable Laws Law or otherwise to consummate and make effective the transactions contemplated by this Merger Agreement as promptly as practicable, including (i) executing and delivering any additional instruments necessary, proper or advisable to consummate the transactions contemplated by, and to carry out fully the purposes of, this Merger Agreement; , (ii) obtain obtaining from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, or orders Licenses required to be obtained or made by OTE Acquiror, Merger Sub or TetriDyn the Company or any subsidiary of their subsidiaries in connection with the authorization, execution, execution and delivery of this Merger Agreement and the consummation of the transactions contemplated herebyherein, including including, without limitation, the Merger; , and (iii) make making all necessary filings, and thereafter make making any other required submissions, respecting with respect to this Merger Agreement and the Merger required under: under (1A) the Securities Act and Act, the Exchange Act, and the rules and regulations thereunder, Act and any other applicable federal or state securities Laws; , (B) the HSR Act and (2C) any other applicable Law; provided provided, that, OTE Acquiror, Merger Sub and TetriDyn the Company shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents Documents to the other Party non-filing party and its advisers advisors prior to such filings and, if requested, shall accept filing and discussing all reasonable additions, deletions, deletions or changes suggested in connection therewith. OTE The Company and TetriDyn Acquiror shall furnish to each other all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Merger Agreement.
(b) OTE and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE The Company, Merger Sub and TetriDyn Acquiror shall give (or shall cause their respective subsidiaries to give) any notices to third parties, and use use, and cause their respective subsidiaries to use all use, their reasonable best efforts to obtain any third-third party consents: , approvals or waivers (1A) necessary, proper, proper or advisable to consummate the transactions contemplated by in this Merger Agreement; , (2B) otherwise disclosed or required under any contractsto be disclosed in the Company Disclosure Schedule or the Acquiror Disclosure Schedule, licenses, leasesas the case may be, or other agreements in connection with the consummation of the transactions contemplated hereby; or (3C) required to prevent a material adverse effect affecting either of their respective business and operations from occurring prior to the Effective Time or a TetriDyn Company Material Adverse Effect from occurring prior to or after the Effective Time or an Acquiror Material Adverse Effect from occurring prior to or after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party party shall fail to obtain any third-third party consent consent, approval or waiver described in subsection (c)(iib)(i) above, such Party party shall use all its reasonable best efforts, and shall take any such actions reasonably requested by any the other Partyparties hereto, to limit the minimize any adverse effect upon OTE the Company and TetriDynAcquiror, their respective subsidiaries, and their respective subsidiaries and their respective businessesbusinesses resulting, resulting or that which could reasonably be expected to result after the Effective Time, from the failure to obtain such consent, approval or waiver, and shall promptly provide notice of such failure to the other party.
(c) From the date of this Merger Agreement until the Effective Time, the Company, Merger Sub and Acquiror shall promptly notify each other in writing of any pending or, to the knowledge of the Company, Merger Sub or Acquiror (or their respective Subsidiaries), threatened action, proceeding or investigation by any Governmental Entity or any other Person (i) challenging or seeking damages in connection with the Merger or the conversion of Company Common Stock into Acquiror Series A Preferred Stock pursuant to the Merger or (ii) seeking to restrain or prohibit the consummation of the Merger or otherwise limit the right of Acquiror or its subsidiaries to own or operate all or any portion of the businesses or Assets of the Company or any Company Subsidiary. The Company, Merger Sub and Acquiror shall cooperate with each other in defending any such action, proceeding or investigation, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed.
(d) OTE Notwithstanding the prohibitions contained in Section 5.02, Acquiror shall be permitted to amend its certificate of incorporation to effect a reverse stock split, reclassification or similar action if Acquiror and TetriDyn the Company reasonably believe that such action is necessary to maintain the listing of Acquiror Common Stock on the Nasdaq National Market; provided, that, any such action taken shall promptly notify not change the other of: (i) any material change in its current aggregate value of the Merger Consideration to be received by the Company Stockholders and the Company Preferred Stockholders as provided herein or future business, assets, liabilities, financial condition, or results otherwise alter the overall economics of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) herein. In such event, the institution Company and Acquiror agree to cooperate in good faith with each other and to modify this Merger Agreement and to execute and deliver such other documents or instruments as either party reasonably requests to the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might extent reasonably be expected necessary to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at effect the Effective Time. As used in actions contemplated by the preceding sentence, “material litigation” means .
(e) In the event that any case, arbitration, of the provisions herein or adversary proceeding or other matter that is material in the Restated Charter relating to the business and operations terms of the subject entity, if Acquiror Series A Preferred Stock are required to be amended in existence order to satisfy initial listing requirements for the Acquiror Series A Preferred Stock on the date hereofNasdaq National Market, the parties hereto agree to cooperate in good faith with each other and to modify this Merger Agreement and the Restated Charter and to execute and deliver such other documents or instruments as either party reasonably requests to the extent reasonably necessary to satisfy initial listing requirements for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over Acquiror Series A Preferred Stock on the life Nasdaq National Market; provided, that, any such actions taken shall not change the aggregate value of the matter Merger Consideration to be received by the Company Stockholders and the Company Preferred Stockholders as provided herein or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over otherwise alter the life overall economics of the mattertransactions contemplated herein.
Appears in 2 contracts
Samples: Merger Agreement (Rare Medium Group Inc), Merger Agreement (Motient Corp)
Appropriate Action; Consents; Filings. (a) OTE Subject to the terms and TetriDyn conditions herein, the parties shall use, and shall cause each of their respective subsidiaries to use, all reasonable efforts to: (i) takeuse reasonable best efforts, in consultation with each other, to obtain any required consents, approvals, waivers and authorizations of, actions or cause to be taken, all appropriate actionnonactions by, and domake all required filings and submissions with, any Governmental Entity or cause to be done, all things necessary, proper, or advisable under applicable Laws or otherwise to consummate and make effective any third party required in connection with the transactions contemplated by this Agreement; (ii) obtain from any Governmental Entities any use reasonable best efforts to cooperate with each other in (A) determining which filings are required to be made prior to the Closing with, and which consents, licenses, permits, waivers, approvals, authorizationsPermits, notices or orders authorizations are required to be obtained prior to Closing from, Governmental Entities or made by OTE or TetriDyn or any subsidiary third parties in connection with the authorization, execution, execution and delivery of this Agreement and the related agreements, and consummation of the transactions contemplated herebyhereby and thereby and (B) timely making all necessary filings and timely seeking all consents, including the Merger; approvals, Permits, notices or authorizations, (iii) make all necessary filingsuse reasonable best efforts to cause the conditions to the Merger set forth in Article VII to be satisfied, and thereafter make any (iv) use reasonable best efforts to take, or cause to be taken, all other required submissionsactions and do, respecting this Agreement and the Merger required under: (1) the Securities Act and the Exchange Actor cause to be done, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other in order to do, all other things necessary or appropriate to consummate the transactions contemplated hereby as soon as practicable.
(b) Montage and Marigold shall jointly coordinate (i) the scheduling of, and strategic planning for, any meeting with any Governmental Entity in connection with the making of all such filingsHSR Act, including providing copies of all such documents Communications Act and the FCC Rules or with any other third party relating to the other Party and its advisers obtaining of any consent, approval, waiver or authorization required from such Governmental Entity or third party prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law Closing in connection with the transactions contemplated by this Agreement.
, (bii) OTE and TetriDyn agree to cooperate respecting, to cause each the making of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any actionfilings, including legislativethe initial filings under the HSR Act and the FCC Applications, administrative(iii) the process for the receipt of any necessary approvals, consents, approval, waivers or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of authorizations required from any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other third party in connection with the transactions contemplated by this Agreement, including and (iv) the resolution of any investigation or other inquiry of any Governmental Entity. Without limiting the foregoing sentence, except as prohibited by vigorously pursuing applicable Law, each of Montage and Marigold shall, (A) to the extent reasonably practicable, consult with each other prior to taking any material substantive position with respect to the filings under the HSR Act, Communications Act and the FCC Rules in discussions with or filings to be submitted to any Governmental Entity or any other third party relating to the obtaining of any consent, approval, waiver or authorization required from such Governmental Entity or other third party in connection with the transactions contemplated by this Agreement, (B) to the extent reasonably practicable, permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, presentations, memoranda, briefs, arguments, opinions and proposals to be submitted to any Governmental Entity with respect to the HSR Act, Communications Act and the FCC Rules or any other third party relating to the obtaining of any consent, approval, waiver or authorization required from such Governmental Entity or any other third party in connection with the transactions contemplated by this Agreement, and (C) to the extent reasonably practicable, coordinate with the other in preparing and exchanging such information and promptly provide the other (and its counsel) with copies of all available avenues filings, presentations or submissions (and a summary of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree any material oral presentations) made by such party with any Governmental Entity or any other third party relating to take all actions, including the disposition of assets this Agreement or the withdrawal from doing business in particular jurisdictionstransactions contemplated hereby under the HSR Act, required by regulatory authorities as a condition Communications Act and the FCC Rules or relating to the granting obtaining of any approvals other third party consent, approval, waiver or authorization required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable to consummate connection with the transactions contemplated by this Agreement; (2provided that in respect of third parties other than Governmental Entities this Section 6.3(b) otherwise required under shall apply only to the extent that the relevant consent, approval, waiver or authorization is related to a Contract set forth on Section 7.2(d) of the Marigold Disclosure Letter or Section 7.3(d) of the Montage Disclosure Letter. Neither Montage nor Marigold nor any contractsof their respective Subsidiaries shall, licenses, leases, or other agreements in connection with the transactions contemplated hereby, and the FCC Applications shall not, seek a waiver or other formal or informal ruling from the FCC or the staff of the FCC with respect to the thirty-nine percent (39%) “national television ownership cap” as such term is currently defined by the FCC or attempt to rely on the application of any “UHF discount” as such term is currently defined by the FCC (or attempt to apply any “VHF” or other discount) in connection with calculating compliance with such thirty-nine percent (39%) national television ownership cap. Notwithstanding anything to the contrary set forth in this Section 6.3, each of Montage and Marigold may, as they deem advisable and necessary, designate any privileged or competitively sensitive materials provided to the other under this Section 6.3 as “outside counsel only.” Such materials and the information contained therein shall be given only to outside counsel of the party and will not be disclosed by such outside counsel to employees, officers, or directors of such party without the advance written consent of the party providing such materials.
(c) Unless prohibited by applicable Law or by the applicable Governmental Entity, each of Montage and Marigold shall (i) not without the other participate in or attend any meeting, or engage in any substantive conversation with any Governmental Entity or any other third party in respect of the Merger relating to the obtaining of any consent, approval, waiver or authorization required from such Governmental Entity or other third party in connection with the transactions contemplated by this Agreement, (ii) to the extent practicable, give the other reasonable prior notice of any such meeting or conversation and (iii) in the event one party is prohibited by applicable Law or by the applicable Governmental Entity or third party from participating or attending any such meeting or engaging in any such conversation, keep such party reasonably apprised with respect thereto; provided that in respect of third parties other than Governmental Entities this Section 6.3(c) shall apply only to the extent that the relevant consent, approval, waiver or authorization is related to a Contract set forth on Section 7.2(d) of the Marigold Disclosure Letter or Section 7.3(d) of the Montage Disclosure Letter.
(d) Without limiting the generality of the foregoing, each of Montage and Marigold shall be required to (i) take all actions necessary to effect the the Regulatory Divestitures as contemplated by Schedule 6.3, (ii) vigorously contest (including by means of litigation) (x) any actions, arbitrations, litigations, suits or other civil or criminal proceedings brought, or threatened to be brought, by any Governmental Authority or any other Person seeking to enjoin, restrain, prevent, prohibit or make illegal the consummation of any of the transactions contemplated hereby or seeking damages or to impose any terms or conditions in connection with the transactions contemplated hereby, and (y) any Order that enjoins, restrains, prevents, prohibits or makes illegal the consummation of any of the transactions contemplated hereby or imposes any damages, terms or conditions in connection with the transactions contemplated hereby and (iii) resolve any objections any Governmental Entity may assert under any applicable Law with respect to the Transactions and to obtain any clearance required under the HSR Act, Communications Act and the FCC Rules or any objection that any other third party relating to the obtaining of any consent, approval, waiver or authorization required from such third party in connection with the transactions contemplated by this Agreement other approval, consent or authorization necessary under applicable Law for the consummation of the transactions contemplated hereby; hereby (including agreeing to and making divestitures, entering into hold separate arrangements, terminating, assigning or modifying Contracts (3or portions thereof) required to prevent a material adverse effect affecting either or other business relationships, accepting restrictions on business operations and entering into of their respective business commitments and operations from occurring prior to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(cobligations).
(iiie) In Notwithstanding anything herein to the event contrary, nothing set forth in this Section 6.3 or Schedule 6.3 shall (i) require, or be construed to require, Montage or Marigold or any of their respective Subsidiaries to take, or agree to take, any Regulatory Action or make any Regulatory Divestiture unless the Regulatory Action or the Regulatory Divestiture shall be conditioned upon the consummation of the Merger and the transactions contemplated hereby, or (ii) require, or be construed to require, Montage or Marigold or any of their respective Subsidiaries to take, or agree to take, any Regulatory Action unless all Regulatory Actions would not result in a Regulatory Material Adverse Effect (as defined in Section 6.3(f)). Senior executives of Montage shall consult in good faith with senior executives of Marigold (with reasonable prior notice and giving due consideration to each other’s recommendations) with respect to any Regulatory Action that any Party is not a Regulatory Divestiture specifically listed in Schedule 6.3. Neither Montage nor Marigold shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable effortsbe permitted to, and each shall cause its Subsidiaries and its Sharing Companies not to, take any such actions action as part of Regulatory Actions or otherwise that would reasonably requested be expected to materially delay or impede receipt of the FCC Consent or the consummation of the Regulatory Actions or the Merger.
(f) For purposes of Section 6.3(e), (i) “Regulatory Action” means any obligation, condition or other requirement imposed by a Governmental Entity in connection with this Agreement or the transactions contemplated hereby and (ii) “Regulatory Material Adverse Effect” means any other Party, to limit the adverse effect upon OTE and TetriDyn, and Regulatory Action imposed on Montage or Marigold or any of their respective subsidiaries and their respective businessesSubsidiaries that, resulting individually or that could in the aggregate, would reasonably be expected to result after in a material adverse effect on the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, condition or results of operationsoperations of Montage and its Subsidiaries, taken as a whole, after giving effect to the Merger; (ii) any complaintsprovided, investigationshowever, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business results or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations effects of the subject entity, if Regulatory Divestitures specifically listed in existence on the date hereof, or Schedule 6.3 shall not be taken into account for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life purposes of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life definition of the mattera “Regulatory Material Adverse Effect”.
Appears in 2 contracts
Samples: Merger Agreement (Nexstar Broadcasting Group Inc), Merger Agreement (Media General Inc)
Appropriate Action; Consents; Filings. (a) OTE The Company and TetriDyn Parent shall use, and shall cause each of use their respective subsidiaries reasonable best efforts to use, all reasonable efforts to: (i) take, or cause to be taken, all appropriate action, and do, or cause to be done, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise to consummate and make effective the transactions contemplated by this Agreement; Agreement as promptly as practicable, (ii) obtain from any Governmental Entities Entity any consents, licenses, permits, waivers, approvals, authorizations, authorizations or orders required to be obtained or made by OTE the Company or TetriDyn Parent or any subsidiary of their respective Subsidiaries, or to avoid any action or proceeding by any Governmental Entity (including, without limitation, those in connection with the HSR Act), in connection with the authorization, execution, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, including including, without limitation, the Merger; , and (iii) make all necessary filings, and thereafter make any other required submissions, respecting with respect to this Agreement and the Merger required under: under (1A) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; , (B) the HSR Act, and (2C) any other applicable Law; provided thatprovided, OTE that the Company and TetriDyn Parent shall cooperate with each other in connection with the making of all such filings, including including, if requested, by providing copies of all such documents to the other Party non-filing party and its advisers advisors prior to such filings filing and, if requested, shall to accept all reasonable additions, deletions, deletions or changes suggested in connection therewith; provided, however, that nothing in this Section 5.6(a) shall require the expenditure of money by Parent or the Company to a third party in exchange for any such consent (other than nominal filing or processing fees). OTE The Company and TetriDyn Parent shall furnish to each other all information required for any application or other filing to be made pursuant to under the rules and regulations of any applicable Law (including all information required to be included in the Proxy Statement and the Registration Statement) in connection with the transactions contemplated by this Agreement.
(b) OTE The Company and TetriDyn agree to cooperate respecting, to Parent shall give (or shall cause each of their respective subsidiaries Subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanentgive) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use use, and cause their respective subsidiaries Subsidiaries to use all use, reasonable best efforts to obtain any third-third party consents: , (1i) necessary, proper, proper or advisable to consummate the transactions contemplated by in this Agreement; , (2ii) otherwise required under any contractsto be disclosed in the Company Disclosure Schedule or the Parent Disclosure Schedule, licenses, leasesas applicable, or other agreements in connection with the consummation of the transactions contemplated hereby; or (3iii) required to prevent a material adverse effect affecting either of their respective business and operations Material Adverse Effect with respect to the Company or Parent from occurring prior to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) . In the event that any Party either party shall fail to obtain any third-third party consent described in subsection (c)(ii) abovethe first sentence of this Section 5.6(b), such Party party shall use all its reasonable best efforts, and shall take any such actions reasonably requested by any the other Partyparty hereto, to limit the minimize any adverse effect upon OTE the Company and TetriDynParent, their respective Subsidiaries, and their respective subsidiaries and their respective businessesbusinesses resulting, resulting or that which could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matter.
Appears in 2 contracts
Samples: Merger Agreement (Sorrento Networks Corp), Merger Agreement (Zhone Technologies Inc)
Appropriate Action; Consents; Filings. (a) OTE Upon the terms and TetriDyn shall usesubject to the conditions set forth in this Agreement, each of the Company and Parent shall, and shall cause each of the Company Subsidiaries and Parent Subsidiaries, as applicable, and their respective subsidiaries Representatives to, use reasonable best efforts to use, all reasonable efforts to: (i) take, or cause to be taken, all appropriate actionactions, and to do, or cause to be done, and to assist and cooperate with the other Party in doing, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise pursuant to any contract or agreement to consummate and make effective effective, as promptly as practicable, the transactions contemplated by this Agreement; (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, or orders required to be obtained or made by OTE or TetriDyn or any subsidiary in connection with the authorization, execution, and delivery of this Agreement Merger and the consummation of the other transactions contemplated hereby, including (i) the Merger; taking of all actions necessary to cause the conditions to Closing set forth in Article 8 to be satisfied, (iiiii) make the obtaining of all necessary filingsactions or non-actions, waivers, consents and thereafter make any approvals from Governmental Authorities or other required submissions, respecting this Agreement and the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other Persons necessary in connection with the consummation of the Merger and the other transactions contemplated hereby and the making of all such filingsnecessary registrations and filings (including filings with Governmental Authorities, including providing copies if any) and the taking of all such documents reasonable steps as may be necessary to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletionsobtain an approval or waiver from, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for to avoid an action or proceeding by, any application Governmental Authority or other filing to be made pursuant to the rules and regulations of any applicable Law Persons necessary in connection with the consummation of the Merger and the other transactions contemplated by hereby, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement and/or the consummation of the Merger or the other transactions contemplated hereby, and (iv) the execution and delivery of any additional instruments necessary to consummate the Merger and the other transactions contemplated hereby, and to fully carry out the purposes of this Agreement.
(b) OTE In connection with and TetriDyn agree without limiting the foregoing, each of Parent and the Company shall give (or shall cause the Company Subsidiaries and Parent Subsidiaries, as applicable, and their respective Representatives to cooperate respectinggive) any notices to any Person, to and each of Parent and the Company shall use, and cause each of their respective subsidiaries the Parent Subsidiaries and the Company Subsidiaries, as applicable, to use, reasonable best efforts to obtain any consents from any Person not covered by Section 7.6(a) that are necessary, proper or advisable to consummate the Merger or the other transactions contemplated hereby. Each of the Parties will furnish to the other such necessary information and reasonable assistance as the other may reasonably request in connection with the preparation of any required governmental filings or submissions and will cooperate respectingin responding to any inquiry from a Governmental Authority, including promptly informing the other Party of such inquiry, consulting in advance before making any presentations or submissions to a Governmental Authority, and to use supplying each other with copies of all reasonable efforts vigorously to contest material correspondence, filings or communications between either Party and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, Authority with respect to this Agreement or prohibits the consummation of the Merger or any the other transactions contemplated by this Agreementhereby. To the extent reasonably practicable, including by vigorously pursuing the Parties or their Representatives shall have the right to review in advance, and each of the Parties will consult the others on, all available avenues the information relating to the other and each of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actionstheir Affiliates that appears in any filing made with, including or written materials submitted to, any Governmental Authority in connection with the disposition of assets Merger or the withdrawal other transactions contemplated hereby, except that confidential competitively sensitive business information may be redacted from doing business such exchanges. To the extent reasonably practicable, neither the Company nor Parent shall, nor shall they permit their respective Representatives to, participate independently in particular jurisdictionsany meeting or engage in any substantive conversation with any Governmental Authority in respect of any filing, required investigation or other inquiry without giving the other Party prior notice of such meeting or conversation and, to the extent permitted by regulatory authorities as applicable Law, without giving the other Party the opportunity to attend or participate (whether by telephone, virtually or in person) in any such meeting with such Governmental Authority. Notwithstanding the foregoing, obtaining any approval or consent from any Person pursuant to this Section 7.6(b) shall not be a condition to the granting obligations of the Parties to consummate the Merger.
(c) In connection with obtaining any approvals required in order approval or consent from any Person (other than any Governmental Authority) with respect to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable to consummate the transactions contemplated by this Agreement; (2) otherwise required under any contracts, licenses, leases, or other agreements in connection with the consummation of the transactions contemplated hereby; , none of the Parties, the Company Subsidiaries or (3) required the Parent Subsidiaries, or any Representatives of a Party, shall be obligated to prevent a material adverse effect affecting either of their respective business and operations from occurring pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Person prior to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matter.
Appears in 2 contracts
Samples: Merger Agreement (Office Properties Income Trust), Merger Agreement (Diversified Healthcare Trust)
Appropriate Action; Consents; Filings. (a) OTE Upon the terms and TetriDyn subject to the conditions set forth in this Agreement, each of the parties hereto shall use, (and shall cause each of their respective subsidiaries applicable Affiliates and Subsidiaries to) use its reasonable best efforts to use, all reasonable efforts to: (i) take, or cause to be taken, all appropriate actionactions, and use its reasonable best efforts to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper, proper or advisable under applicable Laws to consummate, as promptly as practicable, the Merger and the other transactions contemplated by this Agreement. Without limiting the foregoing, each of the parties agree to use its respective reasonable best efforts to (i) cause the conditions to the Merger set forth in Article VII to be satisfied as promptly as practicable, (ii) obtain all necessary consents, approvals, orders, waivers, finding of suitability and authorizations of, actions or otherwise to consummate and make effective nonactions by, any Governmental Authority (including Gaming Authorities) or any third party necessary in connection with the consummation of the transactions contemplated by this Agreement; (ii) obtain from , including the Merger and make all necessary registrations, declarations and filings with, and notices to, any Governmental Entities Authorities (including pursuant to the HSR Act any consents, licenses, permits, waivers, approvals, authorizationsother applicable Antitrust Law necessary to start any applicable waiting period and including under Gaming Laws) and take all reasonable steps as may be necessary to obtain an approval from, or orders required to be obtained avoid a suit, action, proceeding or made by OTE investigation by, any Governmental Authority or TetriDyn or any subsidiary other Persons necessary in connection with the authorization, execution, and delivery of this Agreement and the consummation of the transactions contemplated herebyby this Agreement, including the Merger; (iii) make all necessary filingsprovided, and thereafter make any other required submissions, respecting this Agreement and the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn in no event shall cooperate with each other in connection with the making Company or any of all such filingsits Subsidiaries be required to pay, including providing copies of all such documents prior to the other Party and its advisers prior to such filings andEffective Time, if requestedany fee, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application penalty or other filing consideration to be made pursuant to the rules and regulations of obtain any applicable Law consent, approval, order, waiver or authorization in connection with the transactions contemplated by this Agreement.
, including the Merger, under any Contract other than de minimis amounts or amounts that are advanced or reimbursed substantially simultaneous by Parent and (biii) OTE execute and TetriDyn deliver any additional instruments necessary to consummate the Merger and any other transactions to be performed or consummated by such party in accordance with the terms of this Agreement and to carry out fully the purposes of this Agreement. In no event shall the Company (A) be required to agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist take or enter into any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that action which is in effect and that restricts, prevents, or prohibits not conditioned upon the consummation of the Merger or (B) agree to any obligation or concession or other action relating to the Antitrust Approvals or the Required Gaming Approvals without the prior written consent of Parent; provided, that, notwithstanding the foregoing, it is understood and agreed that any failure by the Company to agree to any such obligation or concession by reason of Parent’s withholding its written consent from the Company to do so shall not constitute a breach by the Company of this Section 6.3. Neither Parent nor Merger Sub shall be required to make (or cause its applicable Affiliates or Subsidiaries to make) any such concessions or undertakings (x) unless such concessions or undertakings are conditioned on the consummation of the Merger, and (y) to the extent that, in the sole judgment of Parent, such concessions or undertakings would reasonably be expected to require Parent and its Affiliates (including, following the Merger, the Company and its Subsidiaries) to, directly or indirectly, incur costs, expenses, liabilities or losses of any kind, suffer any diminution of value, lose or forfeit any revenues, profits or expected benefits of the Merger, or diminish the combined value of Parent, the Company and their respective Subsidiaries following the Merger, in an aggregate amount in excess of $80,000,000.
(b) Each of the Company, Parent and Merger Sub agrees (i) promptly after the date hereof, but in any event within ten (10) Business Days following the date hereof, to file all Notification and Report Forms required under the HSR Act with respect to the transactions contemplated hereby, (ii) to file all other notifications required under any other Antitrust Law or any Gaming Law with respect to this Agreement and the transactions contemplated hereby, including the Merger, (including all required initial applications and documents in respect of officers and directors and Affiliates in connection with obtaining the Gaming Approvals (and where appropriate indications of further information to come by supplementary filing)) as soon as reasonably practicable (and in any event within forty (40) days following the date hereof with respect to the Gaming Approvals set forth on Section 7.1(c)(I) of the Company Disclosure Letter and within sixty (60) days following the date hereof with respect to any other applicable approvals), (iii) to supply as promptly as reasonably practicable any additional information and documentary material in its possession that may be requested pursuant to the HSR Act, any other Antitrust Law or any Gaming Law, and (iv) to use its reasonable best efforts to take or cause to be taken all actions necessary, proper or advisable consistent with, and subject to, the other provisions of this Section 6.3, to (A) cause the expiration or termination of the applicable waiting periods under the HSR Act or any other Antitrust Law as promptly as reasonably practicable, including, if possible under applicable Law, by requesting early termination thereof, and (B) obtain all Gaming Approvals required to permit the parties hereto to consummate the transactions contemplated by this Agreement or necessary to permit Parent to acquire, own and operate the Company. Each of Parent and Merger Sub, on the one hand, and the Company, on the other hand, shall, in connection with the efforts referred to in Section 6.3(a) to obtain all requisite approvals and authorizations for the transactions contemplated by this Agreement under the HSR Act, any other Antitrust Law or any Gaming Law, use reasonable best efforts to (A) cooperate in all respects with each other in connection with any filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (B) keep the other party reasonably informed of any communication received by such party from, or given by such party to, any Governmental Authority and of any communication received or given in connection with any proceeding by a private party, in each case regarding any of the transactions contemplated hereby (other than to the extent relating to private or personal information pertaining to any individual which may remain confidential); and (C) reasonably permit the other party to review any material communication given by it to, and consult with each other in advance of any meeting or conference, where reasonably practicable to do so, with, any Governmental Authority or, in connection with any proceeding by a private party, with any other Person, and to the extent permitted by such applicable Governmental Authority or other Person, give the other party the opportunity to attend and participate in such meetings and conferences (telephonic or in person), where reasonably practicable to do so; provided, that, Parent, after prior, good faith consultation with the Company and after considering, in good faith, the Company’s views and comments, shall have the principal responsibility for devising and implementing the strategy for obtaining any of the Antitrust Approvals or Required Gaming Approvals and shall take the lead in all meetings and communications with, or Proceeding involving, any Governmental Authority in connection with obtaining the Antitrust Approvals and the Required Gaming Approvals; provided, however, that the consent of each party shall be required prior to the taking of any action (including the failure to take any such action) in connection with obtaining any Antitrust Approvals or Required Gaming Approvals if such action (or failure to act) would be reasonably likely to materially delay, or materially impair the likelihood of obtaining, any such approvals.
(c) In furtherance and not in limitation of the covenants of the parties contained in Section 6.3(a) and Section 6.3(b), subject to the last sentence of Section 6.3(a), if any objections are asserted with respect to the transactions contemplated hereby under any Antitrust Law or Gaming Law or if any Proceeding, whether judicial or administrative, is instituted (or threatened in writing to be instituted) by any Governmental Authority or any other private party challenging any of the transactions contemplated hereby as violative of any Antitrust Law or Gaming Law or which would otherwise prevent or materially impede, interfere with, hinder or delay the consummation of the Merger and the other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues each of administrative Parent and judicial appeal and legislative action. OTE and TetriDyn also agree the Company shall, subject to take all actions, the other provisions of this Section 6.3 (including the disposition last sentence of assets Section 6.3(a)), use reasonable best efforts to resolve any such objections or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities suits so as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable to consummate the transactions contemplated by this Agreement; (2) otherwise required under , including seeking to have any contracts, licenses, leasesstay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed and taking, or other agreements in connection with the consummation of the transactions contemplated hereby; or (3) required agreeing to prevent take, a material adverse effect affecting either of their respective business and operations from occurring prior to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consentDivestiture Action.
(d) OTE The Company shall if requested in writing by Parent, promptly take any and TetriDyn shall promptly notify all actions necessary to withdraw its license from the other of: Casino Committee of the Ministry of Tourism in Greece (the “Specified Greece Gaming Approvals”); provided that, (i) in any material change such written request, Parent has confirmed in its current an irrevocable written notice delivered to the Company that all of the conditions set forth in Sections 7.1 and 7.2 have been satisfied or future businesswaived (other than those conditions that by their nature are to be satisfied or waived at the Merger Closing, assetsprovided that such conditions are reasonably capable of being satisfied), liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) Merger Closing shall occur immediately following the Company’s delivery of any Governmental Entities respecting its business or such withdrawal notice in respect of the transactions contemplated hereby; Specified Greece Gaming Approvals and (iii) nothing in this Section 6.3(d) shall otherwise affect the institution or the threat obligations of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true Parent and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matterMerger Sub hereunder.
Appears in 2 contracts
Samples: Merger Agreement (Scientific Games Corp), Merger Agreement (WMS Industries Inc /De/)
Appropriate Action; Consents; Filings. (a) OTE Upon the terms and TetriDyn subject to the conditions set forth in this Merger Agreement, the Parties shall use, and shall cause each of use their respective subsidiaries reasonable best efforts to use, all reasonable efforts to: (i) take, or cause to be taken, all appropriate action, and do, or cause to be done, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise to consummate and make effective the transactions contemplated by this Merger Agreement as promptly as practicable, including, without limitation, (i) executing and delivering any additional instruments necessary, proper or advisable to consummate the transactions contemplated by, and to carry out fully the purposes of, this Merger Agreement; , (ii) obtain obtaining from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, or orders material Licenses required to be obtained or made by OTE or TetriDyn Acquiror, or any subsidiary of its Subsidiaries, or Company, or any Company Subsidiary, in connection with the authorization, execution, execution and delivery of this Merger Agreement and the consummation of the transactions contemplated herebyherein, including including, without limitation, the Merger; , and (iii) make making all necessary filings, and thereafter make making any other required submissions, respecting with respect to this Merger Agreement and the Merger required under: under (1A) the Securities HSR Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2B) any other applicable Law; provided that, OTE PROVIDED that Acquiror and TetriDyn Company shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other non-filing Party and its advisers advisors prior to such filings and, if requested, shall accept filing and discussing all reasonable additions, deletions, deletions or changes suggested in connection therewith. OTE Company and TetriDyn Acquiror shall furnish to each other all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Merger Agreement.
(b) OTE and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE Except as the Parties may otherwise agree, Company, each Company Stockholder and TetriDyn Acquiror shall give (and, in the case of Company, shall cause each Company Subsidiary to give, and, in the case of Acquiror, shall cause its Subsidiaries to give) any notices to third parties, and use and (and, in the case of Company, shall cause each Company Subsidiary to use, and, in the case of Acquiror, shall cause its Subsidiaries to use) their respective subsidiaries to use all reasonable best efforts to obtain any third-party consents: , approvals or waivers (1A) necessary, proper, proper or advisable to consummate the transactions contemplated by in this Merger Agreement; , (2B) otherwise disclosed or required under any contractsto be disclosed in the Company Disclosure Letter or the Acquiror Disclosure Letter, licenses, leasesas the case may be, or other agreements in connection with the consummation of the transactions contemplated hereby; or (3C) required to prevent a material adverse effect affecting either of their respective business and operations from occurring prior to the Effective Time or a TetriDyn Company Material Adverse Effect from occurring after the Effective Timeor an Acquiror Material Adverse Effect.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party of Company, any Company Stockholder or Acquiror shall fail to obtain any third-party consent consent, approval or waiver described in subsection (c)(iiSection 6.02(b)(i) aboveof this Merger Agreement, such Party shall use all its reasonable best efforts, and shall take any such actions reasonably requested by any the other PartyParties, to limit the minimize any adverse effect upon OTE Company or any Company Subsidiary and TetriDyn, Acquiror or its Subsidiaries and their respective subsidiaries and their respective businessesbusinesses resulting, resulting or that which could reasonably be expected to result after the Effective Time, from the failure to obtain such consent, approval or waiver.
(dc) OTE From the date of this Merger Agreement until the Effective Time, Company and TetriDyn Acquiror shall promptly notify each other in writing of any pending or, to the knowledge of Company or any Company Subsidiary or Acquiror or any one of its Subsidiaries, threatened action, proceeding or investigation by any Governmental Entity or any other of: Person (i) any material change challenging or seeking damages in its current connection with the Merger or future business, assets, liabilities, financial condition, or results the conversion of operations; (ii) any complaints, investigations, or hearings (or communications indicating that Company Common Stock into the same may be contemplated) of any Governmental Entities respecting its business Merger Consideration pursuant to the Merger or the transactions contemplated hereby; hereunder or (iiiii) seeking to restrain or prohibit the institution consummation of the Merger or the threat transactions contemplated hereunder or otherwise limit the right of material litigation involving it Acquiror or its Subsidiaries to own or operate all or any portion of its subsidiaries; the businesses or (iv) Assets of Company or any event or condition that might reasonably be expected to cause Company Subsidiary. Company and Acquiror shall cooperate with each other in defending any of its representationssuch action, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or investigation, including seeking to have any stay or temporary restraining order entered by any court or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, Governmental Entity vacated or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matterreversed.
Appears in 2 contracts
Samples: Merger Agreement (Titan Corp), Merger Agreement (Titan Corp)
Appropriate Action; Consents; Filings. (a) OTE Each of the Parties agrees to cooperate and TetriDyn shall use, and shall cause each of their respective subsidiaries to use, all respectively use its commercially reasonable efforts to: to (ia) take, or cause to be taken, all appropriate action, and do, or cause to be done, all things necessary, proper, proper or advisable under applicable Laws laws or otherwise to cause the conditions to each Closing to be satisfied by such Party and to consummate and make effective the transactions contemplated by this Agreement; , and (iib) make all necessary filings, give all notices and obtain from any Governmental Entities governmental or regulatory authorities or third parties any consents, licenses, permits, waivers, approvals, authorizations, authorizations or orders required to be obtained or made by OTE or TetriDyn or any subsidiary such Party in connection with order to consummate and thereafter make effective the authorizationtransactions contemplated hereby as promptly as practicable. Without limitation of the foregoing, execution, each Party shall submit applications for all necessary licenses and delivery permits as promptly as practicable after the date of this Agreement and, where permitted by applicable law and regulations, will use its commercially reasonable efforts to apply for temporary licenses or permits to the consummation extent necessary to avoid any delay in any Closing. To the extent that any liquor licenses or other licenses or permits have not been effectively issued to a necessary Party at the applicable Closing Date, then to the extent permitted by applicable law, the assigning Party agrees to allow the other Party to operate the applicable Property under such Party's licenses and permits for a period of up to 180 days after the Closing Date at no additional cost, and if requested by such Party prior to the applicable Closing Date, the Parties shall enter into a written management agreement to the foregoing effect and otherwise in customary form.
(b) Without limitation of the transactions contemplated herebyforegoing, including the Merger; (iii) make all necessary filings, Parties shall cooperate and thereafter respectively use their commercially reasonable efforts to make any other required submissionsfilings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, respecting this Agreement and the Merger required under: (1) the Securities Act and the Exchange Actas amended, and the rules and regulations thereunderpromulgated thereunder (the "HSR Act"), and any other to cause the expiration or termination of the applicable federal or state securities Laws; and (2) any other waiting periods under the HSR Act applicable Law; provided that, OTE and TetriDyn shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated hereby as soon as practicable. Notwithstanding anything herein to the contrary, Circle K shall have the sole right to determine, direct and have full control over the strategy and process by which the Parties will seek any required approvals under the HSR Act or any other antitrust laws and to control the defense or prosecution of any claims, actions or proceedings relating thereto, provided, that nothing in this Agreement.
(b) OTE and TetriDyn agree to cooperate respecting, to cause each Agreement shall require any of Party or any of their respective subsidiaries affiliates to cooperate respectingoffer, and to use all reasonable efforts vigorously to contest and resist any actionaccept, including legislative, administrativeagree to, or judicial action, and commit to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third partiesrestriction, and use and cause their respective subsidiaries to use prohibition or limitation of ownership or operation by any Party or its affiliates of all reasonable efforts to obtain or any third-party consents: portion of the businesses or assets of such Party in any manner in any part of the world, (1ii) necessaryany requirement that any Party sell, properdivest, hold separate or otherwise dispose of, or advisable to consummate the transactions contemplated by this Agreement; (2) otherwise required under enter into a voting trust, proxy or “hold separate” contract or similar contract with respect to, all or any contracts, licenses, leases, or other agreements in connection with the consummation of the transactions contemplated hereby; or (3) required to prevent a material adverse effect affecting either portion of their respective business and operations from occurring prior to the Effective Time businesses or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness assets or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In any restriction, prohibition or limitation on the event that ability of any Party shall fail or its affiliates to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and conduct their respective businesses, resulting enter into any new line of business or that could reasonably be expected to result after own or operate any of their respective assets, in each case, in any manner in any part of the Effective Time, from the failure world in order to obtain such consent.
any approval or consent under the HSR Act or any other applicable antitrust laws. Each Party shall be responsible for one-half of any filing fees payable under the HSR Act. To the extent permitted by applicable law, each Party shall (dx) OTE and TetriDyn shall promptly notify permit the other of: to review in advance and incorporate the other Party’s reasonable comments in any proposed written submissions to the Federal Trade Commission (ithe "FTC") any material change or the Department of Justice (the "DOJ") and (y) consult with the other Party in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) advance of any Governmental Entities respecting its business meeting or teleconference with the FTC or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representationsDOJ and, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business extent allowed by the FTC or DOJ, permit the other to attend and operations of participate in any meetings or teleconferences with the subject entity, if in existence on the date hereof, FTC or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matterDOJ.
Appears in 2 contracts
Samples: Asset Exchange Agreement (CrossAmerica Partners LP), Asset Exchange Agreement
Appropriate Action; Consents; Filings. (a) OTE The Company and TetriDyn Parent shall use, and shall cause each of use their respective subsidiaries reasonable best efforts to use, all reasonable efforts to: (i) take, or cause to be taken, all appropriate action, action and do, or cause to be done, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise to consummate and make effective the Merger and the other transactions contemplated by this Agreement; Agreement as promptly as practicable, (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, authorizations or orders required to be obtained by Parent or made by OTE or TetriDyn the Company or any subsidiary of their respective Subsidiaries, or to avoid any action or proceeding by any Governmental Entity (including those in connection with the HSR Act and Title 30: Public Service, Vermont Statutes Annotated), in connection with the authorization, execution, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, including the Merger; (iii) cause the satisfaction of all conditions set forth in Article VI, (iv) vigorously defend all lawsuits or other legal, regulatory or other proceedings to which it is a party challenging or affecting this Agreement or the consummation of the transactions contemplated by this Agreement, in each case until the issuance of a final, non-appealable order, (v) seek to have lifted or rescinded any injunction or restraining order which may adversely affect the ability of the parties to consummate the transactions contemplated hereby and (vi) as promptly as practicable, and in any event within 60 days after the date hereof, make or cause to be made all necessary applications and filings, and thereafter make any other required submissions, respecting and pay any fees due in connection therewith, with respect to this Agreement and the Merger required under: (1) under or with respect to the Securities Act and Company Required Governmental Approvals, the Exchange HSR Act, Title 30: Public Service, Vermont Statutes Annotated, Section 721 of Title VII of the Defense Production Act of 1950, as amended by the Omnibus Trade and the rules and regulations thereunderCompetitiveness Act of 1988, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided thatprovided, OTE that the Company and TetriDyn Parent shall cooperate with each other in connection with determining whether any action by or in respect of, or filing with, any Governmental Entity is required in connection with the consummation of the Merger and seeking any such actions, consents, approvals or waivers or making of all any such filings, including providing copies of all such documents to the other Party . The Company and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn Parent shall furnish to each other all information required for any application or other filing to be made pursuant to under the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE and TetriDyn agree . Neither the Company nor Parent shall consent to cooperate respectingany voluntary delay of the Closing at the behest of any Governmental Entity without the consent of the other, to cause each which consent shall not be unreasonably withheld, delayed or conditioned. Neither Parent nor the Company, directly or indirectly through one or more of their respective subsidiaries to cooperate respectingaffiliates, and to use all reasonable efforts vigorously to contest and resist shall take any action, including legislativeacquiring or making any investment in any corporation, administrativepartnership, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, limited liability company or other order (whether temporarybusiness organization or any division or assets thereof, preliminary, that would reasonably be expected to cause a material delay in the satisfaction of the conditions contained in Article VI or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger Merger. Without limiting the foregoing, Parent agrees to take, or cause to be taken, any and all steps and to make, or cause to be made, any and all undertakings necessary to avoid or eliminate each and every impediment under any antitrust, merger control, competition or trade regulation Law or any other transactions contemplated Law applicable to the Company, any Company Subsidiary or the Merger that may be asserted by this Agreementany Governmental Entity with respect to the Merger so as to enable the Effective Time and the Closing, respectively, to occur as promptly as practicable (and in any event, no later than the Extended Outside Date), including (A) proposing, negotiating, committing to and effecting, by vigorously pursuing all available avenues consent decree, hold separate order or otherwise, the sale, divestiture, licensing or disposition of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree such assets or businesses of Parent or the Company or any of their respective Subsidiaries or (B) accepting any operational restrictions, including restrictions on the ability to change rates or charges or standards of service, or otherwise taking or committing to take all actionsactions that limit Parent’s or any Parent Subsidiary’s freedom of action with respect to, including or its ability to retain or freely operate, any of the disposition assets, properties, licenses, rights, product lines, operations or businesses of assets Parent, the Company or the withdrawal from doing business any of their respective Subsidiaries, in particular jurisdictions, required by regulatory authorities each case as a condition to the granting of any approvals may be required in order to permit avoid the consummation of the Merger or as may be required to avoid, lift, vacateentry of, or reverse to effect the lifting or dissolution of, any legislative injunction, temporary restraining order or judicial action that other order in any suit or proceeding, which would otherwise cause any condition have the effect of preventing or delaying the Effective Time or the Closing, as applicable. Notwithstanding the foregoing or anything in this Agreement to Closing not to be satisfied; providedthe contrary, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn Parent shall not be required to, and the Company shall not, in connection with obtaining any consents or approvals hereunder, or in connection with otherwise complying with any provisions of this Agreement, consent to or take any action that of the types described above, including proposing or making any divestiture or other undertaking or proposing, accepting or entering into any consent decree, hold separate order or operational restriction, in each case, that, individually or in the aggregate, would or could reasonably be expected to have a TetriDyn material adverse effect on Parent, the Surviving Corporation and the Parent Subsidiaries, taken as a whole. For the avoidance of doubt, none of the exclusions set forth in the definition of “Company Material Adverse Effect” shall be deemed to apply to any reference to “material adverse effect” in this Section 5.5(a).
(ib) OTE The Company and TetriDyn Parent shall give (or shall cause their respective Subsidiaries to give) any notices to third parties, and use use, and cause their respective subsidiaries Subsidiaries to use all use, their reasonable best efforts to obtain any third-third party consents: consents (1i) necessary, proper, proper or advisable to consummate the Merger and the other transactions contemplated by this AgreementAgreement or (ii) disclosed in the Company Disclosure Letter or the Parent Disclosure Letter, as applicable; (2) otherwise provided, however that the Company and Parent shall coordinate and cooperate in determining whether any actions, consents, approvals or waivers are required under to be obtained from parties to any contracts, licenses, leases, or other agreements Company Scheduled Contracts in connection with the consummation of the transactions contemplated hereby; Merger and in seeking any such actions, consents, approvals or (3) required to prevent a material adverse effect affecting either of their respective business and operations from occurring prior to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) waivers. In the event that any Party either party shall fail to obtain any third-third party consent described in subsection (c)(ii) abovethis Section 5.5(b), such Party party shall use all its reasonable best efforts, and shall take any such actions reasonably requested by any the other Partyparty hereto, to limit the minimize any adverse effect upon OTE the Company and TetriDynParent, their respective Subsidiaries and their respective subsidiaries and their respective businessesbusinesses resulting, resulting or that which could reasonably be expected to result result, after the Effective Time, as applicable, from the failure to obtain such consent.
(dc) OTE and TetriDyn shall promptly notify Without limiting the other ofgenerality of anything contained in this Section 5.5, each party hereto shall: (i) give the other parties prompt notice of the making or commencement of any material change in its current request, inquiry, investigation, action or future business, assets, liabilities, financial condition, legal proceeding by or results before any Governmental Entity with respect to the Merger or any of operationsthe other transactions contemplated by this Agreement; (ii) keep the other parties informed as to the status of any complaintssuch request, investigationsinquiry, investigation, action or hearings legal proceeding; and (iii) promptly inform the other parties of any communication to or communications indicating that from the same Federal Trade Commission, the Department of Justice, the FERC, the FCC, the NRC, the VPSB, CFIUS or any other Governmental Entity regarding the Merger. Each party hereto will consult and cooperate with the other parties and will consider in good faith the views of the other parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with the Merger or any of the other transactions contemplated by this Agreement. In addition, except as may be contemplated) of prohibited by any Governmental Entities respecting its business Entity or by any Law, in connection with any such request, inquiry, investigation, action or legal proceeding, each party hereto will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation, action or legal proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation, action or legal proceeding.
(d) Without limiting the generality of anything contained in this Section 5.5, Parent shall comply with the terms and conditions of the Order of the VPSB in Docket No. 6120 and 6460 entered June 26, 2001 (the “Sharing Order”) with regard to sharing with ratepayers and shareholders of the Company any premium above book value derived from the transactions contemplated hereby; by this Agreement, up to a maximum sharing of $16 million, as adjusted for inflation.
(iiie) Nothing contained in this Agreement shall give Parent or Merger Sub, directly or indirectly, the institution right to control or direct the threat operations of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected the Company prior to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material Prior to the Effective Time, the Company shall exercise, consistent with the terms and conditions of this Agreement, complete unilateral control and supervision over its business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matteroperations.
Appears in 2 contracts
Samples: Merger Agreement (Central Vermont Public Service Corp), Merger Agreement (Central Vermont Public Service Corp)
Appropriate Action; Consents; Filings. (a) OTE The Seller and TetriDyn the Company shall use, and shall cause each of their respective subsidiaries to use, use all reasonable efforts to: to (i) take, or cause to be taken, all appropriate action, and do, or cause to be done, all things necessary, proper, proper or advisable under applicable Laws or otherwise Law to consummate and make effective the transactions contemplated by this Agreement; , (ii) obtain from any Governmental Entities any all consents, licenses, permits, waivers, approvals, authorizations, authorizations or orders required under Law (including, without limitation, all foreign and domestic (federal, state and local) governmental and regulatory rulings and approvals and parties to be obtained or made by OTE or TetriDyn or any subsidiary contracts) required in connection with the authorization, execution, execution and delivery of this Agreement and the consummation by them of the transactions contemplated hereby, including the Merger; (iii) make all necessary filings, and thereafter make any other required submissions, respecting with respect to this Agreement and the Merger required under: under (1A) the Securities Act and the Exchange Act, Act and the rules and regulations thereunder, and any other applicable federal or state securities Laws; laws, (B) applicable federal or state banking laws and (2C) any other applicable Law; provided that, OTE the Company and TetriDyn the Seller shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party non-filing party and its advisers advisors prior to such filings filing and, if requested, shall to accept all reasonable additions, deletions, deletions or changes suggested in connection therewith. OTE The Seller and TetriDyn the Company shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law (including all information required to be included in the Proxy Statement/Prospectus and the Registration Statement) in connection with the transactions contemplated by this Agreement.
(b) OTE and TetriDyn agree . In case at any time after the Effective Time any further action is necessary or desirable to cooperate respecting, to cause each carry out the purposes of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues the proper officers and directors of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree each party to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event this Agreement shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable to consummate the transactions contemplated by this Agreement; (2) otherwise required under any contracts, licenses, leases, or other agreements in connection with the consummation of the transactions contemplated hereby; or (3) required to prevent a material adverse effect affecting either of their respective business and operations from occurring prior to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Timetake all such necessary action.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matter.
Appears in 2 contracts
Samples: Merger Agreement (Life Financial Corp), Merger Agreement (Firstplus Financial Group Inc)
Appropriate Action; Consents; Filings. (a) OTE The Company and TetriDyn Parent shall use, and shall cause each of use their respective subsidiaries reasonable best efforts to use, all reasonable efforts to: (i) take, or cause to be taken, all appropriate action, and do, or cause to be done, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise to consummate and make effective the transactions contemplated by this Agreement; Agreement as promptly as practicable, including, without limitation, obtaining shareholder approvals contemplated hereby, (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, authorizations or orders required to be obtained or made by OTE Parent or TetriDyn the Company or any subsidiary of their subsidiaries, or to avoid any action or proceeding by any Governmental Entity (including, without limitation, those in connection with the HSR Act), in connection with the authorization, execution, execution and delivery of this Agreement and the consummation of the transactions contemplated herebyherein, including including, without limitation, the Merger; , and (iii) make all necessary filings, and thereafter make any other required submissions, respecting with respect to this Agreement and the Merger required under: under (1x) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; , (y) the HSR Act and (2z) any other applicable Law; provided that, OTE that Parent and TetriDyn the Company shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party non-filing party and its advisers advisors prior to such filings filing and, if requested, shall to accept all reasonable additions, deletions, deletions or changes suggested in connection therewith. OTE Notwithstanding anything in this Agreement to the contrary, neither Parent nor the Company shall be required to (and TetriDyn neither shall without the consent of the other) propose, negotiate, commit to or effect, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of, or otherwise take any action that limits its freedom of action with respect to or its ability to retain, businesses, product lines, assets or properties, which are material in the aggregate to Parent and the Company taken together as a whole. The Company and Parent shall furnish to each other all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law (including all information required to be included in the Proxy Statement and the Registration Statement) in connection with the transactions contemplated by this Agreement.
(b) OTE Each of the parties hereto agrees, and TetriDyn agree to cooperate respecting, to shall cause each of their its respective subsidiaries to cooperate respecting, and to use all their respective reasonable best efforts vigorously to obtain any government clearances required for completion of the transactions (including through compliance with the HSR Act and any applicable foreign governmental reporting requirements), to respond to any government requests for information, and to contest and resist any action, including any legislative, administrative, administrative or judicial action, and to have vacated, lifted, reversed, reversed or overturned any decree, judgment, injunction, injunction or other order (whether temporary, preliminary, preliminary or permanent) (an “"Order”") of any Governmental Entity that is in effect and that restricts, prevents, prevents or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable to consummate the transactions contemplated by this Agreement; (2) otherwise required under any contracts, licenses, leases, or other agreements in connection with the consummation of the transactions contemplated hereby; or (3) required to prevent a material adverse effect affecting either of their respective business and operations from occurring prior to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matter.
Appears in 2 contracts
Samples: Merger Agreement (Wausau Paper Mills Co), Merger Agreement (Mosinee Paper Corp)
Appropriate Action; Consents; Filings. (a) OTE LVGI and TetriDyn KETOSPORTS shall use, and shall cause each of use their respective subsidiaries reasonable best efforts to use, all reasonable efforts to: (i) take, or cause to be taken, all appropriate action, and do, or cause to be done, all things necessary, proper, proper or advisable under applicable Laws law or otherwise to consummate and make effective the transactions contemplated by this Agreement; , (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, authorizations or orders required to be obtained or make any filings with or notifications or submissions to any Governmental Entity (other than described in the following clause (iii)) required to be made by OTE or TetriDyn or any subsidiary LVGI and KETOSPORTS in connection with the authorization, execution, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, including the Merger; (iii) make all necessary filings, and thereafter make any other required submissions, respecting with respect to this Agreement and the Merger transactions contemplated herein, required under: under (1A) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and laws, und (2B) any other applicable Lawlaw; provided that, OTE that LVGI and TetriDyn KETOSPORTS shall cooperate with each other in connection with the making of all such filingsfilings and submissions. Each of LVGI and KETOSPORTS, including providing copies of all such documents upon request, shall furnish to the other Party others and to any Governmental Entity all information concerning itself and its advisers prior to subsidiaries, directors, officers and stockholders and such filings andother matters as may be reasonably necessary, if requested, shall accept all reasonable additions, deletions, advisable or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing or submission to be made pursuant to the rules and regulations of any applicable Law law in connection with the transactions contemplated by this Agreement.
(b) OTE LVGI and TetriDyn KETOSPORTS agree to cooperate respecting, with respect to cause each of their respective subsidiaries to cooperate respecting, and agree to use all their reasonable best efforts vigorously to contest and resist resist, any action, including legislative, administrative, administrative or judicial action, and to have vacated, lifted, reversed, reversed or overturned any decree, judgment, injunction, injunction or other order (whether temporary, preliminary, preliminary or permanent) (an “Order”) of any Court or other Governmental Entity that is in effect and that restricts, prevents, prevents or prohibits the consummation of the Merger transactions contemplated by this Agreement.
(i) Each of LVGI and KETOSPORTS shall give any notices to third Persons, and use their reasonable best efforts to obtain any third Persons consents (A) necessary, proper or any other advisable to consummate the transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions(B) otherwise required under any contracts, including the disposition of assets licenses, leases or the withdrawal from doing business other agreements in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit connection with the consummation of the Merger transactions contemplated hereby or as may be (C) required to avoidprevent a KETOSPORTS Material Adverse Effect or an LVGI Material Adverse Effect from occurring.
(ii) In the event that any party shall fail to obtain any third Person consent described in subsection (i) above, liftsuch party shall use its reasonable best efforts, vacateand shall take any such actions reasonably requested by the other parties, to limit the adverse effect upon LVGI, KETOSPORTS and their respective businesses resulting, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or which could reasonably be expected to have an OTE Material Adverse Effectresult, from the failure to obtain such consent.
(c) Nothing in this Agreement shall require LVGI to agree to, or permit KETOSPORTS to agree to, the imposition of conditions, the payment of any amounts or any requirement of divestiture to obtain any approval, and TetriDyn in no event shall not any party take, or be required to take take, any action that would or could reasonably be expected to have a TetriDyn KETOSPORTS Material Adverse Effect or a LVGI Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable to consummate the transactions contemplated by this Agreement; (2) otherwise required under any contracts, licenses, leases, or other agreements in connection with the consummation of the transactions contemplated hereby; or (3) required to prevent a material adverse effect affecting either of their respective business and operations from occurring prior to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE Each of LVGI and TetriDyn KETOSPORTS shall promptly notify the other of: others of (i) any material change in its current or future business, assets, liabilities, financial condition, condition or results of operations; , (ii) any complaints, investigations, investigations or hearings (or communications indicating that the same may be contemplated) of any Court or Governmental Entities respecting its business or with respect to the transactions contemplated hereby; hereby or its business, (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; it, or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, covenants or agreements set forth herein not to be true and correct at the Effective TimeClosing. As used in the preceding sentence, “"material litigation” " means any case, arbitration, arbitration or adversary proceeding or other matter that is material which would have been required to be disclosed by the business and operations parties prior to execution of this agreement, or disclosed in the subject entityLVGI annual report, as the case may be, if in existence on the date hereof, or for in respect of which the legal fees and other costs to TetriDyn LVGI or KETOSPORTS might reasonably be expected to exceed fifty thousand dollars ($10,000 over the life of the matter or to OTE (or any subsidiary50,000.00) might reasonably be expected to exceed $10,000 over the life of the matter.
Appears in 2 contracts
Samples: Acquisition Agreement (Limitless Venture Group Inc.), Acquisition Agreement (Limitless Venture Group Inc.)
Appropriate Action; Consents; Filings. (a) OTE The Company and TetriDyn the Acquiror shall use, and shall cause each of their respective subsidiaries to use, use all reasonable efforts to: (i) to take, or to cause to be taken, all appropriate actionactions, and to do, or to cause to be done, all things that, in either case, are necessary, proper, proper or advisable under applicable Laws Law or otherwise to consummate and make effective the transactions contemplated by this Agreement; Plan, (ii) to obtain from any Governmental Entities Authorities any consents, licenses, permits, waivers, approvals, authorizations, Authorizations or orders Orders required to be obtained or made by OTE the Acquiror or TetriDyn the Company or any subsidiary of their Subsidiaries in connection with the authorization, execution, delivery and delivery performance of this Agreement Plan and the consummation of the transactions contemplated hereby, including the Merger; , (iii) to make all necessary filings, and thereafter make any other required submissions, respecting with respect to this Agreement Plan and the Merger required under: under (1A) the Securities Act (in the case of Acquiror) and the Exchange Act, Act and the rules and regulations Regulations thereunder, and any other applicable federal or state securities Laws; , (B) the HSR Act and (2C) any other applicable Law; provided that, OTE . The Acquiror and TetriDyn the Company shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party nonfiling party and its advisers advisors prior to such filings and, if requested, shall accept all reasonable additions, deletions, deletions or changes suggested in connection therewith. OTE The Company and TetriDyn the Acquiror shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law or any applicable Regulations of any Governmental Authority (including all information required to be included in the Company Proxy Statement or the Registration Statement) in connection with the transactions contemplated by this AgreementPlan.
(b) OTE Each of the Company and TetriDyn the Acquiror shall give prompt notice to the other of (i) any notice or other communication from any Person alleging that the consent of such Person is or may be required in connection with the Merger, (ii) any notice or other communication from any Governmental Authority in connection with the Merger, (iii) any actions, suits, claims, investigations or proceedings commenced or threatened in writing against, relating to or involving or otherwise affecting the Company, the Acquiror or their Subsidiaries that relate to the consummation of the Merger; (iv) the occurrence of a default or event that, with notice or lapse of time or both, will become a default under any Material Contract of the Acquiror or Material Contract of the Company; and (v) any change that is reasonably likely to have a Material Adverse Effect on the Company or the Acquiror or is likely to delay or impede the ability of either the Acquiror or the Company to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein.
(c) The Acquiror Companies and the Company agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, administrative or judicial action, and to have vacated, lifted, reversed, reversed or overturned any decree, judgment, injunction, or other order Order (whether temporary, preliminary, preliminary or permanent) (an “Order”) of any Court or Governmental Entity Authority that is in effect and that restricts, prevents, prevents or prohibits the consummation of the Merger or any other transactions contemplated by this AgreementPlan, including by vigorously pursuing the vigorous pursuit of all available avenues of administrative and judicial appeal and all available legislative action. OTE Each of the Acquiror Companies and TetriDyn the Company also agree to take any and all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities any Court or Governmental Authority as a condition to the granting of any approvals required in order to permit Authorization or Order necessary for the consummation of the Merger or as may be required to avoid, lift, vacate, vacate or reverse any legislative or judicial action that which would otherwise cause any condition to the Closing not to be satisfied; provided, however, that in no event shall OTE either party take, or be required to take take, any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would Effect on the Company or could reasonably be expected to have a TetriDyn Material Adverse Effectthe Acquiror.
(i) OTE Each of the Company and TetriDyn Acquiror shall give (or shall cause their respective Subsidiaries to give) any notices to third partiesPersons, and use use, and cause their respective subsidiaries Subsidiaries to use use, all reasonable efforts to obtain any third-party consents: consents from third Persons (1A) necessary, proper, proper or advisable to consummate the transactions contemplated by this Agreement; Plan, (2B) otherwise required under any contracts, licenses, leases, leases or other agreements in connection with the consummation of the transactions contemplated hereby; hereby or (3C) required to prevent a material adverse effect affecting either of their respective business and operations Material Adverse Effect on the Company from occurring prior to or after the Effective Time or a TetriDyn Material Adverse Effect on the Acquiror from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of If any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent from a third Person described in subsection (c)(iid)(i) above, such Party party shall use all reasonable efforts, and shall take any such actions reasonably requested by any the other Partyparties, to limit the adverse effect upon OTE the Company and TetriDynAcquiror, their respective Subsidiaries, and their respective subsidiaries and their respective businessesbusinesses resulting, resulting or that which could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matter.
Appears in 2 contracts
Samples: Merger Agreement (Numar Corp), Merger Agreement (Halliburton Co)
Appropriate Action; Consents; Filings. (a) OTE The Company and TetriDyn Associated shall use, and shall cause each of their respective subsidiaries to use, use all reasonable efforts to: to (ia) take, or cause to be taken, all appropriate action, and do, or cause to be done, all things necessary, proper, or advisable under applicable Laws or otherwise Law to consummate and make effective the transactions contemplated by this Agreement; (iib) obtain from any Governmental Entities any all consents, licenses, permits, waivers, approvals, authorizations, or orders required under Law (including, without limitation, all foreign and domestic (federal, state, and local) governmental and regulatory rulings and approvals and parties to be obtained or made by OTE or TetriDyn or any subsidiary contracts) in connection with the authorization, execution, and delivery of this Agreement and the consummation by them of the transactions contemplated herebyhereby and thereby, including including, without limitation, the Merger; and (iiic) make all necessary filings, and thereafter make any other required submissions, respecting with respect to this Agreement and the Merger required under: under (1i) the Securities Act and the Exchange Act, Act and the rules and regulations thereunder, and any other applicable federal or state securities Laws; laws, (ii) any applicable federal or state banking laws, and (2iii) any other applicable Law; provided thatprovided, OTE that Associated and TetriDyn the Company shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party non-filing party and its advisers advisors prior to such filings filing and, if requested, shall to accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE The Company and TetriDyn Associated shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law (including all information required to be included in the Proxy Statement/Prospectus and the Registration Statement) in connection with the transactions contemplated by this Agreement.
(b) OTE and TetriDyn agree . In case at any time after the Effective Time any further action is necessary or desirable to cooperate respecting, to cause each carry out the purposes of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues the proper officers and directors of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree each party to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event this Agreement shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable take all such necessary action. The Company will use its best efforts to consummate the transactions contemplated by this Agreement; (2) otherwise required under any contracts, licenses, leases, or other agreements in connection assist with the consummation execution by each executive officer of the transactions contemplated hereby; or (3) required to prevent a material adverse effect affecting either Company listed on Exhibit 7.02(u), as of their respective business and operations from occurring prior to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release date of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding and delivery to Associated of each of the obligations to SICOG and EIDC Executive Agreements (as defined in Section 7.02(u)) in accordance with the terms set forth on Exhibit 7.02(u). Subject to the satisfaction of the other conditions in subsection 5.12(c).
(iii) In Section 7.01 and Section 7.02, Associated will execute, as of the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after date of the Effective Time, from and deliver to the failure applicable executive officers of the Company listed on Exhibit 7.02(u) each of the Executive Agreements applicable to obtain such consent.
Executive Officer (das defined in Section 7.02(u)) OTE and TetriDyn shall promptly notify applicable to such Executive Officer in accordance with the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements terms set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matterExhibit 7.02(u).
Appears in 2 contracts
Samples: Merger Agreement (Associated Banc-Corp), Merger Agreement (First Federal Capital Corp)
Appropriate Action; Consents; Filings. (a) OTE Subject to the terms and TetriDyn shall useconditions of this Agreement (including those set forth in Section 6.6), and shall cause each of the parties hereto will use their respective subsidiaries to use, all reasonable best efforts to: (i) take, or cause to be taken, all appropriate action, and do, or cause to be done, all things necessary, proper, or advisable under applicable Laws or otherwise to consummate and make effective the transactions contemplated by this Agreement; (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, or orders required hereby and to cause the conditions to the First Merger set forth in Article VII to be obtained satisfied, including using reasonable best efforts to accomplish the following: (i) the obtaining of all necessary actions or made by OTE non-actions, consents and approvals from Governmental Authorities or TetriDyn or any subsidiary other Persons necessary in connection with the authorizationconsummation of the transactions contemplated by this Agreement, executionincluding the First Merger, and delivery the making of all necessary registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary to obtain an approval from, or to avoid a Proceeding by, any Governmental Authority or other Persons necessary in connection with the consummation of the transactions contemplated by this Agreement, including the First Merger, (ii) the defending of any lawsuits or other legal Proceedings, whether judicial or administrative, challenging this Agreement and or the consummation of the transactions contemplated hereby, including the First Merger; , performed or consummated by such party in accordance with the terms of this Agreement, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed and (iii) make all the execution and delivery of any additional instruments reasonably necessary filings, to consummate the First Merger and thereafter make any other required submissions, respecting transactions to be performed or consummated by such party in accordance with the terms of this Agreement and to carry out fully the Merger purposes of this Agreement. Without limiting the generality of the foregoing, each of the parties hereto shall make any applications and filings as reasonably determined by the Company and Parent are required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other under applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate Antitrust Laws with each other in connection with the making of all such filings, including providing copies of all such documents respect to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated hereby as promptly as practicable, but in no event later than as required by this AgreementLaw. Parent shall pay all filing fees and other charges for the filings required under any Antitrust Law by the Company and Parent.
(b) OTE Parent and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also Acquisition Sub agree to take (and to cause their Affiliates to take) promptly any and all actions, including the disposition of assets steps necessary to avoid or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of eliminate each and every impediment and obtain all Consents under any approvals required in order to permit the consummation of the Merger or as Antitrust Laws that may be required by any foreign or United States federal, state or local Governmental Authority, in each case with competent jurisdiction, so as to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable enable the parties to consummate the transactions contemplated by this Agreement; (2) otherwise required under any contractsAgreement as promptly as practicable, licensesincluding committing to or effecting, leasesby consent decree, hold separate orders, trust, or other agreements otherwise, the sale or disposition of such assets or businesses as are required to be divested in connection with order to avoid the entry of, or to effect the dissolution of or vacate or lift, any Order, that would otherwise have the effect of preventing or materially delaying the consummation of the transactions contemplated hereby; by this Agreement. Further, and for the avoidance of doubt, Parent will take any and all actions necessary in order to ensure that (x) no requirement for any non-action by or consent or approval of the Antitrust Division, the Federal Trade Commission, or other Governmental Authority with respect to any Antitrust Laws, (3y) required no decree, judgment, injunction, temporary restraining order or any other Order in any Proceeding with respect to prevent a material adverse effect affecting either any Antitrust Laws, and (z) no other matter relating to any Antitrust Laws would preclude consummation of their respective business and operations from occurring prior to the Effective Time or a TetriDyn Material Adverse Effect from occurring after First Merger by the Effective TimeTermination Date.
(iic) OTE In connection with and TetriDyn shall use without limiting the efforts referenced in this Section 6.4, each of the parties hereto will furnish to the other such necessary information and cause their respective subsidiaries to use all reasonable efforts to obtain release assistance as the other may reasonably request in connection with the preparation of any guarantees required governmental filings or submissions and will cooperate in responding to any investigation or other inquiry from a Governmental Authority or in connection with any Proceeding initiated by a private party, including immediately informing the other party of such inquiry, consulting in advance before making any owner presentations or submissions to a Governmental Authority, or in connection with any Proceeding initiated by a private party, to any other Person, and supplying each other with copies of TetriDyn all material correspondence, filings or communications between either party and any Governmental Authority, or in connection with any Proceeding initiated by a private party, between either party and any other Person with respect to this Agreement. In addition, each of the parties hereto will give reasonable notice to and consult with the other in advance of any third-party indebtedness meeting or obligation that will not be paid, dischargedconference with any Governmental Authority, or otherwise satisfied at the Effective Timein connection with any Proceeding by a private party, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that with any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable effortsother Person, and shall take any such actions reasonably requested to the extent permitted by any the Governmental Authority or other PartyPerson, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify give the other of: (i) any material change the opportunity to attend and participate in its current such meeting or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matterconference.
Appears in 2 contracts
Samples: Merger Agreement (OHA Investment Corp), Merger Agreement (Portman Ridge Finance Corp)
Appropriate Action; Consents; Filings. (a) OTE Subject to the terms and TetriDyn conditions herein provided, the parties shall use, and shall cause each of their respective subsidiaries to use, all reasonable efforts to: (i) takeuse reasonable best efforts, in consultation with each other, to obtain any required consents, approvals, waivers and authorizations of, actions or cause to be taken, all appropriate actionnonactions by, and domake all required filings and submissions with, any Governmental Entity or cause to be done, all things necessary, proper, or advisable under applicable Laws or otherwise to consummate and make effective any third party required in connection with the consummation of the transactions contemplated by this Agreement; (ii) obtain from any Governmental Entities any use reasonable best efforts to cooperate with each other in (A) determining which filings are required to be made prior to the Closing with, and which material consents, licenses, permits, waivers, approvals, authorizationsPermits, notices or orders authorizations are required to be obtained prior to the Closing from, Governmental Entities or made by OTE or TetriDyn or any subsidiary third parties in connection with the authorization, execution, execution and delivery of this Agreement and the related agreements and consummation of the transactions contemplated herebyhereby and thereby and (B) timely making all filings and timely seeking all consents, including the Merger; approvals, Permits, notices or authorizations, (iii) make all necessary filingsuse reasonable best efforts to cause the conditions to the Mergers set forth in Article VII to be satisfied, and thereafter make any (iv) use reasonable best efforts to take, or cause to be taken, all other required submissionsactions and do, respecting this Agreement and the Merger required under: (1) the Securities Act and the Exchange Actor cause to be done, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other in connection with order to do, all other things necessary or appropriate to consummate the transactions contemplated hereby as soon as practicable. For purposes of this Agreement, and subject to Section 6.3(d), none of New Holdco, Montage or Marigold shall be permitted to assert that the making of all such filings, including providing copies of all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions Regulatory Divestitures as contemplated by this AgreementSchedule 6.3 do not constitute reasonable best efforts.
(b) OTE Montage and TetriDyn agree Marigold shall jointly, coordinate (i) the scheduling of, and strategic planning for, any meeting with any Governmental Entity in connection with the HSR Act, Communications Act and the FCC Rules, (ii) the making of any filings, including the initial filings under the HSR Act and the FCC Applications, (iii) the process for the receipt of any necessary approvals and (iv) the resolution of any investigation or other inquiry of any such Governmental Entity. Without limiting the foregoing sentence, except as prohibited by applicable Law, each of Montage and Marigold shall, (A) to cooperate respectingthe extent reasonably practicable, consult with each other prior to cause taking any material substantive position with respect to the filings under the HSR Act, Communications Act and the FCC Rules in discussions with or filings to be submitted to any Governmental Entity, (B) to the extent reasonably practicable, permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any analyses, presentations, memoranda, briefs, arguments, opinions and proposals to be submitted to any Governmental Entity with respect to filings under the HSR Act, Communications Act and the FCC Rules, and (C) to the extent reasonably practicable, coordinate with the other in preparing and exchanging such information and promptly provide the other (and its counsel) with copies of all filings, presentations or submissions (and a summary of any oral presentations) made by such party with any Governmental Entity relating to this Agreement or the transactions contemplated hereby under the HSR Act, Communications Act and the FCC Rules.
(c) Unless prohibited by applicable Law or by the applicable Governmental Entity, each of Montage and Marigold shall (i) not participate in or attend any meeting, or engage in any substantive conversation with any Governmental Entity in respect of the Mergers without the other, (ii) give the other reasonable prior notice of any such meeting or conversation and (iii) in the event one party is prohibited by applicable Law or by the applicable Governmental Entity from participating or attending any such meeting or engaging in any such conversation, keep such party reasonably apprised with respect thereto.
(d) Notwithstanding anything herein to the contrary, nothing set forth in this Section 6.3 or Schedule 6.3 shall (i) require, or be construed to require, New Holdco, Montage, Marigold or any of their respective subsidiaries Subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrativetake, or judicial actionagree to take, and to have vacated, lifted, reversed, any Regulatory Action or overturned make any decree, judgment, injunction, Regulatory Divestiture unless the Regulatory Action or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the Regulatory Divestiture shall be conditioned upon the consummation of the Second Merger and the transactions contemplated hereby, or (ii) require, or be construed to require, New Holdco, Montage, Marigold or any other transactions contemplated by this Agreementof their respective Subsidiaries to take, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also or agree to take, any Regulatory Action unless all Regulatory Actions would not result in a Regulatory Material Adverse Effect (as defined in Section 6.3(e)). Senior executives of Montage shall consult in good faith with senior executives of Marigold (with reasonable prior notice and giving due consideration to each other’s recommendations) with respect to any Regulatory Action that is not a Regulatory Divestiture specifically listed in Schedule 6.3, and neither Montage nor Marigold shall be permitted to take all actions, including any action as part of Regulatory Actions that would reasonably be expected to materially delay or impede receipt of the disposition of assets FCC Consent or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger Regulatory Actions or as may be required to avoidMergers.
(e) For purposes of Section 6.3(d), lift(i) “Regulatory Action” means any obligation, vacatecondition or other requirement imposed by a Governmental Entity in connection with this Agreement or the transactions contemplated hereby and (ii) “Regulatory Material Adverse Effect” means any Regulatory Action imposed on New Holdco, Montage, Marigold or reverse any legislative of their respective Subsidiaries, other than one or judicial action that more Regulatory Divestitures of the Divestiture Stations, that, individually or in the aggregate, would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to result in a material adverse effect on the business, financial condition or results of operations of a company the size of (and with results of operations equal to those of) Marigold and its Subsidiaries, taken as a whole, before the Second Merger Effective Time; provided that, for purposes of determining whether any Regulatory Actions would have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that or would or could reasonably be expected to have a TetriDyn Regulatory Material Adverse Effect.
(i) OTE and TetriDyn shall give , impacts of such Regulatory Actions on New Holdco, Montage, Marigold or any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable to consummate the transactions contemplated by this Agreement; (2) otherwise required under any contracts, licenses, leases, or other agreements in connection with the consummation of the transactions contemplated hereby; or (3) required to prevent a material adverse effect affecting either of their respective business and operations from occurring prior to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective TimeSubsidiaries shall be aggregated.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matter.
Appears in 2 contracts
Samples: Merger Agreement (Media General Inc), Merger Agreement (Meredith Corp)
Appropriate Action; Consents; Filings. (a) OTE Subject to the terms and TetriDyn shall useconditions hereof, and shall cause each of the parties hereto will use their respective subsidiaries to use, all reasonable best efforts to: (i) take, or cause to be taken, all appropriate action, and do, or cause to be done, all things necessary, proper, or advisable under applicable Laws or otherwise to consummate and make effective the transactions contemplated by this Agreement; Transactions and the Related Transactions and to cause the conditions to the Transactions set forth in ARTICLE IX to be satisfied, including:
(iii) obtain from any Governmental Entities any the obtaining of all necessary actions or nonactions, consents, licenses, permits, waivers, approvals, authorizations, terminations or orders required to be obtained expirations of waiting periods and approvals from Governmental Authorities or made by OTE or TetriDyn or any subsidiary other Persons necessary in connection with the authorizationconsummation of the Transactions and the making of all necessary registrations and filings (including filings with Governmental Authorities, executionif any) and the taking of all steps as may be necessary to obtain an approval from, or to avoid an action or proceeding by, any Governmental Authority or other Persons necessary in connection with the consummation of the Transactions (provided that, notwithstanding anything in this Agreement, in no event shall any party be required to make any payment to any such other Persons to obtain such approval);
(ii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the performance or consummation of the Transactions in accordance with the terms of this Agreement, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed; and
(iii) the execution and delivery of any additional instruments necessary to consummate the transactions to be performed or consummated by such party in accordance with the terms of this Agreement and to fully carry out the consummation purposes of this Agreement. Without limiting the foregoing, although Seller and Buyer Parent each acknowledge that they do not anticipate filings under the HSR Act are required, in the event any filing or submission is required under the HSR Act, each of the transactions contemplated hereby, including the Merger; (iii) parties hereto shall promptly make all necessary its respective filings, and thereafter make any other required submissions, respecting this Agreement under the HSR Act with respect to the Transactions. The Seller and the Merger Buyer Parent shall cooperate (A) in promptly determining whether any filings are required under: (1) the Securities Act and the Exchange Actto be or should be made or whether any consents, and the rules and regulations thereunderapprovals, and permits or authorizations are required to be or should be obtained under any other applicable federal federal, state or state securities Laws; and (2) non-U.S. Law or regulation or whether any consents, approvals or waivers are required to be or should be obtained from other applicable Law; provided that, OTE and TetriDyn shall cooperate with each parties to loan agreements or other contracts or instruments material to the Seller’s business in connection with the consummation of the Transactions and (B) in promptly making of all any such filings, including providing copies of all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested furnishing information required in connection therewith. OTE therewith and TetriDyn shall furnish all information required for seeking to obtain timely any application such consents, permits, authorizations, approvals or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreementwaivers.
(b) OTE In furtherance and TetriDyn not in limitation of the covenants of the parties contained in Section 10.5(a), each of the parties hereto shall use its reasonable best efforts to resolve such objections, if any, as may be asserted with respect to the Transactions by or under the HSR Act, the Federal Trade Commission or Department of Justice, including taking all reasonable actions to obtain clearance, or if such clearance cannot be obtained, to reach an agreement, settlement or consent with the Governmental Authority investigating the Transactions; provided, however, that the foregoing shall not require any party to agree to cooperate respectingany asset divestiture or restriction on its or its Subsidiaries’ business operations. In connection with the foregoing, if any administrative or judicial action or proceeding, including any proceeding by a private person, is instituted (or threatened to cause each be instituted) challenging any of their respective subsidiaries to cooperate respectingthe Transactions as violative of the HSR Act or any other antitrust or other Law in any jurisdiction, and to Buyer Parent shall use all its reasonable best efforts vigorously to contest and resist any action, including legislative, administrative, such action or judicial action, proceeding and to have vacated, lifted, reversed, reversed or overturned any decree, judgment, injunction, judgment or other order (order, whether temporary, preliminary, preliminary or permanent) (an “Order”) of any Governmental Entity , that is in effect and that restrictsprohibits, prevents, prevents or prohibits restricts the consummation of the Merger or any other transactions contemplated by this AgreementTransactions, including defending through litigation on the merits any claim asserted in any such action or proceeding by vigorously pursuing all available avenues of administrative any Person (and judicial appeal and legislative action. OTE and TetriDyn also agree the Seller shall cooperate with Buyer Parent with respect to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effectsuch matters).
(ic) OTE Each of Buyer Parent and TetriDyn the Seller shall give (or shall cause its respective Subsidiaries to give) any notices to third parties, and use Buyer Parent and the Seller shall use, and cause their respective subsidiaries each of its Subsidiaries to use all use, its reasonable best efforts to obtain any third-third party consents: (1consents not covered by Sections 10.5(a) and 10.5(b), necessary, proper, proper or advisable to consummate the transactions contemplated by this Agreement; Transactions. Each party shall without limitation: (1) promptly notify the other of, and if in writing, furnish the other with copies of (or, in the case of oral communications, advise the other of) any communications from or with any Governmental Authority with respect to the Transactions, (2) otherwise required under use its reasonable best efforts to permit the other to review and discuss in advance, and consider in good faith the views of the other in connection with, any contractsproposed written or any oral communication with any such Governmental Authority with respect to the Transactions, licenses(3) use its reasonable best efforts not to participate in any meeting or have any communication with any such Governmental Authority with respect to the Transactions, leasesunless it has given the other an opportunity to consult with it in advance and, or to the extent permitted by such Governmental Authority, gives the other agreements the opportunity to attend and participate therein, and (4) furnish the other with such necessary information and reasonable assistance as the other may reasonably request in connection with its preparation of necessary filings or submissions of information to any such Governmental Authority with respect to the consummation Transactions. Such materials and the information contained therein that is competitively sensitive shall be given only to the outside legal counsel of the transactions contemplated hereby; other party and will not be disclosed by such outside counsel to employees, officers, or (3) required to prevent a material adverse effect affecting either directors of their respective business and operations from occurring prior to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth client unless express permission is obtained in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, advance from the failure to obtain such consentdisclosing party or its legal counsel.
(d) OTE and TetriDyn shall promptly notify Seller will keep Buyer reasonably informed of the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) status of any approvals of a Governmental Entities respecting its business Authority or third party consents required with respect to the transactions contemplated hereby; (iii) by the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matterRelated Transaction Documents.
Appears in 2 contracts
Samples: Asset Purchase Agreement (SLM Corp), Asset Purchase Agreement (Student Loan Corp)
Appropriate Action; Consents; Filings. (a) OTE Upon the terms and TetriDyn subject to the conditions set forth in this Agreement, CMFT shall use, and shall cause each CMFT Subsidiary and each of their respective subsidiaries Affiliates to, and CCIT III shall and shall cause each CCIT III Subsidiary and each of their respective Affiliates to, use its reasonable best efforts to use, all reasonable efforts to: (i) take, or cause to be taken, all appropriate actionactions, and to do, or cause to be done, and to assist and cooperate with the other Parties in doing, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise pursuant to any Contract to consummate and make effective effective, as promptly as practicable, the transactions contemplated by this Agreement; (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, or orders required to be obtained or made by OTE or TetriDyn or any subsidiary in connection with the authorization, execution, and delivery of this Agreement Merger and the consummation of the transactions contemplated hereby, including the Merger; (iii) make all necessary filings, and thereafter make any other required submissions, respecting this Agreement and the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing (i) taking all available avenues of administrative actions necessary to cause the conditions to Closing set forth in Article 8 to be satisfied, (ii) preparing and judicial appeal filing any applications, notices, registrations and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or requests as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not advisable to be satisfied; provided, however, that filed with or submitted to any Governmental Authority in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable order to consummate the transactions contemplated by this Agreement; , (2iii) otherwise required under any contractsobtaining all necessary or advisable actions or nonactions, licenseswaivers, leases, consents and approvals from Governmental Authorities or other agreements Persons necessary in connection with the consummation of the Merger and the other transactions contemplated herebyby this Agreement and the making of all necessary or advisable registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary or advisable to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authority or other Persons necessary in connection with the consummation of the Merger and the other transactions contemplated by this Agreement, (iv) subject to Section 7.6(c), defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger or the other transactions contemplated by this Agreement, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed, the avoidance of each and every impediment under any antitrust, merger control, competition or trade regulation Law that may be asserted by any Governmental Authority with respect to the Merger so as to enable the Closing to occur as soon as reasonably possible, and (v) executing and delivering any additional instruments reasonably necessary or advisable to consummate the Merger and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement; provided, that, notwithstanding anything to the contrary in this Agreement, no Party will have any obligation (A) to propose, negotiate, commit to or effect, by consent decree, hold separate order or otherwise, the sale, divestiture or other disposition of any assets or businesses of such Party, any of its subsidiaries (including subsidiaries of CMFT after the Closing) or their Affiliates or (3B) required otherwise to prevent a material adverse effect affecting either take or commit to take any actions that would limit the freedom of such Party, its subsidiaries (including subsidiaries of CMFT after the Closing) or their Affiliates with respect to, or their ability to retain, one or more of their respective business businesses, product lines or assets; provided, further, that CCIT III and operations from occurring the CCIT III Subsidiaries shall not take any of the actions referred to in the proceeding proviso (or agree to take such actions) without CMFT’s prior written consent and CMFT can compel CCIT III and the CCIT III Subsidiaries to take any of the Effective Time actions referred to in the proceeding proviso (or a TetriDyn Material Adverse Effect from occurring agree to take such actions) if such actions are only effective after the Merger Effective Time.
(iib) OTE In connection with and TetriDyn without limiting the foregoing Section 7.5(a), each of the Parties shall use and give (or shall cause their respective subsidiaries Affiliates to use all give) any notices to third parties, and each of the Parties shall use, and cause each of their respective Affiliates to use, its reasonable best efforts to obtain release any third party consents that are necessary, proper or advisable to consummate the Merger and the other transactions contemplated by this Agreement. Each of the Parties will, and shall cause their respective Affiliates to, furnish to the other Parties such necessary information and reasonable assistance as the other Parties may request in connection with the preparation of any guarantees required applications, notices, registrations and requests as may be required or advisable to be filed with any Governmental Authority and will cooperate in responding to any inquiry from a Governmental Authority, including promptly informing the other Party of such inquiry, consulting in advance before making any presentations or submissions to a Governmental Authority, and supplying each other with copies of all material correspondence, filings or communications between such Party and any Governmental Authority with respect to this Agreement. CMFT shall have the right to direct all matters with any Governmental Authority in connection with this Agreement in a manner consistent with its obligations hereunder; provided that, to the extent reasonably practicable, the Parties or their Representatives shall have the right to review in advance and each of the Parties will consult the other Parties on, all the information relating to the other Parties and each of their Affiliates that appears in any filing made with, or written materials submitted to, any Governmental Authority in connection with the Merger and the other transactions contemplated by this Agreement, except that confidential competitively sensitive business information may be redacted from such exchanges. To the extent reasonably practicable, no Party shall, nor shall any owner of TetriDyn Party permit its respective Representatives to, participate independently in any meeting or engage in any substantive conversation with any Governmental Authority in respect of any third-party indebtedness filing, investigation or obligation that will not be paidother inquiry without giving the other Parties prior notice of such meeting or conversation and, dischargedto the extent permitted by applicable Law, without giving the other Parties the opportunity to attend or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth participate (whether by telephone or in subsection 5.12(c)person) in any such meeting with such Governmental Authority.
(iiic) In Notwithstanding anything to the event that contrary in this Agreement, in connection with obtaining any Party shall fail approval or consent from any Person (other than any Governmental Authority) with respect to obtain the Merger and the other transactions contemplated by this Agreement, none of the Parties or any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and of their respective subsidiaries and their respective businessesRepresentatives shall be obligated to pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, resulting make any accommodation or commitment or incur any liability or other obligation to such Person. Subject to the immediately foregoing sentence, the Parties shall cooperate with respect to reasonable accommodations that could reasonably may be expected to result after the Effective Time, from the failure requested or appropriate to obtain such consentconsents.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matter.
Appears in 2 contracts
Samples: Merger Agreement (Cim Real Estate Finance Trust, Inc.), Merger Agreement (Cole Office & Industrial REIT (CCIT III), Inc.)
Appropriate Action; Consents; Filings. Section 5.5.1 The Company and Parent shall use their reasonable best efforts to (a) OTE and TetriDyn shall use, and shall cause each of their respective subsidiaries to use, all reasonable efforts to: (iA) take, or cause to be taken, all appropriate action, action and do, or cause to be done, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise to consummate and make effective the transactions contemplated by this Agreement; Agreement and each Ancillary Agreement as promptly as practicable, (iiB) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, authorizations or orders required or advisable to be obtained or made by OTE Parent, the Purchaser or TetriDyn the Company or any subsidiary of their respective subsidiaries, or to avoid any action or proceeding by any Governmental Entity (including, without limitation, those in connection with the HSR Act), in connection with the authorization, execution, execution and delivery of this Agreement and each Ancillary Agreement and the consummation of the transactions contemplated herebyherein and therein, including without limitation the Offer and the Merger; , and (iiiC) make all necessary filings, and thereafter make any other required submissions, respecting with respect to this Agreement and each Ancillary Agreement, the Offer and the Merger required under: under (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; , (2) the HSR Act and (23) any other applicable Law; provided thatprovided, OTE that the Company and TetriDyn Parent shall cooperate with each other in connection with (X) preparing and filing of the Offer Documents, the Schedule 14D-9, Proxy Statement and any Other Filings, (Y) determining whether any action by or in respect of, or filing with, any Governmental Entity is required, in connection with the consummation of the Offer or the Merger and (Z) seeking any such actions, consents, approvals or waivers or making of all any such filings, including providing copies of all such filed documents to the other Party non-filing party and its advisers advisors prior to such filings filing and, if requested, shall accept accepting all reasonable additions, deletions, deletions or changes suggested in connection therewith; and provided, further, that nothing in this Section 5.5.1 shall require Parent or the Company to agree to (I) the imposition of material conditions, (II) the requirement of divestiture of material assets or property or (III) the requirement of expenditure of money by Parent or the Company to a third party in exchange for any such consent. OTE The Company and TetriDyn Parent shall furnish to each other all information required for any application or other filing to be made pursuant to under the rules and regulations of any applicable Law (including all information) in connection with the transactions contemplated by this Agreement and each Ancillary Agreement.
Section 5.5.2 The Company and Parent shall give (b) OTE and TetriDyn agree to cooperate respecting, to or shall cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanentgive) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use use, and cause their respective subsidiaries to use use, all reasonable efforts to obtain any third-party consents: consent to a Company Material Contract, (1A) necessary, proper, proper or advisable to consummate the transactions contemplated by in this Agreement and each Ancillary Agreement; , (2B) otherwise required under any contractsto be disclosed in the Company Disclosure Schedule or the Parent Disclosure Schedule, licensesas applicable, leases, or other agreements in connection with the consummation of the transactions contemplated hereby; or (3C) required to prevent a material adverse effect affecting either of their respective business and operations from occurring prior to the Effective Time or a TetriDyn Company Material Adverse Effect from occurring prior to or after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or (D) otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth referenced in subsection 5.12(c).
paragraph (iiiI) of Annex I. In the event that any Party either party shall fail to obtain any third-third party consent described in subsection (c)(ii) abovethe first sentence of this Section 5.5.2, such Party party shall use all reasonable efforts, and shall take any such actions reasonably requested by any the other Partyparty hereto, to limit the minimize any adverse effect upon OTE the Company and TetriDynParent, their respective Subsidiaries, and their respective subsidiaries and their respective businessesbusinesses resulting, resulting or that which could reasonably be expected to result after the consummation of the Offer or the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn Section 5.5.3 From the date of this Agreement until the Effective Time, the Company shall promptly notify the other of: (i) any material change Parent in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) writing of any pending or, to the knowledge of the Company, threatened action, suit, arbitration or other proceeding or investigation by any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it Entity or any of its subsidiaries; other person (A) challenging or seeking material damages in connection with the Offer, the Merger or any other transaction contemplated by this Agreement or any Ancillary Agreement or (ivB) any event seeking to restrain or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at prohibit the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations consummation of the subject entityOffer, if in existence on the date hereofMerger or any other transaction contemplated by this Agreement or any Ancillary Agreement or otherwise limit the right of Parent, the Purchaser or for which the legal fees and other costs any Parent Subsidiary to TetriDyn might reasonably be expected to exceed $10,000 over the life own or operate all or any portion of the matter businesses or to OTE (assets of the Company or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matterCompany Subsidiary.
Appears in 2 contracts
Samples: Merger Agreement (Mentor Graphics Corp), Merger Agreement (Innoveda Inc)
Appropriate Action; Consents; Filings. Section 5.8.1 Each of the Company and Parent shall use reasonable best efforts to (a) OTE and TetriDyn shall use, and shall cause each of their respective subsidiaries to use, all reasonable efforts to: (iA) take, or cause to be taken, all appropriate action, and do, or cause to be done, all things necessary, proper, proper or advisable under any applicable Laws Law or otherwise to consummate and make effective the Merger and the other transactions contemplated by this Agreement; Agreement as promptly as practicable, (iiB) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, authorizations or orders required to be obtained or made by OTE Parent or TetriDyn the Company or any subsidiary of their respective Subsidiaries, or to avoid any action or proceeding by any Governmental Entity (including, without limitation, those in connection with the HSR Act), in connection with the authorization, execution, execution and delivery of this Agreement and the consummation of the Merger and the other transactions contemplated herebyherein, including the Merger; (iiiC) make all necessary filingsor cause to be made the applications or filings required to be made by Parent or the Company or any of their respective Subsidiaries under or with respect to the HSR Act, and thereafter make the Other Regulatory Approvals or any other required submissionsLaws in connection with the authorization, respecting execution and delivery of this Agreement and the consummation of the Merger required under: and the other transactions contemplated herein, and to pay any fees due of it in connection with such applications or filings, as promptly as is reasonably practicable, and in any event within ten Business Days after the date hereof, (D) comply at the earliest practicable date with any request under or with respect to the HSR Act, the Other Regulatory Approvals and any such other Laws for additional information, documents or other materials received by Parent or the Company or any of their respective Subsidiaries from the Federal Trade Commission or the Department of Justice or any other Governmental Entity in connection with such applications or filings or the Merger and the other transactions contemplated by this Agreement and (E) coordinate and cooperate with, and give due consideration to all reasonable additions, deletions or changes suggested in connection with, making (1) any filing under or with respect to the Securities Act and the Exchange HSR Act, and the rules and regulations thereunderOther Regulatory Approvals or any such other Laws, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other in connection with the making of all such filings, including providing copies conferences or other submissions related to resolving any investigation or other inquiry by any such Governmental Entity. Each of all such documents the Company and Parent shall, and shall cause their respective Affiliates to, furnish to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish party all information required necessary for any such application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues . Each of administrative the Company and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including Parent shall promptly inform the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting other of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effectcommunication with, and TetriDyn any proposed understanding, undertaking or agreement with, any Governmental Entity regarding any such application or filing. If a party hereto intends to independently participate in any meeting with any Governmental Entity in respect of any such filings, investigation or other inquiry, then such party shall not be required give the other party reasonable prior notice of such meeting. The parties shall coordinate and cooperate with one another in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, opinions and proposals made or submitted by or on behalf of any party in connection with all meetings, actions and proceedings under or relating to take any action that would such application or could reasonably be expected to have a TetriDyn Material Adverse Effectfiling.
(i) OTE Section 5.8.2 The Company and TetriDyn Parent shall give (or shall cause their respective Subsidiaries to give) any notices to third parties, and use use, and cause their respective subsidiaries Subsidiaries to use all use, commercially reasonable efforts to obtain any third-third party consents: , (1A) necessary, proper, proper or advisable to consummate the transactions contemplated by in this Agreement; , (2B) otherwise required under any contractsto be disclosed in the Company Disclosure Schedule or the Parent Disclosure Schedule, licenses, leasesas applicable, or other agreements in connection with the consummation of the transactions contemplated hereby; or (3C) required to prevent a material adverse effect affecting either of their respective business and operations Company Material Adverse Effect from occurring prior to or after the Effective Time or a TetriDyn Parent Material Adverse Effect from occurring after the Effective Time.
(ii) OTE ; provided, however, that the Company and TetriDyn Parent shall use coordinate and cause their respective subsidiaries cooperate in determining whether any actions, consents, approvals or waivers are required to use all reasonable efforts be obtained from parties to obtain release any Company Contracts in connection with consummation of the Merger and seeking any guarantees by any owner of TetriDyn of any third-party indebtedness such actions, consents, approvals or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) waivers. In the event that any Party either party shall fail to obtain any third-third party consent described in subsection (c)(ii) abovethe first sentence of this Section 5.8.2, such Party party shall use all commercially reasonable efforts, and shall take any such actions reasonably requested by any the other Partyparty hereto, to limit the mitigate any adverse effect upon OTE the Company and TetriDynParent, their respective Subsidiaries, and their respective subsidiaries and their respective businessesbusinesses resulting, resulting or that which could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE Section 5.8.3 From the date of this Agreement until the Effective Time, each of Parent and TetriDyn the Company shall promptly notify the other of: in writing of any pending or, to the knowledge of Parent or the Company (ias the case may be), threatened action, suit, arbitration or other proceeding or investigation by any Governmental Entity or any other Person (A) challenging or seeking material damages in connection with the Merger or the other transactions contemplated by this Agreement or (B) seeking to restrain or prohibit the consummation of the Merger or otherwise limit in any material change in its current respect the right of Parent or future businessany Parent Subsidiary to own or operate all or any portion of the businesses or assets of the Company or any Company Subsidiary.
Section 5.8.4 Each of the Company and Parent shall, assetsand shall cause their respective controlled Affiliates to, liabilitiesuse their reasonable best efforts to (A) cause the expiration of the notice periods under or with respect to the HSR Act, financial condition, or results of operations; (ii) the Other Regulatory Approvals and any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or other Laws with respect to the transactions contemplated hereby; by this Agreement as promptly as is reasonably practicable after the execution of this Agreement and (iiiB) resolve such objections, if any, as may be asserted by any Governmental Entity with respect to the institution Merger or other transactions contemplated by this Agreement. In connection therewith, if any administrative or judicial action or proceeding is instituted (or threatened to be instituted) challenging the threat transaction contemplated by this Agreement as violative of material litigation involving it any Law, each of the Company and Parent shall, and shall cause their respective affiliates to, cooperate and use their reasonable best efforts to contest and resist, except insofar as the Company and Parent may otherwise agree, any such action or proceeding, including any action or proceeding that seeks a temporary restraining order or preliminary injunction that would prohibit, prevent or restrict consummation of the Merger or other transactions contemplated by this Agreement. In furtherance and not in limitation of the foregoing, Parent shall cooperate in good faith with all Governmental Entities and, subject to Section 5.10, undertake promptly any and all actions required to lawfully complete the Merger and the other transactions contemplated by this Agreement.
Section 5.8.5 Each of the Company and the Company Subsidiaries will, and will cause each of its subsidiaries; or (iv) any event or condition that might reasonably be expected Representatives to, use its reasonable efforts, subject to cause any applicable Laws, to cooperate with and assist Parent and Merger Sub in connection with planning the integration of its representations, warranties, covenants, or agreements set forth herein not to be true the Company and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to Company Subsidiaries and their respective employees with the business operations of Parent and its Subsidiaries.
Section 5.8.6 Nothing contained in this Agreement shall give Parent or Merger Sub, directly or indirectly, the right to control or direct the operations of the subject entity, if in existence on Company prior to the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life consummation of the matter or Merger. Prior to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life consummation of the matterMerger, the Company shall exercise, subject and consistent with the terms and conditions of this Agreement, including Section 5.2, complete unilateral control and supervision over its business operations.
Appears in 2 contracts
Samples: Merger Agreement (Coventry Health Care Inc), Merger Agreement (First Health Group Corp)
Appropriate Action; Consents; Filings. (a) OTE Upon the terms and TetriDyn subject to the conditions set forth in this Agreement, each of the Company and Parent shall use, and shall cause each of the Company Subsidiaries and Parent Subsidiaries, respectively, and their respective subsidiaries Affiliates, to use, all use its commercially reasonable efforts to: (i) to take, or cause to be taken, all appropriate actionactions, and to do, or cause to be done, and to assist and cooperate with the other Party in doing, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise pursuant to any contract or agreement to consummate and make effective effective, as promptly as practicable, the transactions contemplated by this Agreement; (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, or orders required to be obtained or made by OTE or TetriDyn or any subsidiary in connection with the authorization, execution, and delivery of this Agreement Mergers and the consummation of the transactions contemplated hereby, including the Merger; (iii) make all necessary filings, and thereafter make any other required submissions, respecting this Agreement and the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing (i) the taking of all available avenues actions necessary to cause the conditions to Closing set forth in Article 8 to be satisfied, (ii) the obtaining of administrative all necessary or advisable actions or nonactions, waivers, consents and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets approvals from Governmental Authorities or the withdrawal from doing business other Persons necessary in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit connection with the consummation of the Merger Mergers and the other transactions contemplated by this Agreement and the making of all necessary or advisable registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be required necessary or advisable to avoid, lift, vacateobtain an approval or waiver from, or reverse to avoid an action or proceeding by, any legislative Governmental Authority or other Persons necessary in connection with the consummation of the Mergers and the other transactions contemplated by this Agreement, (iii) subject to Section 7.7(c), the defending of any lawsuits or other legal proceedings, whether judicial action that would otherwise cause any condition to Closing not to be satisfied; providedor administrative, howeverchallenging this Agreement or the consummation of the Mergers or the other transactions contemplated by this Agreement, that in no event shall OTE be required to take any action that would or could reasonably be expected including seeking to have an OTE Material Adverse Effectany stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed, and TetriDyn shall not be required (iv) the execution and delivery of any additional instruments necessary or advisable to take any action that would or could reasonably be expected consummate the Mergers and the other transactions contemplated by this Agreement and to have a TetriDyn Material Adverse Effectfully carry out the purposes of this Agreement.
(ib) OTE In connection with and TetriDyn without limiting the foregoing Section 7.6(a), Section 7.15 or Section 3.10, each of Parent and the Company shall (or shall cause Parent Subsidiaries or the Company Subsidiaries, respectively, to) use its commercially reasonable efforts to give any notices to third parties, and use each of Parent and the Company shall use, and cause each of their respective subsidiaries Affiliates to use all use, its commercially reasonable efforts to obtain any third-third party consents: (1consents not covered by Section 7.6(a) that are necessary, proper, proper or advisable to consummate the Mergers and the other transactions contemplated by this Agreement; (2) otherwise required under any contracts. Each of the Parties hereto will and shall cause their respective Affiliates to, licenses, leases, or furnish to the other agreements such necessary information and reasonable assistance as the other may reasonably request in connection with the consummation preparation of any required applications, notices, registrations and requests as may be required or advisable to be filed with any Governmental Authority and will cooperate in responding to any inquiry from a Governmental Authority, including promptly informing the other party of such inquiry, consulting in advance before making any presentations or submissions to a Governmental Authority, and supplying each other with copies of all material correspondence, filings or communications between either Party and any Governmental Authority with respect to this Agreement. To the extent reasonably practicable and permitted, the Parties or their Representatives shall have the right to review in advance and each of the Parties will consult the others on, all the information relating to the other and each of their Affiliates that appears in any filing made with, or written materials submitted to, any Governmental Authority in connection with the Mergers and the other transactions contemplated hereby; or (3) required to prevent a material adverse effect affecting either of their respective by this Agreement, except that confidential competitively sensitive business information may be redacted from such exchanges. The Parties may, as they deem advisable and operations from occurring prior necessary, designate any sensitive materials provided to the Effective Time or a TetriDyn Material Adverse Effect from occurring after other under this Section 7.6 as “outside counsel only.” Such materials and the Effective Time.
(ii) OTE information contained therein shall be given only to outside counsel of the recipient and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paiddisclosed by such outside counsel to employees, dischargedofficers, directors or otherwise satisfied at trustees of the Effective Timerecipient without the advance written consent of the Party providing such materials. To the extent reasonably practicable, excluding neither the obligations Company nor Parent shall, nor shall they permit their respective Representatives to, participate independently in any meeting or engage in any substantive conversation with any Governmental Authority in respect of any filing, investigation or other inquiry without giving the other Party prior notice of such meeting or conversation and, to SICOG and EIDC as set forth the extent permitted by applicable Law, without giving the other party the opportunity to attend or participate (whether by telephone or in subsection 5.12(c).
(iiiperson) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain meeting with such consentGovernmental Authority.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matter.
Appears in 2 contracts
Samples: Merger Agreement (Kimco Realty Corp), Merger Agreement (RPT Realty)
Appropriate Action; Consents; Filings. (a) OTE Upon the terms and TetriDyn subject to the conditions set forth in this Agreement, each of the REIT I Parties and each of the REIT II Parties shall use, and shall cause each of the other REIT I Subsidiaries and the other REIT II Subsidiaries, respectively, and their respective subsidiaries Affiliates to use, all use its reasonable best efforts to: (i) to take, or cause to be taken, all appropriate actionactions, and to do, or cause to be done, and to assist and cooperate with the other party in doing, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise pursuant to any 72
(b) In connection with and without limiting the foregoing Section 7.5(a), each of the Parties shall give (or shall cause their respective Affiliates to give) any notices to third parties, and each of the Parties shall use, and cause each of their respective Affiliates to use, its reasonable best efforts to obtain any third party consents that are necessary, proper or advisable to consummate the Mergers and make effective the other transactions contemplated by this Agreement; (ii) obtain from any Governmental Entities any consents. Each of the Parties will, licensesand shall cause their respective Affiliates to, permits, waivers, approvals, authorizations, or orders required furnish to be obtained or made by OTE or TetriDyn or any subsidiary the other such necessary information and reasonable assistance as the other may request in connection with the authorizationpreparation of any required applications, executionnotices, registrations and requests as may be required or advisable to be filed with any Governmental Authority and will cooperate in responding to any inquiry from a Governmental Authority, including promptly informing the other party of such inquiry, consulting in advance before making any presentations or submissions to a Governmental Authority, and delivery supplying each other with copies of all material correspondence, filings or communications between either party and any Governmental Authority with respect to this Agreement Agreement. To the extent reasonably practicable, the Parties or their Representatives shall have the right to review in advance and the consummation each of the transactions contemplated herebyParties will consult the others on, including all the Merger; (iii) make all necessary filingsinformation relating to the other and each of their Affiliates that appears in any filing made with, and thereafter make or written materials submitted to, any other required submissions, respecting this Agreement and the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other Governmental Authority in connection with the making of all such filings, including providing copies of all such documents to Mergers and the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues except that confidential competitively sensitive business information may be redacted from such exchanges. To the extent reasonably practicable, neither Party shall, nor shall they permit their respective Representatives to, participate independently in any meeting or engage in any substantive conversation with any Governmental Authority in respect of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actionsany filing, including investigation or other inquiry without giving the disposition other Party prior notice of assets such meeting or the withdrawal from doing business in particular jurisdictionsconversation and, required by regulatory authorities as a condition to the granting of extent permitted by applicable Law, without giving the other Party the opportunity to attend or participate (whether by telephone or in person) in any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.such meeting with such Governmental Authority. 73
(ic) OTE Notwithstanding anything to the contrary in this Agreement, in connection with obtaining any approval or consent from any Person (other than any Governmental Authority) with respect to the Mergers and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable to consummate the other transactions contemplated by this Agreement; (2) otherwise required under any contracts, licenses, leases, or other agreements in connection with the consummation none of the transactions contemplated hereby; Parties or (3) required to prevent a material adverse effect affecting either any of their respective business and operations from occurring prior Representatives shall be obligated to pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Person. Subject to the Effective Time immediately foregoing sentence, the Parties shall cooperate with respect to reasonable accommodations that may be requested or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure appropriate to obtain such consentconsents.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matter.
Appears in 2 contracts
Samples: Merger Agreement (Griffin Capital Essential Asset REIT, Inc.), Merger Agreement (Griffin Capital Essential Asset REIT II, Inc.)
Appropriate Action; Consents; Filings. (a) OTE and TetriDyn shall useSubject to the terms of this Agreement, and shall cause each of their the Parties will use its respective subsidiaries to use, all reasonable best efforts to: (i) take, or cause to be taken, all appropriate action, and do, or cause to be done, all things necessary, proper, or advisable under applicable Laws or otherwise to consummate and make effective the transactions contemplated hereby and to cause the conditions of the Merger set forth in Article VI to be satisfied, including (i) the obtaining of all necessary actions or non-actions, consents and approvals from Governmental Entities or other Persons necessary in connection with the consummation of the transactions contemplated by this Agreement and the making of all necessary registrations and filings (including filings with Governmental Entities, if any) and the taking of all reasonable steps as may be necessary to obtain an approval from, or to avoid an action or proceeding by, any Governmental Entity or other Persons necessary in connection with the consummation of the transactions contemplated by this Agreement; (ii) obtain from the defending of any Governmental Entities any consentslawsuits or other legal proceedings, licenseswhether judicial or administrative, permits, waivers, approvals, authorizations, or orders required to be obtained or made by OTE or TetriDyn or any subsidiary in connection with the authorization, execution, and delivery of challenging this Agreement and or the consummation of the transactions contemplated herebyperformed or consummated by such Party in accordance with the terms of this Agreement, including the Mergerseeking to have any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed; and (iii) make all the execution and delivery of any additional instruments necessary filings, to consummate the Merger and thereafter make any other required submissions, respecting transactions to be performed or consummated by such Party in accordance with the terms of this Agreement and to fully carry out the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other in connection with the making purposes of all such filings, including providing copies of all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation Each of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition Parties will furnish to the granting of any approvals required in order to permit others such necessary information and reasonable assistance as the consummation of the Merger or as others may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable to consummate the transactions contemplated by this Agreement; (2) otherwise required under any contracts, licenses, leases, or other agreements request in connection with the consummation of the transactions contemplated hereby; or (3) required to prevent a material adverse effect affecting either of their respective business and operations from occurring prior to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release preparation of any guarantees by required governmental filings or submissions and will cooperate in responding to any owner inquiry from a Governmental Entity, including immediately informing the other Parties of TetriDyn such inquiry, consulting in advance before making any presentations or submissions to a Governmental Entity, and supplying each other with copies of any third-party indebtedness all material correspondence, filings or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that communications between any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected Entity with respect to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matterthis Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Us 1 Industries Inc), Merger Agreement (Us 1 Industries Inc)
Appropriate Action; Consents; Filings. (a) OTE Upon the terms and TetriDyn subject to the conditions set forth in this Agreement, each of Company and Parent shall use, and shall cause each of the Company Subsidiaries and the Parent Subsidiaries, respectively, and their respective subsidiaries Affiliates, to use, all use its reasonable best efforts to: (i) to take, or cause to be taken, all appropriate actionactions, and to do, or cause to be done, and to assist and cooperate with the other Party in doing, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise pursuant to any contract or agreement to consummate and make effective effective, as promptly as practicable, the transactions contemplated by this Agreement; (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, or orders required to be obtained or made by OTE or TetriDyn or any subsidiary in connection with the authorization, execution, and delivery of this Agreement Merger and the consummation of the transactions contemplated hereby, including the Merger; (iii) make all necessary filings, and thereafter make any other required submissions, respecting this Agreement and the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including (i) the taking of all actions necessary to cause the conditions to Closing set forth in Article 8 to be satisfied, (ii) the obtaining of all necessary or advisable actions or nonactions, waivers, consents and approvals from Governmental Authorities or other Persons necessary in connection with the consummation of the Merger and the other transactions contemplated by vigorously pursuing this Agreement and the making of all available avenues necessary or advisable registrations and filings (including filings with Governmental Authorities, if any) and the taking of administrative all reasonable steps as may be necessary or advisable to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authority or other Persons necessary in connection with the consummation of the Merger and judicial appeal and legislative action. OTE and TetriDyn also agree the other transactions contemplated by this Agreement, (iii) subject to take all actionsSection 7.8(c), including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting defending of any approvals required in order to permit lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger or as may be required to avoidthe other transactions contemplated by this Agreement, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected including seeking to have an OTE Material Adverse Effectany stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed, and TetriDyn shall not be required (iv) the execution and delivery of any additional instruments necessary or advisable to take any action that would or could reasonably be expected consummate the Merger and the other transactions contemplated by this Agreement and to have a TetriDyn Material Adverse Effectfully carry out the purposes of this Agreement.
(ib) OTE In connection with and TetriDyn without limiting the foregoing Section 7.7(a), each of Parent and Company shall (or shall cause the Parent Subsidiaries or the Company Subsidiaries, respectively, to) use its reasonable best efforts to give any notices to third parties, and use each of Parent and Company shall use, and cause each of their respective subsidiaries Affiliates to use all use, its reasonable best efforts to obtain any third-third party consents: (1consents not covered by Section 7.7(a) that are necessary, proper, proper or advisable to consummate the Merger and the other transactions contemplated by this Agreement; (2) otherwise required under any contracts. Each of the Parties hereto will and shall cause their respective Affiliates to, licenses, leases, or furnish to the other agreements such necessary information and reasonable assistance as the other may request in connection with the consummation preparation of any required governmental filings or submissions and will cooperate in responding to any inquiry from a Governmental Authority, including promptly informing the other party of such inquiry, consulting in advance before making any presentations or submissions to a Governmental Authority, and supplying each other with copies of all material correspondence, filings or communications between either Party and any Governmental Authority with respect to this Agreement. To the extent reasonably practicable and permitted, the Parties or their Representatives shall have the right to review in advance and each of the Parties will consult the others on, all the information relating to the other and each of their Affiliates that appears in any filing made with, or written materials submitted to, any Governmental Authority in connection with the Merger and the other transactions contemplated hereby; or (3) required to prevent a material adverse effect affecting either of their respective by this Agreement, except that confidential competitively sensitive business information may be redacted from such exchanges. The Parties may, as they deem advisable and operations from occurring prior necessary, designate any sensitive materials provided to the Effective Time or a TetriDyn Material Adverse Effect from occurring after other under this Section 7.7 as “outside counsel only.” Such materials and the Effective Time.
(ii) OTE information contained therein shall be given only to outside counsel of the recipient and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paiddisclosed by such outside counsel to employees, dischargedofficers, directors or otherwise satisfied at trustees of the Effective Timerecipient without the advance written consent of the Party providing such materials. To the extent reasonably practicable, excluding neither Company nor Parent shall, nor shall they permit their respective Representatives to, participate independently in any meeting or engage in any substantive conversation with any Governmental Authority in respect of any filing, investigation or other inquiry without giving the obligations other Party prior notice of such meeting or conversation and, to SICOG and EIDC as set forth the extent permitted by applicable Law, without giving the other party the opportunity to attend or participate (whether by telephone or in subsection 5.12(c).
(iiiperson) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain meeting with such consentGovernmental Authority.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matter.
Appears in 2 contracts
Samples: Merger Agreement (Inland Diversified Real Estate Trust, Inc.), Merger Agreement (Kite Realty Group Trust)
Appropriate Action; Consents; Filings. (a) OTE The Company and TetriDyn shall use, and shall cause the Acquiror will each of their respective subsidiaries to use, use all reasonable efforts to: (i) to take, or to cause to be taken, all appropriate action, and to do, or to cause to be done, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise to consummate and make effective the transactions contemplated by this Agreement; , (ii) to obtain from any Governmental Entities Authorities any consents, licenses, permits, waivers, approvals, authorizations, Permits or orders Orders required to be obtained by the Acquiror or made by OTE or TetriDyn the Company or any subsidiary of their Subsidiaries in connection with the authorization, execution, delivery and delivery performance of this Agreement and the consummation of the transactions contemplated hereby, including the Merger; , (iii) to make all necessary filings, and thereafter make any other required submissions, respecting with respect to this Agreement and the Merger required under: under (1A) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; , (B) the HSR Act, and (2C) any other applicable Law; provided that, OTE that the Acquiror and TetriDyn shall the Company will cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party nonfiling party and its advisers advisors prior to such filings and, if requested, shall will accept all reasonable additions, deletions, deletions or changes suggested in connection therewith. OTE The Company and TetriDyn shall the Acquiror will furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law or any applicable Regulations of any Governmental Authority (including all information required to be included in the Proxy Statement or the Registration Statement) in connection with the transactions contemplated by this Agreement.
(b) OTE Each of the Company and TetriDyn the Acquiror will give prompt notice to the other of (i) any notice or other communication from any Person alleging that the consent of such Person is or may be required in connection with the Merger, (ii) any notice or other communication from any Governmental Authority in connection with the Merger, (iii) any actions, suits, claims, investigations or proceedings commenced or threatened in writing against, relating to or involving or otherwise affecting the Company, the Acquiror or their respective Subsidiaries that relate to the consummation of the Merger; (iv) the occurrence of a default or event that, with notice or lapse of time or both, will become a default under any Material Contract of the Acquiror or Material Contract of the Company; and (v) any change that is reasonably likely to have a Material Adverse Effect on the Company or the Acquiror or is likely to delay or impede the ability of either the Acquiror or the Company to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein.
(c) The Acquiror Companies and the Company agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.any
(i) OTE Each of the Company and TetriDyn shall Acquiror will give (or will cause their respective Subsidiaries to give) any notices to third partiesPersons, and use use, and cause their respective subsidiaries Subsidiaries to use use, all reasonable efforts to obtain any third-party consents: consents from third Persons (1A) necessary, proper, proper or advisable to consummate the transactions contemplated by this Agreement; , (2B) otherwise required under any contracts, licenses, leases, leases or other agreements in connection with the consummation of the transactions contemplated hereby; hereby or (3C) required to prevent a material adverse effect affecting either of their respective business and operations Material Adverse Effect on the Company or the Acquiror from occurring prior to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of If any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent from a third Person described in subsection (c)(iiSubsection 7.3(d)(i) above, such Party shall party will use all reasonable efforts, and shall will take any such actions reasonably requested by any the other Partyparties, to limit the adverse effect upon OTE the Company and TetriDynAcquiror, their respective Subsidiaries, and their respective subsidiaries and their respective businessesbusinesses resulting, resulting or that could reasonably be expected to which would result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matter.
Appears in 2 contracts
Samples: Merger Agreement (Unitrode Corp), Merger Agreement (Unitrode Corp)
Appropriate Action; Consents; Filings. (a) OTE Subject to the other terms and TetriDyn shall useconditions of this Agreement, and shall cause each of the parties hereto will use their respective subsidiaries to use, all reasonable best efforts to: (i) take, or cause to be taken, all appropriate action, and do, or cause to be done, all things necessary, proper, or advisable under applicable Laws or otherwise to consummate and make effective the transactions contemplated by this Agreement; hereby, including (i) subject to Section 5.4(b), using reasonable best efforts to cause, in the case of the Company, the conditions set forth in Section 6.1 and Section 6.2 to be satisfied and, in the case of Parent, the conditions set forth in Section 6.1 and Section 6.3 to be satisfied, (ii) obtain from any Governmental Entities any consentssubject to Section 5.4(b), licenses, permits, waivers, approvals, authorizations, or orders required to be obtained or made by OTE or TetriDyn or any subsidiary in connection with the authorization, execution, and delivery of this Agreement and the consummation of the transactions contemplated hereby, including the Merger; (iii) make all necessary filings, and thereafter make any other required submissions, respecting this Agreement and the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all using reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable best efforts to obtain any third-party consents: (1) necessaryall necessary actions or nonactions, proper, or advisable to consummate the transactions contemplated by this Agreement; (2) otherwise required under any contracts, licenses, leases, consents and approvals from Governmental Authorities or other agreements persons necessary in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, and making all necessary registrations and filings (including filings with Governmental Authorities, if any) and using reasonable best efforts to obtain an approval from, or to avoid an action or proceeding by, any Governmental Authority or other persons necessary in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, (iii) defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions, including the Merger, performed or consummated by such party in accordance with the terms of this Agreement, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed, and (iv) the execution and delivery of any additional instruments necessary to consummate the Merger and any other transactions to be performed or consummated by such party in accordance with the terms of this Agreement and to carry out fully the purposes of this Agreement. Each of the parties hereto shall (A) as promptly as practicable (and, in any event, within ten (10) Business Days) following the date hereof, make its respective filings under the HSR Act, and thereafter (I) make any other required submission under the HSR Act with respect to the transactions contemplated hereby, including the Merger and (II) subject to Section 5.4(b) take all other actions necessary, proper or advisable to cause the expiration or termination or the applicable waiting periods under the HSR Act as soon as possible and (B) make any filings, notifications or reports required under any other applicable competition, merger control, antitrust or similar Law of any jurisdiction with respect to the transactions contemplated hereby as promptly as practicable. Parent shall pay all filing fees required under the HSR Act by the Company and Parent.
(b) In furtherance and not in limitation of the provisions of Section 5.4(a), Parent and Merger Sub shall, and shall cause their affiliates to, use reasonable best efforts to avoid, eliminate or resolve each and every impediment and obtain all clearances, consents, approvals and waivers under any Antitrust Laws that may be required by any Governmental Authority, in each case, with competent jurisdiction, so as to enable the parties to close the transactions contemplated by this Agreement, including the Merger, as promptly as practicable (and, in any event, no later than five (5) Business Days prior to the Termination Date), including (i) proposing, negotiating, offering to commit and effect (and if such Merger is consummated, committing to and effecting), by Order, consent decree, hold separate order, trust, or otherwise, the sale, divestiture, license, disposition or hold separate of such assets or businesses of Parent, Merger Sub, the Company or the Surviving Corporation, or their respective subsidiaries or affiliates, or otherwise offering to take or offering to commit to take any action (including any action that limits its freedom of action, ownership or control with respect to, or its ability to retain or hold, any of the businesses, assets, product lines, properties or services of Parent, Merger Sub, the Company or the Surviving Corporation, or their respective subsidiaries or affiliates) to the extent legally permissible, and if the Merger is consummated, taking or committing to take such action; (ii) terminating, relinquishing, modifying or waiving existing relationships, ventures, contractual rights, obligations or other arrangements of Parent, Merger Sub, the Company or the Surviving Corporation, or their respective subsidiaries or affiliates; (3iii) creating any relationships, ventures, contractual rights, obligations or other arrangements of Parent, Merger Sub, the Company or the Surviving Corporation, or their respective subsidiaries or affiliates; and (iv) entering or offering to enter into agreements and stipulating to the entry of an Order or filing appropriate applications with any Governmental Authority in connection with any of the actions contemplated by the foregoing clauses (i) through (iii) (any matter referenced in the foregoing clause or any action taken pursuant to this Section 5.4, a “Regulatory Divestiture”) (provided, that no party shall be obligated to take any such action unless the taking of such action is expressly conditioned upon the consummation of the Merger and the other transactions contemplated hereby), in each case, as may be necessary, required or advisable in order to obtain clearance under the HSR Act or other Antitrust Laws, to avoid the entry of, or to effect the dissolution of or to vacate or lift, any Order (whether temporary, preliminary or permanent) that would otherwise have the effect of restraining, preventing or delaying the consummation of the Merger or the other transactions contemplated hereby, or to avoid the commencement of any action or proceeding that seeks to prohibit the Merger or any other transaction contemplated by this Agreement; provided, that in no event shall Parent be required to prevent take or commit to any Regulatory Divestiture if such action would or would reasonably be expected to have a material adverse effect affecting either on the assets, business, results of operations or financial condition of Parent, the Surviving Corporation and their respective business and operations from occurring prior to the Effective Time or subsidiaries taken as a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) whole. In the event that any Governmental Authority requires the divestiture or the holding separate by Parent, Merger Sub or any of their affiliates of any assets or businesses, no adjustment shall be made to the Merger Consideration and Parent, Merger Sub and their affiliates shall be required to divest such assets and businesses, or hold them separate, as the case may be, following the Merger Closing.
(c) To the extent not prohibited by applicable Law, each of Parent, Merger Sub and the Company shall (i) promptly notify and furnish the other Party shall fail to obtain copies of any third-party consent described correspondence or communication (including, in subsection (c)(iithe case of any substantive oral correspondence or communication, a summary thereof) abovebetween it or any of its affiliates or Affiliated Entities or any of their respective Representatives, on the one hand, and any Governmental Authority, on the other hand, or any filing such Party submits to any Governmental Authority except for so-called 4(c) documents and other documents customarily withheld, (ii) consult with and permit the other party to review in advance any substantive written or oral communication or correspondence by such party to any Governmental Authority and (iii) consider in good faith the views of such other party in connection with any proposed filing and any substantive written or oral communication or correspondence to any Governmental Body, in each case, to the extent relating to the subject matter of this Section 5.4 or the transactions contemplated by this Agreement. Neither Parent, nor Merger Sub nor the Company shall use all reasonable effortsagree to, and shall take or permit any such actions reasonably requested by of its affiliates, Affiliated Entities or Representatives to, participate in any substantive meeting or discussion with any Governmental Authority in respect of any filings, investigation, inquiry or any other Partymatter contemplated by this Section 5.4 or any transaction contemplated by this Agreement unless it consults with the other Party in advance and, to limit the adverse effect upon OTE extent permitted by such Governmental Authority, gives the other Party the opportunity to attend and TetriDyn, and their respective subsidiaries and their respective businesses, resulting participate in such meeting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consentdiscussion.
(d) OTE Each of Parent, Merger Sub and TetriDyn the Company shall promptly notify the other of: give (ior shall cause its respective subsidiaries to give) any material change notices to third parties, and Parent and Merger Sub shall use their respective reasonable best efforts, and the Company shall use its reasonable best efforts to cooperate with Parent in its current efforts, to obtain any Third Party consents not covered by Section 5.4(a) and Section 5.4(b) that are necessary, proper or future businessadvisable to consummate the Merger. Notwithstanding the foregoing, assetsobtaining any Third Party consents pursuant to this Section 5.4(d) shall not, liabilitiesin and of itself, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or considered a condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations obligations of the subject entity, if in existence on Parent and Merger Sub to consummate the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matterMerger.
Appears in 2 contracts
Samples: Merger Agreement (IPC Healthcare, Inc.), Merger Agreement (Team Health Holdings Inc.)
Appropriate Action; Consents; Filings. (a) OTE Upon the terms and TetriDyn shall usesubject to the conditions set forth in this Agreement (including Section 7.3), each of the Company and the Park Parties shall, and shall cause each of the Company Subsidiaries and the other Park Subsidiaries, respectively, and their respective subsidiaries Affiliates to, use its reasonable best efforts to use, all reasonable efforts to: (i) take, or cause to be taken, all appropriate actionactions, and to do, or cause to be done, all things necessary, proper, or advisable under applicable Laws or otherwise and to consummate assist and make effective the transactions contemplated by this Agreement; (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, or orders required to be obtained or made by OTE or TetriDyn or any subsidiary in connection with the authorization, execution, and delivery of this Agreement and the consummation of the transactions contemplated hereby, including the Merger; (iii) make all necessary filings, and thereafter make any other required submissions, respecting this Agreement and the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other in connection with the making of doing, all such filingsthings necessary, including providing copies of all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, proper or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application advisable under applicable Law or other filing to be made pursuant to the rules any contract or agreement to consummate and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE and TetriDyn agree to cooperate respectingmake effective, to cause each of their respective subsidiaries to cooperate respectingas promptly as practicable, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any and the other transactions contemplated by this Agreement, including by vigorously pursuing (i) the taking of all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree reasonable actions necessary to take all actions, including cause the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition conditions to Closing not set forth in ARTICLE VIII to be satisfied; provided, however(ii) the obtaining of all necessary actions or nonactions, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effectwaivers, consents and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable to consummate the transactions contemplated by this Agreement; (2) otherwise required under any contracts, licenses, leases, or other agreements approvals from Governmental Authorities necessary in connection with the consummation of the Merger and the other transactions contemplated hereby; by this Agreement and the making of all necessary registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authority or other Persons necessary in connection with the consummation of the Merger and the other transactions contemplated by this Agreement, (3iii) required subject to prevent a material adverse effect affecting either Section 7.9(c), the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger or the other transactions contemplated by this Agreement, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed so as to enable the Closing to occur as soon as reasonably possible, and (iv) the execution and delivery of any additional instruments necessary to consummate the Merger and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement. Notwithstanding anything to the contrary in this Agreement, in no event shall the Park Parties, the Company or any of their respective business and operations from occurring prior Subsidiaries or Affiliates be required to the Effective Time agree to, enter into, or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries offer to use all reasonable efforts to obtain release enter into any agreement or consent order requiring divestiture of any guarantees by any owner of TetriDyn of any thirdassets, hold-party indebtedness or obligation that will not be paidseparate, dischargedbusiness limitation, conduct remedy, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth similar arrangement or undertaking in subsection 5.12(c).
(iii) In the event that connection with this Agreement or any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; .
(iiib) Each of the institution Parties shall, and shall cause their respective Affiliates to, furnish to the other such necessary information and reasonable assistance as the other may 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 promptly informing the threat other Party of such inquiry, consulting in advance before making any presentations or submissions to a Governmental Authority, and supplying each other with copies of all material litigation involving it correspondence, filings or communications between either Party and any Governmental Authority with respect to this Agreement. To the extent reasonably practicable and permitted by a Governmental Authority, the Parties or their Representatives shall have the right to review in advance and each of its subsidiaries; or (iv) the Parties will consult the others on, all the information relating to the other and each of their Affiliates that appears in any event or condition that might reasonably be expected to cause any of its representations, warranties, covenantsfiling made with, or agreements set forth herein written materials submitted to, any Governmental Authority in connection with the Merger and the other transactions contemplated by this Agreement, except that confidential competitively sensitive business information may be redacted from such exchanges. The Parties may, as they deem advisable and necessary, designate any sensitive materials provided to the other under this Section 7.2 as “outside counsel only”. Such materials and the information contained therein shall be given only to outside counsel of the recipient and will not be disclosed by such outside counsel to be true and correct at employees, officers, directors or trustees of the Effective Timerecipient without the advance written consent of the Party providing such materials. As used To the extent reasonably practicable, no Party shall, nor shall a Party permit its Representatives to, participate independently in the preceding sentenceany meeting or engage in any substantive conversation with any Governmental Authority in respect of any filing, “material litigation” means any case, arbitration, or adversary proceeding investigation or other matter that is material inquiry without giving the other Party prior notice of such meeting or conversation and, to the business extent permitted by applicable Law, without giving the other Party the opportunity to attend or participate (whether by telephone or in person) in any such meeting with such Governmental Authority.
(c) In addition to and operations without limiting the foregoing, each of the subject entityParties shall, if in existence on the date hereofand shall cause their respective Subsidiaries to, or for which the legal fees use its reasonable best efforts to give any notices to Third Parties, and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life each of the matter Parties shall, and shall cause each of their respective Affiliates to, use its reasonable best efforts to obtain any Third Party consents not covered by Section 7.2(a) and Section 7.2(b) that are necessary, proper or advisable to OTE (consummate the Merger and the other transactions contemplated by this Agreement. Notwithstanding the foregoing, obtaining any approval or consent from any subsidiaryThird Party pursuant to this Section 7.2(c) might reasonably shall not be expected considered a condition to exceed $10,000 over the life obligations of Park to consummate the matterMerger.
Appears in 2 contracts
Samples: Merger Agreement (Chesapeake Lodging Trust), Merger Agreement (Park Hotels & Resorts Inc.)
Appropriate Action; Consents; Filings. (a) OTE and TetriDyn Each Party shall use, and shall cause each of their respective subsidiaries to use, all reasonable efforts to: (i) takegive the other Parties prompt notice of the making or commencement of any request, inquiry, investigation, action or cause legal proceeding by or before any Governmental Entity with respect to be takenthe Mergers, all appropriate action(ii) keep the other Parties informed as to the status of any such request, inquiry, investigation, action or legal proceeding and do(iii) promptly inform the other Parties of (and provide copies of) any communications to or from any Governmental Entity and keep the other Parties reasonably informed regarding any substantive communications to or from a third party, in each case regarding the Mergers or cause to be done, all things necessary, proper, or advisable under applicable Laws or otherwise to consummate and make effective the other transactions contemplated by this Agreement; (ii) obtain from any Governmental Entities any consents. Without otherwise limiting each Party’s approval rights hereunder, licensesas applicable, permitseach Party shall have the right to review in advance, waivers, approvals, authorizations, or orders required to be obtained or made by OTE or TetriDyn or any subsidiary and each Party shall consult and cooperate with the other Parties and shall consider in good faith the views of the other Parties in connection with the authorizationany filing, executionanalysis, and delivery of this Agreement and the consummation of the transactions contemplated herebyappearance, including the Merger; (iii) make all necessary filingspresentation, and thereafter make memorandum, brief, argument, opinion or proposal made or submitted to any other required submissions, respecting this Agreement and the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law Governmental Entity in connection with the transactions contemplated by this Agreement. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation, action or legal proceeding, each Party shall permit authorized Representatives of the other Parties to be present at each meeting or conference relating to such request, inquiry, investigation, action or legal proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted in writing to any Governmental Entity in connection with such request, inquiry, investigation, action or legal proceeding.
(b) OTE On the terms and TetriDyn agree subject to cooperate respectingconditions of this Agreement, each Party shall use reasonable best efforts to consummate the Mergers as promptly as practicable and to cause each to be satisfied all conditions precedent to its obligations under this Agreement, including, consistent with the foregoing, (i) preparing and filing as promptly as practicable, with the objective of their respective subsidiaries being in a position to cooperate respectingconsummate the Mergers as promptly as practicable following the date of the Unitholders’ Meeting, all documentation to effect all necessary or advisable applications, notices, petitions, filings, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, other documents and to have vacatedobtain as promptly as practicable all consents, liftedwaivers, reversedlicenses, orders, registrations, approvals, permits, rulings, authorizations and clearances necessary or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of advisable to be obtained from any Governmental Entity that is or third party in effect and that restricts, prevents, or prohibits connection with the consummation of the Merger or any other transactions contemplated by this Agreement, including any that are required to be obtained under any federal, state or local Law or Contract to which the Company or any Company Subsidiary is a party or by vigorously pursuing which any of their respective properties or assets are bound, (ii) defending all available avenues lawsuits or other legal proceedings against it or any of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree its affiliates relating to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit challenging this Agreement or the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, Mergers (“Transaction Litigation”) and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(iiii) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use effecting all reasonable efforts to obtain any third-party consents: (1) necessary, proper, necessary or advisable registrations and other filings required under the Exchange Act or any other federal, state or local Law relating to consummate the Mergers. Notwithstanding anything to the contrary in this Agreement, in connection with obtaining any consents in connection with the transactions contemplated by this Agreement; Agreement from any Person (2other than from a Governmental Entity) otherwise required under (A) without the prior written consent of NXDT, none of the Company or any contracts, licenses, leases, Company Subsidiary shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other agreements in connection with the consummation consideration, make any commitment or incur any liability or other obligation and (B) none of the transactions contemplated hereby; NXDT or (3) any of its affiliates will be required to prevent a material adverse effect affecting either of their respective business and operations from occurring prior pay or commit to the Effective Time pay to such Person whose approval or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of consent is being solicited any guarantees by cash or other consideration, make any owner of TetriDyn of commitment or incur any third-party indebtedness liability or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) other obligations. In the event that any Party shall fail fails to obtain any third-party consent described in subsection (c)(ii) abovesuch consent, such Party the Parties shall use all commercially reasonable efforts, and shall take efforts to minimize any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE the Company and TetriDyn, NXDT and their respective subsidiaries affiliates and their respective businessesbusinesses resulting, resulting or that could which would reasonably be expected to result result, after the Operating Partnership Merger Effective Time, from the failure to obtain such consent.
(c) Each Party shall keep the other Parties reasonably informed regarding any Transaction Litigation unless doing so would, in the reasonable judgment of such Party, jeopardize any privilege of the Company or any Company Subsidiaries with respect thereto. The Company shall promptly advise NXDT in writing of the initiation of and any material developments regarding, and shall reasonably consult with and permit NXDT and its Representatives to participate in the defense, negotiations or settlement of, any Transaction Litigation, and the Company shall give consideration to NXDT’s advice with respect to such Transaction Litigation. The Company shall not, and shall not permit any Company Subsidiaries nor any of its or their Representatives to, compromise or settle any Transaction Litigation without the prior written consent of NXDT.
(d) OTE Each of the Company and TetriDyn NXDT shall promptly notify the other of: (i) take all action necessary so that no Takeover Statute is or becomes applicable to NXDT, NXDT Intermediary, NXDT OP, NXDT Merger Sub, this Agreement, the Mergers or any material change in its current or future business, assets, liabilities, financial condition, or results of operations; the other transactions contemplated hereby and (ii) if any complaintsTakeover Statute becomes applicable to NXDT, investigationsNXDT Intermediary, NXDT OP, NXDT Merger Sub, this Agreement, the Mergers or hearings (or communications indicating that any of the same may be contemplated) of any Governmental Entities respecting its business or the other transactions contemplated hereby; , take all action necessary so that the Mergers and the other transactions contemplated hereby may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise to minimize the effect of such Takeover Statute on NXDT, NXDT Intermediary, NXDT OP, NXDT Merger Sub, this Agreement, the Mergers and the other transactions contemplated hereby.
(iiie) Prior to the institution Closing Date, the Company shall cooperate with NXDT and use commercially reasonable efforts to take, or cause to be taken, all actions, and do or cause to be done all things reasonably necessary, proper or advisable on its part under applicable Laws and rules and policies of the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected TSXV to cause any the delisting of its representations, warranties, covenants, or agreements set forth herein not the Old NHT Units from the TSXV as promptly as practicable after the Company Merger Effective Time and to apply under Securities Laws for NXDT to cease to be true and correct at the Effective Time. As used a reporting issuer in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matterCanada as promptly as practicable after such delisting.
Appears in 2 contracts
Samples: Merger Agreement (Nexpoint Diversified Real Estate Trust), Merger Agreement (Nexpoint Diversified Real Estate Trust)
Appropriate Action; Consents; Filings. (a) OTE Upon the terms and TetriDyn subject to the conditions set forth in this Agreement, SmartStop shall use, and shall cause each SmartStop Subsidiary and each of their respective subsidiaries Affiliates to, and SST IV shall and shall cause each SST IV Subsidiary and each of their respective Affiliates to, use its reasonable best efforts to use, all reasonable efforts to: (i) take, or cause to be taken, all appropriate actionactions, and to do, or cause to be done, and to assist and cooperate with the other Parties in doing, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise pursuant to any Contract to consummate and make effective effective, as promptly as practicable, the transactions contemplated by this Agreement; (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, or orders required to be obtained or made by OTE or TetriDyn or any subsidiary in connection with the authorization, execution, and delivery of this Agreement Merger and the consummation of the transactions contemplated hereby, including the Merger; (iii) make all necessary filings, and thereafter make any other required submissions, respecting this Agreement and the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing (i) taking all available avenues of administrative actions necessary to cause the conditions to Closing set forth in Article 8 to be satisfied, (ii) preparing and judicial appeal filing any applications, notices, registrations and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or requests as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not advisable to be satisfied; provided, however, that filed with or submitted to any Governmental Authority in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable order to consummate the transactions contemplated by this Agreement; , (2iii) otherwise required under any contractsobtaining all necessary or advisable actions or nonactions, licenseswaivers, leases, consents and approvals from Governmental Authorities or other agreements Persons necessary in connection with the consummation of the Merger and the other transactions contemplated herebyby this Agreement and the making of all necessary or advisable registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary or advisable to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authority or other Persons necessary in connection with the consummation of the Merger and the other transactions contemplated by this Agreement, (iv) subject to Section 7.6(c), defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger or the other transactions contemplated by this Agreement, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed, the avoidance of each and every impediment under any antitrust, merger control, competition or trade regulation Law that may be asserted by any Governmental Authority with respect to the Merger so as to enable the Closing to occur as soon as reasonably possible, and (v) executing and delivering any additional instruments reasonably necessary or advisable to consummate the Merger and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement; provided, that, notwithstanding anything to the contrary in this Agreement, no Party will have any obligation (A) to propose, negotiate, commit to or effect, by consent decree, hold separate order or otherwise, the sale, divestiture or other disposition of any assets or businesses of such Party, any of its subsidiaries (including subsidiaries of SmartStop after the Closing) or their Affiliates or (3B) required otherwise to prevent a material adverse effect affecting either take or commit to take any actions that would limit the freedom of such Party, its subsidiaries (including subsidiaries of SmartStop after the Closing) or their Affiliates with respect to, or their ability to retain, one or more of their businesses, product lines or assets.
(b) In connection with and without limiting the foregoing Section 7.5(a), each of the Parties shall give (or shall cause their respective Affiliates to give) any notices to third parties, and each of the Parties shall use, and cause each of their respective business Affiliates to use, its reasonable best efforts to obtain any third party consents that are necessary, proper or advisable to consummate the Merger and operations from occurring prior the other transactions contemplated by this Agreement. Each of the Parties will, and shall cause their respective Affiliates to, furnish to the Effective Time other Parties such necessary information and reasonable assistance as the other Parties may request in connection with the preparation of any required applications, notices, registrations and requests as may be required or advisable to be filed with any Governmental Authority and will cooperate in responding to any inquiry from a TetriDyn Material Adverse Effect Governmental Authority, including promptly informing the other Party of such inquiry, consulting in advance before making any presentations or submissions to a Governmental Authority, and supplying each other with copies of all material correspondence, filings or communications between such Party and any Governmental Authority with respect to this Agreement. To the extent reasonably practicable, the Parties or their Representatives shall have the right to review in advance and each of the Parties will consult the other Parties on, all the information relating to the other Parties and each of their Affiliates that appears in any filing made with, or written materials submitted to, any Governmental Authority in connection with the Merger and the other transactions contemplated by this Agreement, except that confidential competitively sensitive business information may be redacted from occurring after such exchanges. To the Effective Timeextent reasonably practicable, no Party shall, nor shall any Party permit its respective Representatives to, participate independently in any meeting or engage in any substantive conversation with any Governmental Authority in respect of any filing, investigation or other inquiry without giving the other Parties prior notice of such meeting or conversation and, to the extent permitted by applicable Law, without giving the other Parties the opportunity to attend or participate (whether by telephone or in person) in any such meeting with such Governmental Authority.
(iic) OTE Notwithstanding anything to the contrary in this Agreement, in connection with obtaining any approval or consent from any Person (other than any Governmental Authority) with respect to the Merger and TetriDyn shall use and cause the other transactions contemplated by this Agreement, none of the Parties or any of their respective subsidiaries Representatives shall be obligated to use all pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Person. Subject to the immediately foregoing sentence, the Parties shall cooperate with respect to reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness accommodations that may be requested or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure appropriate to obtain such consentconsents.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matter.
Appears in 2 contracts
Samples: Merger Agreement (SmartStop Self Storage REIT, Inc.), Merger Agreement (Strategic Storage Trust IV, Inc.)
Appropriate Action; Consents; Filings. (a) OTE The Company and TetriDyn Parent shall use, and shall cause each of use their respective subsidiaries reasonable best efforts to use, all reasonable efforts to: (i) take, or cause to be taken, all appropriate action, action and do, or cause to be done, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise to consummate and make effective the transactions contemplated by this Agreement; Agreement as promptly as practicable, (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, authorizations or orders required to be obtained by Parent or made by OTE or TetriDyn the Company or any subsidiary of their respective Subsidiaries, or to avoid any action or proceeding by any Governmental Entity (including, without limitation, those in connection with the HSR Act), in connection with the authorization, execution, execution and delivery of this Agreement and the consummation of the transactions contemplated herebyherein, including without limitation the Offer and the Merger; , and (iii) as promptly as reasonably practicable, and in any event within fifteen (15) Business Days after the date hereof, make all necessary filings, and thereafter make any other required submissions, respecting and pay any fees due in connection therewith, with respect to this Agreement Agreement, the Offer and the Merger required under: under (1A) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; , (B) the HSR Act (with a request for early termination under the HSR Act) and (2C) any other applicable Law; provided thatprovided, OTE that the Company and TetriDyn Parent shall cooperate with each other in connection with (x) preparing and filing the Offer Documents, the Schedule 14D-9, the Proxy Statement and any Other Filings, (y) determining whether any action by or in respect of, or filing with, any Governmental Entity is required, in connection with the consummation of the Offer or the Merger and (z) seeking any such actions, consents, approvals or waivers or making of all any such filings, including providing copies of all such documents to the other Party . The Company and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn Parent shall furnish to each other all information required for any application or other filing to be made pursuant to under the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE The Company and TetriDyn agree to cooperate respecting, to Parent shall give (or shall cause each of their respective subsidiaries Subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanentgive) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use use, and cause their respective subsidiaries Subsidiaries to use all use, their commercially reasonable efforts to obtain any third-third party consents: , (1i) necessary, proper, proper or advisable to consummate the transactions contemplated by this Agreement, (ii) required to be disclosed in the Company Disclosure Schedule or the Parent Disclosure Schedule, as applicable or (iii) required to prevent a Company Material Adverse Effect from occurring prior to or after the Effective Time; (2) otherwise required under provided, however that the Company and Parent shall coordinate and cooperate in determining whether any contractsactions, licensesconsents, leases, approvals or other agreements waivers should be sought from parties to any Company Material Contracts in connection with consummation of the Offer or the Merger and seeking any such actions, consents, approvals or waivers.
(c) Without limiting the generality of anything contained in this Section 5.5, each party hereto shall: (i) give the other parties prompt notice of the making or commencement of any request, inquiry, investigation, action or legal proceeding by or before any Governmental Entity with respect to the Offer, the Merger or any of the other transactions contemplated by this Agreement, (ii) keep the other parties informed as to the status of any such request, inquiry, investigation, action or legal proceeding and (iii) promptly inform the other parties of any communication to or from the Federal Trade Commission, the Department of Justice or any other Governmental Entity regarding the Offer or the Merger. Each party hereto will consult and cooperate with the other parties and will consider in good faith the views of the other parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with the Offer, the Merger or any of the other transactions contemplated by this Agreement. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation, action or legal proceeding, each party hereto will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation, action or legal proceeding (but giving the other party reasonable prior notice of such meeting) and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation, action or legal proceeding. The parties shall use their respective reasonable best efforts to resolve any objections that may be asserted by any Governmental Entity with respect to the transactions contemplated hereby. Subject to the terms and conditions of this Agreement, each party shall use its reasonable best efforts to cause the Closing to occur as promptly as practicable, including by defending against any lawsuits, actions or proceedings, judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby; , and seeking to have any restraint or (3) required to prevent a material adverse effect affecting either of prohibition entered or imposed by any court or other Governmental Entity that is not yet final and nonappealable vacated or reversed. The Company and Parent will cooperate and use their respective business reasonable best efforts to obtain as promptly as practicable all consents, approvals and operations from occurring prior to waivers required by third persons so that all Company Permits and Contracts of the Effective Time or a TetriDyn Material Adverse Effect from occurring Company and the Company Subsidiaries will remain in full force and effect after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material Notwithstanding anything to the business contrary in this Agreement, with respect to their businesses and operations of the subject entity, if in existence assets as they exist on the date hereof, in connection with the receipt of any necessary approvals or for which clearances of a Governmental Entity (including under the legal fees HSR Act), neither Parent nor the Company (nor any of their respective Subsidiaries or affiliates) shall be required to sell, hold separate or otherwise dispose of or conduct their business in a specified manner, or agree to sell, hold separate or otherwise dispose of or conduct their businesses in a specified manner, or enter into or agree to enter into a voting trust arrangement, proxy arrangement, “hold separate” agreement or arrangement or similar agreement or arrangement with respect to the assets, operations or conduct of their business in a specified manner, or permit the sale, holding separate or other disposition of, any assets of Parent, the Company or their respective Subsidiaries or affiliates. Between the date of this Agreement and other costs the Effective Time, neither the Company nor Parent shall take or approve any action, and each shall use its reasonable best efforts to TetriDyn might prevent any condition or occurrence, that would reasonably be expected to exceed $10,000 over adversely affect the life likelihood of obtaining any consent, license, permit, waiver, approval, authorization, or order of any Governmental Entity required to be obtained by Parent or the matter or to OTE (Company or any subsidiary) might reasonably be expected to exceed $10,000 over of their respective Subsidiaries in connection with the life of the mattertransactions contemplated herein.
Appears in 2 contracts
Samples: Merger Agreement (Gentek Inc), Merger Agreement (ASP GT Holding Corp.)
Appropriate Action; Consents; Filings. (a) OTE Prior to the Effective Time, the Company shall use its reasonable best efforts to obtain any consents, approvals or waivers of third parties with respect to any Contracts of the Company or any of the Company Subsidiaries, as may be necessary or appropriate for the consummation of the Transactions or required by the terms of any Contract of the Company or any Company Subsidiary (including such consents as are necessary such that no third party will obtain additional rights under any such Contract as a result of the consummation of the Transactions) as a result of the execution, performance or consummation of the Transactions, including such consents as are required to be disclosed in the Company Disclosure Schedule; provided that, the Company shall coordinate with Parent and TetriDyn cooperate in determining whether any actions, consents, approvals or waivers should be sought to be obtained from third parties (including under any Company Material Contract) in connection with consummation of the Transactions and seeking any such actions, consents, approvals or waivers. Prior to the Effective Time, the Company shall usefurnish Parent with an executed affidavit that satisfies the requirements of Treasury Regulation section 1.1445-2(c)(3)(i).
(b) Subject to the terms and conditions of this Agreement, and shall cause including Section 5.04(j), prior to the Effective Time, each of the Company and Parent shall use their respective subsidiaries reasonable best efforts to use, all reasonable efforts to: (i) take, or cause to be taken, all other appropriate action, action and do, or cause to be done, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise to consummate and make effective the transactions contemplated by this Agreement; Transactions as promptly as practicable and (ii) as promptly as practicable, obtain from any Governmental Entities any consents, licenses, permits, certificates, filings, exemptions, waivers, approvals, authorizations, registrations, waiting period expirations or terminations, clearances or orders required to be obtained by Parent or made by OTE or TetriDyn the Company or any subsidiary of their respective Subsidiaries, or to avoid any Action by any Governmental Entity (including those in connection with the Antitrust Laws and CFIUS Approval), in connection with the authorization, execution, execution and delivery of this Agreement and the consummation of the transactions contemplated herebyMerger and the other Transactions. The Company and Parent shall further (x) cooperate with each other in determining which additional filings, including and which additional consents, licenses, permits, certificates, exemptions, waivers, approvals, authorizations, registrations, clearances or Orders are required to be obtained from Governmental Entities prior to the Merger; Effective Time in connection with the execution and delivery of this Agreement and consummation of the Transactions and (iiiy) use their reasonable best efforts to timely make all such filings and timely seek all such consents, licenses, permits, certificates, exemptions, waivers, approvals, authorizations, registrations, clearances or Orders.
(c) In furtherance and not in limitation of the provisions of Section 5.04(b), each of the Company, Parent and Merger Sub shall as promptly as practicable, make all necessary filingsapplications, notices, petitions and filings required, and thereafter make any other required submissions, respecting submissions and respond as promptly as practicable to any requests for additional information or documentary material with respect to this Agreement and the Merger as is required under: under (1A) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable foreign, federal or state securities Laws; , (B) the Antitrust Laws, (C) subject to Section 5.04(e), Exon-Xxxxxx and (2D) any other applicable Law; provided that. The parties further agree that (A) the initial filings to be made under the HSR Act shall in any event be made by each party no later than seven Business Days following the date of this Agreement and the initial filings to be made under any other Antitrust Laws requiring filings shall in any event be made no later than 10 Business Days following the date of this Agreement, OTE and TetriDyn (B) unless mutually agreed otherwise by the Company and Parent, a preliminary joint voluntary notice in accordance with Exon-Xxxxxx (the “Exon-Xxxxxx Filing”) to CFIUS shall cooperate with in any event be submitted for filing no later than 15 Business Days following the date of this Agreement.
(d) The Company and Parent shall furnish to each other in connection with the making of all such filings, including providing copies of all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to under the rules and regulations of any applicable Law in connection with the transactions contemplated Transactions and copies of all filings made by any filing party with any Governmental Entity in connection with the Transactions; provided, however, that materials provided by the Company or Parent and their respective Subsidiaries or Affiliates to the other party may be redacted (x) as necessary to comply with contractual arrangements entered into in the ordinary course of business without a purpose of avoiding or limiting such party’s obligations under this Agreementsentence and (y) as necessary to reasonably preserve attorney-client privilege or to comply with applicable Law, provided, however, that such materials shall be provided in unredacted form to outside counsel to the receiving party in connection with any such application or filing and the receiving party will cause its outside counsel receiving any such unredacted materials not to disclose such materials to the directors, officers or employees of such receiving party without the prior written consent of the producing party.
(be) OTE Parent and TetriDyn the Company shall use their reasonable best efforts to (x) avoid possible rejection or deferred acceptance of the Exon-Xxxxxx Filing, (y) respond as promptly as practicable and within any time limitations imposed by applicable regulations to any inquiries from CFIUS or any other Governmental Entity involved in the Exon-Xxxxxx review and make any other submissions under Exon-Xxxxxx that are required to be made or that the parties agree to cooperate respectingshould be made and (z) obtain the CFIUS Approval, to cause as promptly as practicable.
(f) Without limiting the generality of anything contained in this Section 5.04, (A) each of their respective subsidiaries the Company and Parent shall give prompt written notice to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist the other of any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned of the following: (i) any decree, judgment, injunction, notice or other order communication from any Person alleging that the consent of such Person is or may be required in connection with the Merger or any of the other Transactions (whether temporaryii) any notice or other communication from the U.S. Federal Trade Commission, preliminarythe U.S. Department of Justice, CFIUS or permanent) (an “Order”) of any other Governmental Entity that is in effect connection with the Transactions and that restricts(iii) to the Knowledge of the Company or to Parent’s Knowledge, preventsany Action commenced or threatened against, relating to or prohibits involving or otherwise affecting the Company or any Company Subsidiary which relate to the consummation of the Merger or any of the other transactions contemplated Transactions.
(g) Subject to applicable Law, each party hereto (or its counsel) shall, to the extent practicable, permit the other party (or its counsel) to review in advance any proposed communication by such party relating to the Transactions to any Governmental Entity. To the extent practicable, none of the parties to this Agreement shall agree to participate in any meeting with any Governmental Entity in respect of any filings, investigation (including any settlement of the investigation), Action or other inquiry unless it consults with the other party in advance and, to the extent permitted by such Governmental Entity, gives the other party (or its counsel) the opportunity to attend and participate at such meeting. The parties to this Agreement will coordinate and cooperate fully with each other in exchanging such information and providing such assistance as the other party may reasonably request in connection with the foregoing and in seeking early termination of any applicable waiting periods, including under the HSR Act. Prior to the Effective Time, the Company shall exercise, consistent with the terms and conditions of this Agreement, control and supervision over its business operations. Each party hereto will consult and cooperate with the other parties and will consider in good faith the views of the other parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with the Merger or any of the other Transactions. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such Action, investigation or other inquiry, each party hereto will have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Entity in connection with such Action, investigation or other inquiry, provided, however, that materials provided by the Company or Parent or their respective Subsidiaries or Affiliates to the other party may be redacted (x) as necessary to comply with contractual arrangements entered into in the ordinary course of business without a purpose of avoiding or limiting such party’s obligations under this sentence and (y) as necessary to reasonably preserve attorney-client privilege or to comply with applicable Law; provided, however, that such materials shall be provided in unredacted form to the receiving party’s outside counsel representing such party before such Governmental Entity. Nothing contained in this Agreement shall give Parent or Merger Sub, directly or indirectly, the right to control, direct or interfere with the operations of the Company prior to the Effective Time.
(h) Notwithstanding anything to the contrary in this Agreement, in connection with obtaining any approval or consent from any Person with respect to the Merger or the other Transactions, other than filing fees required to be paid in connection with a filing under any applicable Antitrust Laws or Exon-Xxxxxx, (i) without the prior written consent of Parent, none of the Company or any Company Subsidiary shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any commitment or incur any Liability or other obligation due to such Person, and (ii) neither Parent nor Merger Sub shall be required to pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any commitment or incur any Liability or other obligation.
(i) Each of the parties hereto agrees that it will not extend any applicable waiting period under any Antitrust Law or enter into an agreement with any Governmental Entity to delay or not consummate the Transactions without the written consent of the other parties hereto (which shall not be unreasonably withheld, delayed or conditioned).
(j) Notwithstanding anything to the contrary set forth in this Agreement, nothing in this Agreement shall obligate Parent, Merger Sub or any of their respective Affiliates to proffer to, agree to or actually (and none of the Company or any Company Subsidiary shall, without the prior written consent of Parent, proffer to, agree to or actually) (i) divest, hold separate (including by vigorously pursuing all available avenues establishing a trust), or enter into any license (whether pursuant to an exclusive or nonexclusive license) or similar agreement with respect to, or agree to restrict the ownership or operation of, or agree to conduct or operate in a specified manner, any portion of administrative the business or assets of Parent, the Company or any of their respective Affiliates, (ii) pay any amounts or make any commitments to obtain any consents, licenses, permits, certificates, exemptions, waivers, approvals, authorizations, registrations, clearances or Orders of a Governmental Entity or any other Person (other than the payment of filing fees and judicial appeal expenses and legislative action. OTE fees of counsel) in connection with the Transactions, (iii) limit in any manner the ability of such entities to conduct, own, operate or control their respective businesses, assets or properties or of the businesses, properties or assets of the Company and TetriDyn also the Company Subsidiaries, or otherwise enter into any voting trust arrangement, proxy arrangement or similar agreement or arrangement, or (iv) agree to take all actionsmitigation measures, including if any, to obtain the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition CFIUS Approval.
(k) Notwithstanding anything to the granting contrary set forth in this Agreement, in no event shall Parent or any of its Affiliates be obligated to litigate or participate in the litigation of any approvals required in order Action brought by any Governmental Entity or appeal any Order (i) challenging or seeking to permit make illegal, delay materially or otherwise directly or indirectly restrain or prohibit the consummation of the Merger or as may be required to avoid, lift, vacate, any of the other Transactions or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts seeking to obtain any third-party consents: (1) necessary, proper, or advisable to consummate the transactions contemplated by this Agreement; (2) otherwise required under any contracts, licenses, leases, or other agreements in connection with the consummation of the transactions contemplated hereby; or (3) required to prevent a material adverse effect affecting either of their respective business and operations from occurring prior to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it Parent or any of its subsidiaries; Affiliates any damages in connection therewith, or (ivii) seeking to prohibit or limit in any event respect, or condition that might reasonably be expected to cause place any conditions on, the ownership or operation by the Company, Parent or any of their respective Affiliates of all or any portion of the business, assets or any Company Product or product of Parent or any of its representationsAffiliates or to require any such Person to divest, warranties, covenantshold separate, or agreements enter into any license (whether pursuant to an exclusive or nonexclusive license) or similar agreement with respect to any portion of the business or assets of Parent, the Company or any of their respective Affiliates.
(l) Notwithstanding anything to the contrary set forth herein not in this Agreement, nothing in this Agreement shall restrict, Parent or any of its Affiliates from developing, soliciting, considering, communicating, exchanging or furnishing information, negotiating, disclosing, entering into or consummating potential or definitive strategic transactions through both internally generated and third party proposals.
(m) The Company shall give Parent the opportunity to be true and correct at the Effective Time. As used participate in the preceding sentencedefense, settlement or compromise of any Action or investigation against the Company and/or its directors relating to the Transactions and will obtain the prior written consent of Parent prior to settling or satisfying any such Action or investigation. For purposes of this paragraph “material litigationparticipate” means that Parent will be kept apprised of proposed strategy and other significant decisions with respect to the Action or investigation by the Company (to the extent that the attorney-client privilege between the Company and its counsel is not breached), and Parent may offer comments or suggestions with respect to the Action or investigation but will not be afforded any case, arbitration, or adversary proceeding decision-making power or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 authority over the life of Action or investigation, except for the matter settlement or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the mattercompromise consent set forth above.
Appears in 2 contracts
Samples: Merger Agreement (Concur Technologies Inc), Merger Agreement (Concur Technologies Inc)
Appropriate Action; Consents; Filings. (a) OTE Upon the terms and TetriDyn subject to the conditions set forth in this Agreement, each of the STAR Parties and each of the STAR III Parties shall use, and shall cause each of the other STAR Subsidiaries and the other STAR III Subsidiaries, respectively, and their respective subsidiaries Affiliates to use, all use its reasonable best efforts to: (i) to take, or cause to be taken, all appropriate actionactions, and to do, or cause to be done, and to assist and cooperate with the other Party in doing, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise pursuant to any Contract to consummate and make effective effective, as promptly as practicable, the transactions contemplated by this Agreement; (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, or orders required to be obtained or made by OTE or TetriDyn or any subsidiary in connection with the authorization, execution, and delivery of this Agreement Merger and the consummation of the transactions contemplated hereby, including the Merger; (iii) make all necessary filings, and thereafter make any other required submissions, respecting this Agreement and the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing (i) taking all available avenues of administrative actions necessary to cause the conditions to Closing set forth in Article 8 to be satisfied, (ii) preparing and judicial appeal filing any applications, notices, registrations and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or requests as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not advisable to be satisfied; provided, however, that filed with or submitted to any Governmental Authority in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable order to consummate the transactions contemplated by this Agreement; , (2iii) otherwise required under any contractsobtaining all necessary or advisable actions or nonactions, licenseswaivers, leases, consents and approvals from Governmental Authorities or other agreements Persons necessary in connection with the consummation of the Merger and the other transactions contemplated herebyby this Agreement and the making of all necessary or advisable registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary or advisable to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authority or other Persons necessary in connection with the consummation of the Merger and the other transactions contemplated by this Agreement, (iv) subject to Section 7.6(c), defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger or the other transactions contemplated by this Agreement, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed, the avoidance of each and every impediment under any antitrust, merger control, competition or trade regulation Law that may be asserted by any Governmental Authority with respect to the Merger so as to enable the Closing to occur as soon as reasonably possible, and (v) executing and delivering any additional instruments necessary or advisable to consummate the Merger and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement; provided, that neither Party will have any obligation (A) to propose, negotiate, commit to or effect, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of such Party, any of its subsidiaries (including subsidiaries of STAR after the Closing) or their Affiliates or (3B) required otherwise to prevent a material adverse effect affecting either take or commit to take any actions that would limit the freedom of such Party, its subsidiaries (including subsidiaries of STAR after the Closing) or their Affiliates with respect to, or their ability to retain, one or more of their businesses, product lines or assets.
(b) In connection with and without limiting the foregoing Section 7.5(a), each of the Parties shall give (or shall cause their respective Affiliates to give) any notices to third parties, and each of the Parties shall use, and cause each of their respective business Affiliates to use, its reasonable best efforts to obtain any third party consents that are necessary, proper or advisable to consummate the Merger and operations from occurring prior the other transactions contemplated by this Agreement. Each of the Parties will, and shall cause their respective Affiliates to, furnish to the Effective Time other such necessary information and reasonable assistance as the other may request in connection with the preparation of any required applications, notices, registrations and requests as may be required or advisable to be filed with any Governmental Authority and will cooperate in responding to any inquiry from a TetriDyn Material Adverse Effect Governmental Authority, including promptly informing the other Party of such inquiry, consulting in advance before making any presentations or submissions to a Governmental Authority, and supplying each other with copies of all material correspondence, filings or communications between either Party and any Governmental Authority with respect to this Agreement. To the extent reasonably practicable, the Parties or their Representatives shall have the right to review in advance and each of the Parties will consult the others on, all the information relating to the other and each of their Affiliates that appears in any filing made with, or written materials submitted to, any Governmental Authority in connection with the Merger and the other transactions contemplated by this Agreement, except that confidential competitively sensitive business information may be redacted from occurring after such exchanges. To the Effective Timeextent reasonably practicable, neither Party shall, nor shall they permit their respective Representatives to, participate independently in any meeting or engage in any substantive conversation with any Governmental Authority in respect of any filing, investigation or other inquiry without giving the other Party prior notice of such meeting or conversation and, to the extent permitted by applicable Law, without giving the other Party the opportunity to attend or participate (whether by telephone or in person) in any such meeting with such Governmental Authority.
(iic) OTE Notwithstanding anything to the contrary in this Agreement, in connection with obtaining any approval or consent from any Person (other than any Governmental Authority) with respect to the Merger and TetriDyn shall use and cause the other transactions contemplated by this Agreement, none of the Parties or any of their respective subsidiaries Representatives shall be obligated to use all pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Person. Subject to the immediately foregoing sentence, the Parties shall cooperate with respect to reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness accommodations that may be requested or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure appropriate to obtain such consentconsents.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matter.
Appears in 2 contracts
Samples: Merger Agreement (Steadfast Apartment REIT III, Inc.), Merger Agreement (Steadfast Apartment REIT, Inc.)
Appropriate Action; Consents; Filings. (a) OTE Upon the terms and TetriDyn subject to the conditions set forth in this Agreement, each of Terra BDC and Terra REIT shall use, and shall cause each of the Terra BDC Subsidiaries and the Terra REIT Subsidiaries, respectively, and their respective subsidiaries Affiliates to use, all use its commercially reasonable efforts to: (i) to take, or cause to be taken, all appropriate actionactions, and to do, or cause to be done, and to assist and cooperate with the other party in doing, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise pursuant to any Contract to consummate and make effective effective, as promptly as practicable, the transactions contemplated by this Agreement; (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, or orders required to be obtained or made by OTE or TetriDyn or any subsidiary in connection with the authorization, execution, and delivery of this Agreement Merger and the consummation of the transactions contemplated hereby, including the Merger; (iii) make all necessary filings, and thereafter make any other required submissions, respecting this Agreement and the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing (i) taking all available avenues of administrative actions necessary to cause the conditions to Closing set forth in Article 8 to be satisfied, (ii) preparing and judicial appeal filing any applications, notices, registrations and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or requests as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not advisable to be satisfied; provided, however, that filed with or submitted to any Governmental Authority in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable order to consummate the transactions contemplated by this Agreement; , (2iii) otherwise required under any contractsobtaining all necessary or advisable actions or nonactions, licenseswaivers, leases, consents and approvals from Governmental Authorities or other agreements Persons necessary in connection with the consummation of the Merger and the other transactions contemplated herebyby this Agreement and the making of all necessary or advisable registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary or advisable to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authority or other Persons necessary in connection with the consummation of the Merger and the other transactions contemplated by this Agreement, (iv) subject to Section 7.6(c), defending any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger or the other transactions contemplated by this Agreement, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed, the avoidance of each and every impediment under any antitrust, merger control, competition or trade regulation Law that may be asserted by any Governmental Authority with respect to the Merger so as to enable the Closing to occur as soon as reasonably possible, and (v) executing and delivering any additional instruments necessary or advisable to consummate the Merger and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement; provided, that neither Party will have any obligation (A) to propose, negotiate, commit to or effect, by consent decree, hold separate order or otherwise, the sale, divestiture or disposition of any assets or businesses of such Party, any of its subsidiaries (including subsidiaries of Terra REIT after the Closing) or their Affiliates or (3B) required otherwise to prevent a material adverse effect affecting either take or commit to take any actions that would limit the freedom of such Party, its subsidiaries (including subsidiaries of Terra REIT after the Closing) or their Affiliates with respect to, or their ability to retain, one or more of their businesses, product lines or assets.
(b) In connection with and without limiting the foregoing Section 7.5(a), each of the Parties shall give (or shall cause their respective Affiliates to give) any notices to third parties, and each of the Parties shall use, and cause each of their respective business and operations from occurring prior Affiliates to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all use, commercially reasonable efforts to obtain release any third party consents that are necessary, proper or advisable to consummate the Merger and the other transactions contemplated by this Agreement. Each of the Parties will, and shall cause their respective Affiliates to, furnish to the other such necessary information and reasonable assistance as the other may request in connection with the preparation of any guarantees required applications, notices, registrations and requests as may be required or advisable to be filed with any Governmental Authority and will cooperate in responding to any inquiry from a Governmental Authority, including promptly informing the other party of such inquiry, consulting in advance before making any presentations or submissions to a Governmental Authority, and supplying each other with copies of all material correspondence, filings or communications between either party and any Governmental Authority with respect to this Agreement. To the extent reasonably practicable, the Parties or their Representatives shall have the right to review in advance and each of the Parties will consult the others on, all the information relating to the other and each of their Affiliates that appears in any filing made with, or written materials submitted to, any Governmental Authority in connection with the Merger and the other transactions contemplated by this Agreement, except that confidential competitively sensitive business information may be redacted from such exchanges. To the extent reasonably practicable, neither Party shall, nor shall they permit their respective Representatives to, participate independently in any owner of TetriDyn meeting or engage in any substantive conversation with any Governmental Authority in respect of any third-party indebtedness filing, investigation or obligation that will not be paidother inquiry without giving the other Party prior notice of such meeting or conversation and, dischargedto the extent permitted by applicable Law, without giving the other Party the opportunity to attend or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth participate (whether by telephone or in subsection 5.12(c)person) in any such meeting with such Governmental Authority.
(iiic) In Notwithstanding anything to the event that contrary in this Agreement, in connection with obtaining any Party shall fail approval or consent from any Person (other than any Governmental Authority) with respect to obtain the Merger and the other transactions contemplated by this Agreement, none of the Parties or any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and of their respective subsidiaries and their respective businessesRepresentatives shall be obligated to pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, resulting make any accommodation or commitment or incur any liability or other obligation to such Person. Subject to the immediately foregoing sentence, the Parties shall cooperate with respect to reasonable accommodations that could reasonably may be expected to result after the Effective Time, from the failure requested or appropriate to obtain such consentconsents.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matter.
Appears in 2 contracts
Samples: Merger Agreement (Terra Income Fund 6, Inc.), Merger Agreement (Terra Property Trust, Inc.)
Appropriate Action; Consents; Filings. Section 5.6.1 The Company and Parent shall use their reasonable best efforts to (a) OTE and TetriDyn shall use, and shall cause each of their respective subsidiaries to use, all reasonable efforts to: (iA) take, or cause to be taken, all appropriate action, and do, or cause to be done, all things necessary, proper, proper or advisable under any applicable Laws Law or otherwise to consummate and make effective the transactions contemplated by this Agreement; Agreement and each Ancillary Agreement as promptly as practicable, (iiB) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, authorizations or orders required to be obtained or made by OTE Parent or TetriDyn the Company or any subsidiary of their respective Subsidiaries, or to avoid any action or proceeding by any Governmental Entity, in connection with the authorization, execution, execution and delivery of this Agreement and each Ancillary Agreement and the consummation of the transactions contemplated herebyherein and therein, including including, without limitation, the Merger; , and (iiiC) make all necessary filings, and thereafter make any other required submissions, respecting with respect to this Agreement and each Ancillary Agreement and the Merger required under: under (1x) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; Laws and (2y) any other applicable Law; , provided that, OTE that Parent and TetriDyn the Company shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party non-filing party and its advisers advisors prior to such filings filing and, if requested, shall to accept all reasonable additions, deletions, deletions or changes suggested in connection therewiththerewith and provided further that nothing in this Section 5.6.1 shall require Parent to agree to (AA) the imposition of conditions, (BB) the requirement of divestiture of assets or property or (CC) the requirement of expenditure of money by Parent or the Company to a third party in exchange for any such consent, license, permit, waiver, approval, authorization or order. OTE The Company and TetriDyn Parent shall furnish to each other all information required for any application or other filing to be made pursuant to under the rules and regulations of any 42 applicable Law (including all information required to be included in the Proxy Statement) in connection with the transactions contemplated by this Agreement and each Ancillary Agreement.
Section 5.6.2 The Company and Parent shall give (b) OTE and TetriDyn agree to cooperate respecting, to or shall cause each of their respective subsidiaries Subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanentgive) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use use, and cause their respective subsidiaries Subsidiaries to use all use, their reasonable best efforts to obtain any third-third party consents: , (1A) necessary, proper, proper or advisable to consummate the transactions contemplated by in this Agreement and each Ancillary Agreement; , (2B) otherwise required under any contracts, licenses, leases, or other agreements to be disclosed in connection with the consummation of the transactions contemplated hereby; Company Disclosure Schedule or (3C) required to prevent a material adverse effect affecting either of their respective business and operations Company Material Adverse Effect from occurring prior to or after the Effective Time or a TetriDyn Parent Material Adverse Effect from occurring prior to or after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) . In the event that any Party either party shall fail to obtain any third-third party consent described in subsection (c)(ii) abovethe first sentence of this Section 5.6.2, such Party party shall use all its reasonable best efforts, and shall take any such actions reasonably requested by any the other Partyparty hereto, to limit the minimize any adverse effect upon OTE the Company and TetriDynParent, their respective Subsidiaries, and their respective subsidiaries and their respective businessesbusinesses resulting, resulting or that which could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn Section 5.6.3 From the date of this Agreement until the Effective Time, the Company shall promptly notify the other of: (i) any material change Parent in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) writing of any pending or, to the knowledge of the Company, threatened action, suit, arbitration or other proceeding or investigation by any Governmental Entities respecting its business Entity or any other person (A) challenging or seeking material damages in connection with the Merger or the transactions contemplated hereby; conversion of Company Common Stock into the Merger Consideration pursuant to the Merger or (iiiB) seeking to restrain or prohibit the institution consummation of the Merger or otherwise limit the threat right of material litigation involving it Parent or any of its subsidiaries; Parent Subsidiary to own or (iv) operate all or any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations portion of the subject entity, if in existence on the date hereof, businesses or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life assets of the matter or to OTE (Company or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matterCompany Subsidiary.
Appears in 2 contracts
Samples: Merger Agreement (T/R Systems Inc), Merger Agreement (Electronics for Imaging Inc)
Appropriate Action; Consents; Filings. (a) OTE Parent and TetriDyn the Company shall use, and shall cause each of use their respective subsidiaries to use, all commercially reasonable efforts to: to (iA) take, or cause to be taken, all appropriate action, and do, or cause to be done, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise to consummate and make effective the transactions contemplated by this Agreement; Agreement as promptly as practicable, (iiB) obtain from any Governmental Entities Entity any consents, licenses, permits, waivers, approvals, authorizations, authorizations or orders required to be obtained or made by OTE Parent or TetriDyn the Company or any subsidiary of their respective Subsidiaries, or to avoid any action or proceeding by any Governmental Entity (including, without limitation, those in connection with the HSR Act), in connection with the authorization, execution, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, including including, without limitation, the Merger; , and (iiiC) make all necessary filings, and thereafter make any other required submissions, respecting with respect to this Agreement and the Merger transactions contemplated hereby, including the Merger, required under: under (1x) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; , and (2y) any other applicable Law; provided thatprovided, OTE that Parent and TetriDyn the Company shall cooperate with each other in connection with the making of all such filings, including including, if requested by providing copies of all such documents to the other Party non-filing party and its advisers advisors prior to such filings filing and, if requested, shall to accept all reasonable additions, deletions, deletions or changes suggested in connection therewith. OTE and TetriDyn ; provided, further, that nothing in this Section 5.7(a) shall furnish all information required require the expenditure of money by the Company or Parent to a third party in exchange for any application such consent (other than nominal filing or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreementprocessing fees).
(b) OTE and TetriDyn agree Notwithstanding anything to cooperate respectingthe contrary contained in this Agreement, no party shall have any obligation under this Agreement: (i) to dispose of or transfer or cause any of its Subsidiaries to dispose of or transfer any assets; (ii) to discontinue, or cause any its Subsidiaries to discontinue, offering any product or service; (iii) to license or otherwise make available, or cause any its Subsidiaries to license or otherwise make available, to any person any Intellectual Property; (iv) to hold, or cause each any of its Subsidiaries to hold, separate any assets or operations (either before or after the Effective Time), (v) to make, or cause any of its Subsidiaries to make, any commitment (to any Governmental Entity or otherwise) regarding its future operations or to contest any Legal Proceeding or any order, writ, injunction or decree relating to the transactions contemplated hereby if such party determines in good faith that contesting such Legal Proceeding or order, writ, injunction or decree could materially adversely affect such party.
(c) Parent and the Company shall give (or shall cause any of their respective subsidiaries Subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanentgive) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all commercially reasonable best efforts to obtain any third-third party consents: , (1A) necessary, proper, proper or advisable to consummate the transactions contemplated by in this Agreement; , (2B) otherwise disclosed as required under any contractsin the Parent Disclosure Letter or the Company Disclosure Letter, licenses, leasesas applicable, or other agreements in connection with the consummation of the transactions contemplated hereby; or (3C) required to prevent a material adverse effect affecting either of their respective business and operations Material Adverse Effect with respect to Parent or the Company, as applicable, from occurring prior to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(iid) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set Set forth in subsection 5.12(c).
(iiiSection 5.7(d) In of the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results Company Disclosure Letter is a list of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same those persons who may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not deemed to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations affiliates of the subject entity, if in existence on Company within the date hereof, or meaning of Rule 145 promulgated under the Securities Act (a “Company Affiliate”). The Company will provide Parent with such information and documents as Parent reasonably requests for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life purposes of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matterreviewing such list.
Appears in 2 contracts
Samples: Merger Agreement (Inhibitex, Inc.), Merger Agreement (Fermavir Pharmaceuticals, Inc.)
Appropriate Action; Consents; Filings. (a) OTE Subject to the terms and TetriDyn shall useconditions of this Agreement, and shall cause each of the parties hereto will use their respective subsidiaries to use, all reasonable best efforts to: (i) take, or cause to be taken, all appropriate action, and do, or cause to be done, all things necessary, proper, or advisable under applicable Laws or otherwise to consummate and make effective the transactions contemplated by this Agreement; (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, or orders required to be obtained or made by OTE or TetriDyn or any subsidiary in connection with the authorization, execution, and delivery of this Agreement and to cause the consummation of the transactions contemplated hereby, including the Merger; (iii) make all necessary filings, and thereafter make any other required submissions, respecting this Agreement and conditions to the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other set forth in connection with the making of all such filings, including providing copies of all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not Article VI to be satisfied; provided, however, that in no event shall OTE be required including using reasonable best efforts to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
accomplish the following: (i) OTE the obtaining of all necessary actions or non-actions, consents and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable to consummate the transactions contemplated by this Agreement; (2) otherwise required under any contracts, licenses, leases, approvals from Governmental Authorities or other agreements Persons necessary in connection with the consummation of the transactions contemplated hereby; by this Agreement, including the Merger, and the making of all necessary registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary to obtain an approval from, or to avoid a Proceeding by, any Governmental Authority or other Persons necessary in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, (3ii) the defending of any lawsuits or other legal Proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated by this Agreement, including the Merger, performed or consummated by such party in accordance with the terms of this Agreement, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed and (iii) prompt provision of any additional information to any Governmental Authority as such Governmental Authority may lawfully request and the execution and delivery of any additional instruments reasonably necessary to consummate the Merger and any other transactions to be performed or consummated by such party in accordance with the terms of this Agreement and to carry out fully the purposes of this Agreement. Each of the parties hereto shall as promptly as reasonably practicable after the date of this Agreement, upon a date to be mutually agreed upon by the parties hereto (and in any event within ten (10) Business Days following the date of this Agreement, unless agreed otherwise by the parties hereto), make its respective filings under the HSR Act. Each of the parties hereto shall as promptly as reasonably practicable after the date of this Agreement, upon a date to be mutually agreed upon by the parties hereto, make any other applications and filings as reasonably determined by the Company and Parent under other applicable Antitrust Laws with respect to the transactions contemplated by this Agreement as promptly as reasonably practicable, but in no event later than as required by Law. Notwithstanding anything to prevent a material adverse effect affecting either the contrary contained in this Agreement, neither Parent nor the Company or any of their respective business Affiliates shall be required to, and operations from occurring without the prior written consent of Parent, none of the Company or any of its Subsidiaries or Affiliates will, grant or offer to grant any accommodation or concession (financial or otherwise), or make any payment, to any third Person in connection with seeking or obtaining its consent to the Effective Time transactions contemplated by this Agreement (it being understood that this sentence does not apply to the actions required by Section 5.3(d) or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(cSection 5.3(e)).
(b) In connection with and without limiting the efforts referenced in this Section 5.3, each of the parties hereto will furnish to the other such necessary information and reasonable assistance as the other may reasonably request in connection with the preparation of any required governmental filings or submissions and will cooperate in responding to any investigation or other inquiry from a Governmental Authority or in connection with any Proceeding initiated by a private party, in each case, under any applicable Antitrust Laws, including (i) promptly informing the other party of such inquiry or Proceeding, (ii) consulting in advance before making any presentations or submissions to a Governmental Authority, or in connection with any such Proceeding, to any other Person, and supplying each other with copies of all material correspondence, filings or communications between either party and any Governmental Authority, or in connection with any such Proceeding, between either party and any other Person with respect to this Agreement and (iii) providing the other party with a reasonable advance opportunity to review and comment upon and consider in good faith the views of the other in connection with all written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals) between either party and any Governmental Authority, or in connection with any such Proceeding, between either party and any other Person with respect to this Agreement; provided that materials required to be provided by one party to another pursuant to this Section 5.3(b) may be redacted (i) to remove references concerning the valuation of the Company, (ii) as necessary to comply with contractual arrangements and (iii) as necessary to address reasonable attorney-client or other privilege or confidentiality concerns or may be provided on an outside counsel basis, if reasonably appropriate. In addition, each of the event that parties hereto will give reasonable notice to and consult with the other in advance of any Party shall fail to obtain meeting or substantive telephone call or conference with any third-party consent described Governmental Authority, or in subsection (c)(ii) aboveconnection with any such Proceeding, such Party shall use all reasonable effortswith any other Person, and to the extent permitted by the Governmental Authority, give the other the opportunity to attend and participate in such meeting, telephone call or conference.
(c) The parties shall take any such actions reasonably requested consult with each other with respect to obtaining all permits and Consents necessary to consummate the transactions contemplated by any other Partythis Agreement, to limit including the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consentMerger.
(d) OTE Subject to the limitations set forth below in Section 5.3(e), Parent agrees to take, or cause to be taken (including by its Subsidiaries), any and TetriDyn shall all steps and to make, or cause to be made (including by its Subsidiaries), any and all undertakings necessary to resolve such objections, if any, that a Governmental Authority may assert under any Antitrust Law with respect to the transactions contemplated by this Agreement, and to avoid or eliminate any impediment under any Antitrust Law that may be asserted by any Governmental Authority with respect to the transactions contemplated by this Agreement, in each case, so as to enable the Closing to occur as promptly notify as practicable and in any event no later than the other of: Termination Date, including (ix) proposing, negotiating, committing to and effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of any material change in its current or future businessbusinesses, assets, liabilitiesequity interests, financial conditionproduct lines or properties of the Company, (y) creating, terminating, or results divesting relationships, ventures, contractual rights or obligations of operations; the Company and (iiz) otherwise taking or committing to take any complaints, investigationsaction that would limit Parent’s freedom of action with respect to, or hearings (its ability to retain or communications indicating that hold, directly or indirectly, any businesses, assets, equity interests, product lines or properties of the same Company, in each case as may be contemplated) required in order to obtain all expirations or terminations of waiting periods required under any Antitrust Law or to avoid the commencement of any action by a Governmental Entities respecting its business or Authority to prohibit the transactions contemplated herebyby the Agreement under any Antitrust Law, or, in the alternative, to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other Order in any action or proceeding seeking to prohibit the transactions contemplated by this Agreement or delay the Closing beyond the Termination Date. To assist Parent in complying with its obligations set forth in this Section 5.3(d), the Company shall enter into one or more agreements requested by Parent to be entered into by any of them prior to the Closing with respect to any transaction to divest, hold separate or otherwise take any action that limits the Company’s freedom of action, ownership or control with respect to, or their ability to retain or hold, directly or indirectly, any of the businesses, assets, equity interests, product lines or properties of the Company (each, a “Divestiture Action”); provided, however, that the consummation of the transactions provided for in any such agreement for a Divestiture Action shall be conditioned upon the Closing or satisfaction of all of the conditions to Closing in a case where the Closing will occur immediately following such Divestiture Action (iiiand where Parent has irrevocably committed to effect the Closing immediately following such Divestiture Action).
(e) Notwithstanding anything in this Agreement to the institution or the threat contrary, none of material litigation involving it Parent or any of its subsidiaries; Affiliates shall be required to take any Divestiture Action or (iv) otherwise agree to or proffer to sell, divest, hold separate, lease, license, transfer, dispose of or otherwise encumber or impair or take any event other action with respect to Parent’s or condition that might reasonably be expected to cause any of its representationsAffiliates’ ability to own or operate any assets, warrantiesproperties, covenantsbusinesses or product lines of Parent or any of its Affiliates (including, for the avoidance of doubt, any Securities of the Company or agreements set forth herein not to be true and correct at the Effective Time. As used its Subsidiaries) or, except as would not, individually or in the preceding sentenceaggregate, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is be material to the business Company and operations its Subsidiaries, taken as a whole, any assets, properties, businesses or product lines of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (Company or any subsidiaryof its Subsidiaries; provided, however, that none of Parent or any of its Affiliates shall be required to take any action contemplated in Section 5.3(d) might reasonably be expected or this Section 5.3(e) in connection with any Proceeding by a Person other than a Governmental Authority, and the Company shall not, and shall not cause or permit any of its Subsidiaries to, unless requested to exceed $10,000 over the life of the matterdo so by Parent, commit to or effect any action contemplated in Section 5.3(d) or this Section 5.3(e).
Appears in 2 contracts
Samples: Merger Agreement (K2m Group Holdings, Inc.), Merger Agreement (Stryker Corp)
Appropriate Action; Consents; Filings. (a) OTE Upon the terms and TetriDyn subject to the conditions set forth in this Agreement (including Section 6.5), each of the Company and Parent shall use, (and shall cause each of their respective subsidiaries the Company Subsidiaries and the Parent Subsidiaries, respectively, to) use its commercially reasonable best efforts to use, all reasonable efforts to: (i) take, or cause to be taken, all appropriate actionactions, and to do, or cause to be done, and to assist and cooperate with the other party in doing, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise pursuant to any contract or agreement to consummate and make effective effective, as promptly as practicable, the transactions contemplated by this Agreement; (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, or orders required to be obtained or made by OTE or TetriDyn or any subsidiary in connection with the authorization, execution, and delivery of this Agreement Mergers and the consummation of the transactions contemplated hereby, including the Merger; (iii) make all necessary filings, and thereafter make any other required submissions, respecting this Agreement and the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing (i) the taking of all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree actions necessary to take all actions, including cause the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition conditions to Closing not set forth in Article VII to be satisfied; provided, however(ii) the obtaining of all necessary actions or nonactions, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effectwaivers, consents and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable to consummate the transactions contemplated by this Agreement; (2) otherwise required under any contracts, licenses, leases, approvals from Governmental Authorities or other agreements Persons necessary in connection with the consummation of the Mergers and the other transactions contemplated herebyby this Agreement and the making of all necessary registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authority or other Persons necessary in connection with the consummation of the Mergers and the other transactions contemplated by this Agreement, (iii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers or the other transactions and documents contemplated by this Agreement, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed, the avoidance of each and every impediment under any antitrust, merger control, competition or trade regulation Law that may be asserted by any Governmental Authority with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible; and (iv) the execution and delivery of any additional instruments necessary to consummate the Mergers and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement; provided, that, notwithstanding anything to the contrary in this Agreement, no Party will have any obligation (A) to propose, negotiate, commit to or effect, by consent decree, hold separate order or otherwise, the sale, divestiture or other disposition of any assets or businesses of such Party, any of its subsidiaries or their Affiliates or (3B) required otherwise to prevent a material adverse effect affecting either take or commit to take any actions that would limit the freedom of such Party, its subsidiaries (including subsidiaries of Parent after the Closing) or their Affiliates with respect to, or their ability to retain, one or more of their respective business and operations from occurring prior to the Effective Time businesses, product lines or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(cassets).
(iiib) In connection with and without limiting the event that foregoing Section 6.5(a), each of Parent and the Company shall give (or shall cause the Parent Subsidiaries or the Company Subsidiaries, respectively, to give) any Party shall fail notices to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable effortsThird Parties. Each of the parties hereto will, and shall take cause their respective Affiliates to, furnish to the other parties hereto such necessary information and reasonable assistance as such other parties may reasonably request in connection with the preparation of any required applications, notices, registrations and requests as may be required or advisable to be filed with any Governmental Authority and will reasonably cooperate in responding to any inquiry from a Governmental Authority, including promptly informing the other parties of such inquiry, consulting in advance with such other parties before making any presentations or submissions to a Governmental Authority, and supplying the other parties with copies of all material correspondence, filings or communications with any Governmental Authority with respect to this Agreement, the Mergers or the other transactions contemplated by this Agreement. To the extent reasonably practicable, the parties hereto or their respective Representatives shall have the right to review in advance and to consult on, all the information relating to the other and each of their Affiliates that appears in any filing made with, or written materials submitted to, any Governmental Authority in connection with this Agreement, the Mergers or the other transactions contemplated by this Agreement, except that confidential competitively sensitive business information may be redacted from such exchanges. To the extent reasonably practicable, no party hereto shall (nor shall permit its respective Representatives to) participate independently in any meeting or engage in any substantive conversation with any Governmental Authority in respect of any filing, investigation or other inquiry without giving the other parties hereto prior notice of such meeting or conversation and, to the extent permitted by applicable Law, without giving such other parties the opportunity to attend or participate (whether by telephone, electronically or in person) in any such actions reasonably requested meeting with such Governmental Authority. Notwithstanding the foregoing, obtaining any approval or consent from any Third Party that is not a Governmental Authority pursuant to this Section 6.5 shall not be considered a condition to the obligations of Parent, REIT Merger Sub and Partnership Merger Sub to consummate the Mergers unless otherwise expressly stated in Article VII.
(c) Notwithstanding anything to the contrary in this Agreement, in connection with obtaining any approval or consent from any Person (other than any Governmental Authority) with respect to the Mergers and the other transactions contemplated by this Agreement, none of the parties hereto or any other Party, to limit the adverse effect upon OTE and TetriDyn, and of their respective subsidiaries and their respective businessesAffiliates or Representatives shall be obligated to, resulting pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any accommodation or commitment or incur any liability or other obligation to such Person (unless expressly required by a written agreement that could reasonably was entered into prior to the date hereof with such Person). Subject to the immediately foregoing sentence, the parties shall cooperate with respect to reasonable accommodations that may be expected to result after the Effective Time, from the failure requested or appropriate to obtain such consentconsents.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matter.
Appears in 2 contracts
Samples: Merger Agreement (Global Net Lease, Inc.), Merger Agreement (Necessity Retail REIT, Inc.)
Appropriate Action; Consents; Filings. (a) OTE The Company and TetriDyn Parent shall use, and shall cause each of use their respective subsidiaries reasonable best efforts to use, all reasonable efforts to: (i) take, or cause to be taken, all appropriate action, action and do, or cause to be done, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise to consummate and make effective effective, the Merger and the other transactions contemplated by this Agreement; , including transactions under the Voting Agreements, as promptly as practicable, (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, authorizations or orders required to be obtained by Parent or made by OTE or TetriDyn the Company or any subsidiary of their respective Subsidiaries, or to avoid any action or proceeding by any Governmental Entity (including, those in connection with the HSR Act to the extent required), in connection with the authorization, execution, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, including the Merger; (iii) cause the satisfaction of all conditions set forth in Article 6, (iv) vigorously defend all lawsuits or other legal, regulatory or other proceedings to which it is a party challenging or affecting this Agreement or the consummation of the transactions contemplated by this Agreement, in each case until the issuance of a final, non-appealable order, (v) seek to have lifted or rescinded any injunction or restraining order which may adversely affect the ability of the parties to consummate the transactions contemplated hereby, in each case until the issuance of a final, non-appealable order, and (vi) as promptly as practicable, and in any event within 15 days after the date hereof, make or cause to be made all necessary applications and filings, and thereafter make any other required submissions, respecting and pay any fees due in connection therewith, with respect to this Agreement and the Merger required under: (1) under the Securities HSR Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided thatprovided, OTE that the Company and TetriDyn Parent shall cooperate with each other in connection with determining whether any action by or in respect of, or filing with, any Governmental Entity is required in connection with the consummation of the Merger and seeking any such actions, consents, approvals or waivers or making of all any such filings, including providing copies of all such documents to the other Party . The Company and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn Parent shall furnish to each other all information required for any application or other filing to be made pursuant to under the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement. No party to this Agreement shall consent to any voluntary delay of the Closing at the behest of any Governmental Entity without the consent of the other parties to this Agreement, which consent shall not be unreasonably withheld, delayed or conditioned. Parent will not, except as may be consented to in writing by the Company, directly or indirectly through one or more of its Affiliates, take any action, including acquiring or making any investment in any corporation, partnership, limited liability company or other business organization or any division or assets thereof, that would reasonably be expected to cause a material delay in the satisfaction of the conditions contained in Article 6 or the consummation of the Merger. Without limiting this Section 5.6(a), Parent agrees to use reasonable best efforts to take, or cause to be taken, any and all steps and to make, or cause to be made, any and all undertakings necessary to avoid or eliminate each and every impediment under any antitrust, merger control, competition, or trade regulation Law or any other Law applicable to Parent, the Company, any Company Subsidiary or the Merger that may be asserted by any Governmental Entity with respect to the Merger so as to enable the Effective Time and the Closing, respectively, to occur as promptly as practicable (and in any event, no later than the Extended Outside Date), but excluding (A) proposing, negotiating, committing to, and effecting, by consent decree, hold separate order, or otherwise, the sale, divestiture, licensing or disposition of such assets or businesses of Parent or the Company or any of their respective Subsidiaries or (B) accepting any operational or reporting restrictions or requirements, including restrictions on the ability to change rates or charges or standards of service, or otherwise taking or committing to take actions that limit Parent’s or any Parent Subsidiary’s freedom of action with respect to, or its ability to retain or freely operate, any of the assets, properties, licenses, rights, product lines, operations or businesses of Parent, the Company or any of their respective Subsidiaries, in each case whether or not required in order to avoid the commencement of any proceeding seeking, avoid the entry of, or to effect the lifting or dissolution of, any injunction, temporary restraining order, or other order in any suit or proceeding, and whether or not this would otherwise have the effect of preventing or delaying the Effective Time or the Closing, as applicable (with any of the foregoing referred to as a “Material Regulatory Restriction”).
(b) OTE and TetriDyn agree The Company shall give (or shall cause the Company Subsidiaries to cooperate respecting, give) any notices to cause each of their respective subsidiaries to cooperate respectingthird parties, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial actionuse, and cause the Company Subsidiaries to have vacateduse, liftedtheir reasonable best efforts to obtain any third party consents (i) necessary, reversed, proper or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of advisable to consummate the Merger or any and the other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative transactions under the Voting Agreements, or (ii) disclosed in the Company Disclosure Letter; provided, however that the Company and judicial appeal Parent shall coordinate and legislative action. OTE and TetriDyn also agree to take all cooperate in determining whether any actions, including the disposition of assets consents, approvals or the withdrawal waivers are required to be obtained from doing business parties to any Company Material Contracts in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the connection with consummation of the Merger and in seeking any such actions, consents, approvals or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and waivers. The Parent will use and cause their respective subsidiaries to use all reasonable best efforts to obtain any third-party consents: (1) necessary, proper, or advisable to consummate the transactions contemplated by this Agreement; (2) otherwise required under any contracts, licenses, leases, or other agreements in connection cooperate with the consummation all of the transactions contemplated hereby; or (3) required to prevent a material adverse effect affecting either of their respective business and operations from occurring prior to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) foregoing. In the event that any Party the Company shall fail to obtain any third-third party consent described in subsection (c)(ii) abovethis Section 5.6(b), such Party the Company shall use all its reasonable best efforts, and shall take any such actions reasonably requested by any the other Partyparty hereto, to limit the minimize any adverse effect upon OTE the Company and TetriDynParent, their respective Subsidiaries, and their respective subsidiaries and their respective businessesbusinesses resulting, resulting or that which could reasonably be expected to result result, after the Effective Time, as applicable, from the failure to obtain such consent.
(dc) OTE and TetriDyn shall promptly notify Without limiting the other ofgenerality of anything contained in this Section 5.6, each party hereto shall: (i) give the other parties prompt notice of the making or commencement of any material change in its current request, inquiry, investigation, action or future businesslegal proceeding by or before any Governmental Entity with respect to the Merger or any of the other transactions contemplated by this Agreement, assets, liabilities, financial condition, or results of operationsincluding transactions under the Voting Agreements; (ii) any complaints, investigations, or hearings (or communications indicating that keep the same may be contemplated) other parties informed as to the status of any Governmental Entities respecting its business such request, inquiry, investigation, action or the transactions contemplated herebylegal proceeding; and
(iii) promptly inform the institution other parties of any communication to or from the threat Federal Trade Commission, the Department of material litigation involving it Justice or any other Governmental Entity regarding the Merger. Each party hereto will consult and cooperate with the other parties and will consider in good faith the views of the other parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with the Merger, or any of its subsidiaries; the other transactions contemplated by this Agreement, including transactions under the Voting Agreements. In addition, except as may be prohibited by any Governmental Entity or (iv) by any event Law, in connection with any such request, inquiry, investigation, action or condition that might reasonably be expected to cause any legal proceeding, each party hereto will permit authorized representatives of its representations, warranties, covenants, or agreements set forth herein not the other parties to be true present at each meeting or conference relating to such request, inquiry, investigation, action or legal proceeding and correct at the Effective Time. As used to have access to and be consulted in the preceding sentenceconnection with any document, “material litigation” means opinion or proposal made or submitted to any caseGovernmental Entity in connection with such request, arbitrationinquiry, investigation, action or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matterproceeding.
Appears in 2 contracts
Samples: Merger Agreement (Micronetics Inc), Merger Agreement (Mercury Computer Systems Inc)
Appropriate Action; Consents; Filings. (a) OTE Upon the terms and TetriDyn shall usesubject to the conditions set forth in this Agreement, and shall cause each of their respective subsidiaries the Parties hereto shall use its reasonable best efforts to use, all reasonable efforts to: (i) take, or cause to be taken, all appropriate actionactions, and use its reasonable best efforts to do, or cause to be done, and to assist and cooperate with the other Parties in doing, all things consistent with applicable Law and reasonably necessary, proper, proper or advisable under applicable Laws or otherwise to consummate and make effective consummate, as promptly as practicable, the transactions contemplated by this Agreement; (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, or orders required to be obtained or made by OTE or TetriDyn or any subsidiary in connection with the authorization, executionTransactions, and delivery of this Agreement and the consummation none of the transactions contemplated hereby, including the Merger; (iii) make all necessary filings, and thereafter make Parties shall take any other required submissions, respecting this Agreement and the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal action or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required omit to take any action that would or could would reasonably be expected to have an OTE Material Adverse Effectprevent, and TetriDyn shall not be impair, make illegal or materially delay the Closing unless such action or omission is required by applicable Law. Without limiting the foregoing, each of the Parties agrees to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.use its respective reasonable best efforts to:
(i) OTE and TetriDyn shall give any notices cause the Closing conditions set forth in Article VIII to third parties, and use and cause their respective subsidiaries to use be satisfied as promptly as practicable,
(ii) obtain all reasonable efforts to necessary Regulatory Approvals,
(iii) obtain any third-party consents: (1) necessary, proper, or advisable to consummate the transactions contemplated by this Agreement; (2) otherwise required under any contracts, all necessary licenses, leasesconsents, approvals, registrations, qualifications, Orders, waivers, finding of suitability and authorizations of, actions or other agreements nonactions by, any Governmental Authority or any third party necessary in connection with the consummation of the transactions contemplated herebyby this Agreement (other than Section 2.3, except to the extent provided in Section 2.3(h)),
(iv) make all necessary applications, registrations, declarations and filings with, and notices to, any Governmental Authorities and take all reasonable steps as may be necessary to obtain all approvals from, or to avoid any suit, action, Proceeding or investigation by, any Governmental Authority or other Persons necessary in connection with the consummation of the transactions contemplated by this Agreement (other than Section 2.3, except to the extent provided in Section 2.3(h)),
(v) to the extent named as a defendant, defend any lawsuits or other legal Proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated by this Agreement (other than Section 2.3, except to the extent provided in Section 2.3(h)),
(vi) in the case of the Seller, the Purchaser and their respective Subsidiaries only, have vacated, lifted, reversed or overturned any Order, decree, ruling, judgment, injunction or other action (whether temporary, preliminary or permanent) that is then in effect and that enjoins, restrains, conditions, makes illegal or otherwise restricts or prohibits the consummation of the transactions contemplated by this Agreement (other than Section 2.3, except to the extent provided in Section 2.3(h)); provided, that in no event shall the Seller, the Purchaser, the Seller Parties or (3) any of their Subsidiaries be required to prevent a material adverse effect affecting either of their respective business and operations from occurring pay or to commit to, prior to the Effective Time Closing, any fee, penalty or a TetriDyn Material Adverse Effect from occurring after other consideration to obtain any consent, approval, Order, waiver or authorization in connection with the Effective Timetransactions contemplated by this Agreement (other than Section 2.3, except to the extent provided in Section 2.3(h)) under any Contract other than filing fees required and de minimis amounts and customary filing fees payable to Governmental Authorities; and
(vii) execute and deliver any additional instruments and/or separate agreements necessary to consummate the Transactions to be performed or consummated by such Party in accordance with the terms of this Agreement and to carry out fully the purposes of this Agreement.
(iib) OTE Subject to applicable Law, each of the Parties hereto shall furnish to each other such necessary information and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release assistance as the other may request in connection with the preparation of any guarantees required filings or submissions with any Governmental Authority and will reasonably cooperate in responding to any inquiry from a Governmental Authority, including promptly informing the other party of such inquiry, consulting in advance before making any presentations or submissions to a Governmental Authority, and supplying each other with copies of all material correspondence, filings or communications with any Governmental Authority with respect to this Agreement (other than private or personal information pertaining to any individual applicants which may remain confidential). No Party shall have any material communication or meeting (telephonic or in-person) regarding the Transactions with a Governmental Authority without giving the Purchaser and the Seller a reasonable opportunity to attend in person or by any owner of TetriDyn of any third-party indebtedness phone (unless the Governmental Authority prohibits such participation or obligation that will not be paid, discharged, attendance in the communication or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(cmeeting).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matter.
Appears in 2 contracts
Samples: Share and Asset Purchase Agreement (Yahoo Inc), Share and Asset Purchase Agreement (Alibaba Group Holding LTD)
Appropriate Action; Consents; Filings. (a) OTE The Seller and TetriDyn MDEX shall use, and shall cause each of use their respective subsidiaries reasonable best efforts to use, all reasonable efforts to: (i) take, or cause to be taken, all appropriate action, and do, or cause to be done, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise to consummate and make effective the transactions contemplated by this Agreement; , (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, authorizations or orders required to be obtained or make any filings with or notifications or submissions to any Governmental Entity (other than described in the following clause (iii)) required to be made by OTE the Seller or TetriDyn or any subsidiary MDEX in connection with the authorization, execution, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, including including, without limitation, the Merger; Acquisition, (iii) make all necessary filings, and thereafter make any other required submissions, respecting with respect to this Agreement and the Merger Acquisition, required under: under (1A) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; , and (2B) any other applicable Law; provided that, OTE that the Seller and TetriDyn MDEX shall cooperate with each other in connection with the making of all such filingsfilings and submissions. Each of the Seller and MDEX, including providing copies of all such documents upon request, shall furnish to the other Party and to any Governmental Entity all information concerning itself and its advisers prior to subsidiaries, directors, officers and stockholders and such filings andother matters as may be reasonably necessary, if requested, shall accept all reasonable additions, deletions, advisable or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing or submission to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE The Seller and TetriDyn MDEX agree to cooperate respecting, with respect to cause each of their respective subsidiaries to cooperate respecting, and agree to use all their reasonable best efforts vigorously to contest and resist resist, any action, including legislative, administrative, administrative or judicial action, and to have vacated, lifted, reversed, reversed or overturned any decree, judgment, injunction, injunction or other order (whether temporary, preliminary, preliminary or permanent) (an “Order”) of any Court or other Governmental Entity that is in effect and that restricts, prevents, prevents or prohibits the consummation of the Merger Acquisition or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE Each of the Seller and TetriDyn MDEX shall give any notices to third partiesPersons, and use and cause their respective subsidiaries to use all reasonable best efforts to obtain any third-party consents: third Persons consents (1A) necessary, proper, proper or advisable to consummate the transactions contemplated by this Agreement; , (2B) otherwise required under any contracts, licenses, leases, leases or other agreements in connection with the consummation of the transactions contemplated hereby; hereby or (3C) required to prevent a material adverse effect affecting either of their respective business and operations from occurring prior to the Effective Time Company Material Adverse Effect or a TetriDyn MDEX Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party party shall fail to obtain any third-party third Person consent described in subsection (c)(iic)(i) above, such Party party shall use all its reasonable best efforts, and shall take any such actions reasonably requested by any the other Partyparties, to limit the adverse effect upon OTE the Seller and TetriDyn, MDEX and their respective subsidiaries and their respective businessesbusinesses resulting, resulting or that which could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE Nothing in this Agreement shall require MDEX to agree to, or permit the Seller to agree to, the imposition of conditions, the payment of any amounts or any requirement of divestiture to obtain any Approval, and TetriDyn in no event shall any party take, or be required to take, any action that would or could reasonably be expected to have a Company Material Adverse Effect or a MDEX Material Adverse Effect.
(e) Each of the Seller and MDEX shall promptly notify the other of: of (i) any material change in its current or future business, assets, liabilities, financial condition, condition or results of operations; , (ii) any complaints, investigations, investigations or hearings (or communications indicating that the same may be contemplated) of any Court or Governmental Entities respecting its business or with respect to the transactions contemplated hereby; hereby or its business, (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; it, or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, covenants or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matter.
Appears in 2 contracts
Samples: Acquisition Agreement (Madison Technologies Inc.), Acquisition Agreement (Madison Technologies Inc.)
Appropriate Action; Consents; Filings. (a) OTE Upon the terms and TetriDyn subject to the conditions set forth in this Agreement, each of the Company Parties and each of the Parent Parties shall use, and shall cause each of their respective subsidiaries the other Company Entities and the other Parent Entities, respectively, to use, all use its reasonable best efforts to: (i) to take, or cause to be taken, all appropriate actionactions, and to do, or cause to be done, and to assist and cooperate with the other party in doing, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise pursuant to any contract or agreement to consummate and make effective effective, as promptly as practicable, the transactions contemplated by this Agreement; (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, or orders required to be obtained or made by OTE or TetriDyn or any subsidiary in connection with the authorization, execution, and delivery of this Agreement Mergers and the consummation of the transactions contemplated hereby, including the Merger; (iii) make all necessary filings, and thereafter make any other required submissions, respecting this Agreement and the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing (i) the taking of all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree actions necessary to take all actions, including cause the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition conditions to Closing not set forth in Article VII to be satisfied; provided, however(ii) the obtaining of all necessary actions or nonactions, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effectwaivers, consents and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable to consummate the transactions contemplated by this Agreement; (2) otherwise required under any contracts, licenses, leases, approvals from Governmental Authorities or other agreements Persons necessary in connection with the consummation of the Mergers and the other transactions contemplated hereby; or by this Agreement and the making of all necessary registrations and filings (3including filings with Governmental Authorities, if any) required to prevent a material adverse effect affecting either and the taking of their respective business and operations from occurring prior to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts steps as may be necessary to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness an approval or obligation that will not be paid, dischargedwaiver from, or otherwise satisfied at to avoid an action or proceeding by, any Governmental Authority or other Persons necessary in connection with the Effective Time, excluding consummation of the obligations to SICOG Mergers and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; by this Agreement, (iii) the institution defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the threat consummation of the Mergers or the other transactions contemplated by this Agreement, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed, the avoidance of each and every impediment under any antitrust, merger control, competition or trade regulation Law that may be asserted by any Governmental Authority with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible, and (iv) the execution and delivery of any additional instruments necessary to consummate the Mergers and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement.
(b) In connection with and without limiting the foregoing, each of the Parent Parties and the Company Parties shall give (or shall cause the other Parent Entities or the other Company Entities, respectively, to give) any notices to Third Parties, and each of the Parent Parties and the Company Parties shall use, and cause each of their respective Affiliates to use, its reasonable best efforts to obtain any Third Party consents not covered by Section 6.7(a) that are necessary, proper or advisable to consummate the Mergers. Each of the parties hereto will furnish to the other such necessary information and reasonable assistance as the other may 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 promptly informing the other parties of such inquiry, consulting in advance before making any presentations or submissions to a Governmental Authority, and supplying each other with copies of all material litigation involving it correspondence, filings or communications between either party and any Governmental Authority with respect to this Agreement. To the extent reasonably practicable, the parties or their Representatives shall have the right to review in advance and each of the parties will consult the others on, all the information relating to the other and each of their Affiliates that appears in any filing made with, or written materials submitted to, any Governmental Authority in connection with the Mergers and the other transactions contemplated by this Agreement, except that confidential competitively sensitive business information may be redacted from such exchanges. To the extent reasonably practicable, none of the parties hereto shall, nor shall they permit their respective Representatives to, participate independently in any meeting or engage in any substantive conversation with any Governmental Authority in respect of any filing, investigation or other inquiry without giving the other party prior notice of such meeting or conversation and, to the extent permitted by applicable Law, without giving the other parties the opportunity to attend or participate (whether by telephone or in person) in any such meeting with such Governmental Authority. Notwithstanding the foregoing, obtaining any approval or consent from any third party pursuant to this Section 6.7(b) shall not be a condition to the obligations of Parent and Merger Sub to consummate the Mergers.
(c) Notwithstanding anything to the contrary in this Agreement, in connection with obtaining any approval or consent from any Person (other than any Governmental Authority) with respect to the Mergers, none of the parties hereto, any of the other Company Entities or any of its subsidiaries; the other Parent Entities, or (iv) any event or condition that might reasonably be expected to cause any of its representationsthe their respective Representatives, warranties, covenants, shall be obligated to pay or agreements set forth herein not commit to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means pay to such Person whose approval or consent is being solicited any case, arbitration, or adversary proceeding cash or other matter consideration, make any accommodation or commitment or incur any liability or other obligation to such Person (unless expressly required by a written agreement that is material was entered into prior to the business and operations of the subject entity, if in existence on the date hereof, hereof with such Person). The parties shall cooperate with respect to accommodations that may be requested or for which the legal fees and other costs appropriate to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matterobtain such consents.
Appears in 2 contracts
Samples: Merger Agreement (American Realty Capital Trust III, Inc.), Merger Agreement (American Realty Capital Properties, Inc.)
Appropriate Action; Consents; Filings. (a) OTE Upon the terms and TetriDyn subject to the conditions set forth in this Agreement, the Company and each of the Parent Parties shall use, and shall cause each of their respective subsidiaries the other Company Entities and the other Parent Entities, respectively, to use, all use its reasonable best efforts to: (i) to take, or cause to be taken, all appropriate actionactions, and to do, or cause to be done, and to assist and cooperate with the other party in doing, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise pursuant to any contract or agreement to consummate and make effective effective, as promptly as practicable, the transactions contemplated by this Agreement; (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, or orders required to be obtained or made by OTE or TetriDyn or any subsidiary in connection with the authorization, execution, and delivery of this Agreement Mergers and the consummation of the transactions contemplated hereby, including the Merger; (iii) make all necessary filings, and thereafter make any other required submissions, respecting this Agreement and the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing (i) the taking of all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree actions necessary to take all actions, including cause the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition conditions to Closing not set forth in Article VII to be satisfied; provided, however(ii) the obtaining of all necessary actions or nonactions, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effectwaivers, consents (including the Lender Consents) and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable to consummate the transactions contemplated by this Agreement; (2) otherwise required under any contracts, licenses, leases, approvals from Governmental Authorities or other agreements Persons necessary in connection with the consummation of the Mergers and the other transactions contemplated hereby; by this Agreement and the making of all necessary registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authority or other Persons necessary in connection with the consummation of the Mergers and the other transactions contemplated by this Agreement (3including promptly responding to all requests by a Governmental Authority or other Person for additional information in support of any such filing or request for approval or waiver), (iii) required the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Mergers or the other transactions contemplated by this Agreement, including seeking to prevent a material adverse effect affecting either have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed, the avoidance of each and every impediment under any antitrust, merger control, competition or trade regulation Law that may be asserted by any Governmental Authority with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible, and (iv) the execution and delivery of any additional instruments necessary to consummate the Mergers and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement.
(b) In connection with and without limiting the foregoing, each of the Parent Parties and the Company shall give (or shall cause the other Parent Entities or the other Company Entities, respectively, to give) any notices to Third Parties, and each of the Parent Parties and the Company shall use, and cause each of their respective business and operations from occurring prior Affiliates to use, its reasonable best efforts to obtain any Third Party consents not covered by Section 6.6(a) that are necessary, proper or advisable to consummate the Mergers. Each of the parties hereto will furnish to the Effective Time other such necessary information and reasonable assistance as the other may request in connection with the preparation of any required governmental filings or submissions and will cooperate in responding to any inquiry from a TetriDyn Material Adverse Effect Governmental Authority, including promptly informing the other parties of such inquiry, consulting in advance before making any presentations or submissions to a Governmental Authority, and supplying each other with copies of all material correspondence, filings or communications between either party and any Governmental Authority with respect to this Agreement. To the extent reasonably practicable, the parties or their Representatives shall have the right to review in advance and each of the parties will consult the others on, all the information relating to the other and each of their Affiliates that appears in any filing made with, or written materials submitted to, any Governmental Authority in connection with the Mergers and the other transactions contemplated by this Agreement, except that confidential competitively sensitive business information may be redacted from occurring after such exchanges. To the Effective Timeextent reasonably practicable, none of the parties hereto shall, nor shall they permit their respective Representatives to, participate independently in any meeting or engage in any substantive conversation with any Governmental Authority in respect of any filing, investigation or other inquiry without giving the other party prior notice of such meeting or conversation and, to the extent permitted by applicable Law, without giving the other parties the opportunity to attend or participate (whether by telephone or in person) in any such meeting with such Governmental Authority. Notwithstanding the foregoing, obtaining any approval or consent from any third party pursuant to this Section 6.6(b) shall not be a condition to the obligations of Parent and Merger Sub to consummate the Merger.
(iic) OTE In connection with obtaining the Lender Consents, and TetriDyn without limitation of the foregoing, the Parent Parties shall, and Parent shall use cause the other Parent Entities to, furnish such information and cause their respective subsidiaries provide such assistance to, and otherwise cooperate with, the Company, in each case, as the Company may reasonably request, in connection with any actions contemplated to use all reasonable efforts be taken by the Company with respect to obtaining the Lender Consents, including by agreeing to provide, from and after the Closing, customary non-recourse carve-out or “bad boy,” guaranties with respect to events that are customarily the subject of such guaranties. The Parent Parties agree that the Company shall be expressly entitled to incur and pay any customary fees and expenses reasonably necessary to obtain release the Lender Consents. Notwithstanding the foregoing, Parent may elect to exclude any Lender Consent from the provisions of any guarantees by any owner this Section 6.6(c); provided, that the amount of TetriDyn of any third-party indebtedness or obligation that will Indebtedness to which such excluded Lender Consent relates shall not be paid, discharged, or otherwise satisfied at applied toward the Effective Time, excluding the obligations to SICOG and EIDC as threshold set forth in subsection 5.12(cSection 2.2(a).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify Notwithstanding anything to the contrary in this Agreement, in connection with obtaining any approval or consent from any Person (other than any Governmental Authority) with respect to the Merger, none of the parties hereto, any of the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Company Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; the other Parent Entities, or (iv) any event or condition that might reasonably be expected to cause any of its representationsthe their respective Representatives, warranties, covenants, shall be obligated to pay or agreements set forth herein not commit to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means pay to such Person whose approval or consent is being solicited any case, arbitration, or adversary proceeding cash or other matter consideration, make any accommodation or commitment or incur any liability or other obligation to such Person (unless expressly required by a written agreement that is material was entered into prior to the business and operations of the subject entitydate hereof with such Person), if in existence on the date hereof, unless such party is promptly reimbursed for such payment. The parties shall cooperate with respect to accommodations that may be requested or for which the legal fees and other costs appropriate to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matterobtain such consents.
Appears in 2 contracts
Samples: Merger Agreement (Ventas Inc), Merger Agreement (American Realty Capital Healthcare Trust Inc)
Appropriate Action; Consents; Filings. (a) OTE Upon the terms and TetriDyn subject to the conditions set forth in this Agreement (including those contained in this Section 5.5), except with respect to compliance with ISRA, which shall usebe governed by Section 5.5(c) in all respects, each of the parties hereto shall, and shall cause each of their respective subsidiaries its Subsidiaries to, use its reasonable best efforts to use, all reasonable efforts to: (i) take, or cause to be taken, all appropriate actionactions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper, or advisable under applicable Laws or otherwise to consummate and make effective effective, and to satisfy all conditions to, in the most expeditious manner practicable (and in any event no later than the End Date), the Merger and the other transactions contemplated by this Agreement, including: (i) the obtaining of all necessary Governmental Authorizations, waivers, and actions or nonactions from Governmental Entities and the making of all necessary registrations, filings, and notifications (including filings with Governmental Entities) and the taking of all steps as may be necessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Entities; (ii) the obtaining of all necessary consents or waivers from third parties; and (iii) the execution and delivery of any additional instruments necessary to consummate the Merger and to fully carry out the purposes of this Agreement. The Company, Parent Group Member and Parent shall, and Parent shall use its commercially reasonable efforts to cause Guarantor to, subject to applicable Law, promptly: (A) reasonably cooperate and coordinate with the other parties in the taking of the actions contemplated by clauses (i), (ii), and (iii) immediately above; and (B) supply the other parties with any information that may be reasonably required in order to effectuate the taking of such actions. Each party hereto shall promptly inform the other party or parties hereto, as the case may be, of any communication from any Governmental Entity regarding any of the transactions contemplated by this Agreement; (ii) obtain . If the Company, on the one hand, or Parent Group Member, Parent or Merger Sub, on the other hand, receives a request for additional information or documentary material from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, or orders required Entity with respect to be obtained or made by OTE or TetriDyn or any subsidiary in connection with the authorization, execution, and delivery of this Agreement and the consummation of the transactions contemplated herebyby this Agreement, including the Merger; (iii) make all necessary filingsthen it shall use reasonable best efforts to make, or cause to be made, as soon as reasonably practicable and thereafter make any other required submissions, respecting this Agreement and the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other in connection after consultation with the making of all other party, an appropriate response in compliance with such filingsrequest, including providing copies of all such documents to the other Party and its advisers prior to such filings and, if requestedpermitted by applicable Law and by any applicable Governmental Entity, shall accept all reasonable additions, deletions, or changes suggested provide the other party’s counsel with advance notice and the opportunity to attend and participate in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations meeting with any Governmental Entity in respect of any applicable Law filing made thereto in connection with the transactions contemplated by this Agreement.
(b) OTE Without limiting the generality of the undertakings pursuant Section 5.5(a) hereof, the parties hereto shall, as applicable: (i) provide or cause to be provided as promptly as reasonably practicable to Governmental Entities with jurisdiction over the Antitrust Laws (each such Governmental Entity, a “Governmental Antitrust Authority”) information and TetriDyn agree to cooperate respectingdocuments requested by any Governmental Antitrust Authority as necessary, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrativeproper, or judicial action, and advisable to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the permit consummation of the Merger or any other transactions contemplated by this Agreement; and (ii) subject to the terms set forth in Section 5.5(a) hereof and except with respect to compliance with ISRA, which shall be governed by Section 5.5(c) in all respects, use their reasonable best efforts to take such actions as are necessary or advisable to obtain prompt approval of the consummation of the transactions contemplated by this Agreement by any Governmental Entity or expiration of applicable waiting periods.
(c) The Company and Parent acknowledge that the Merger and the other Transactions contemplated by this Agreement is subject to the requirements of ISRA, and the regulations issued thereunder, with respect to the Bxxx Lake Facility. The Company hereby covenants and agrees to use commercially reasonable measures to comply with ISRA and SRRA, as may be applicable, and agrees to retain a New Jersey Licensed Site Remediation Professional, as defined in the SRRA and the regulations promulgated thereunder (“LSRP”) to complete any required ISRA and SRRA filings with the New Jersey Department of Environmental Protection (“NJDEP”) to achieve ISRA Compliance (defined herein). “ISRA Compliance” shall mean (i) the issuance of a Response Action Outcome of any kind, including a Restricted Use Response Action Outcome or a Limited Restricted Use Response Action Outcome by vigorously pursuing all available avenues the Company’s LSRP; or (ii) the approval by the NJDEP of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actionsa de minimis quantity exemption, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities each case as a condition applicable to the granting Company’s lease of any approvals required and operations at the Bxxx Lake Facility. Within ten (10) Business Days of signing the Agreement, the Company’s LSRP shall file a General Information Notice with NJDEP for the Bxxx Lake Facility. The Company will then implement commercially reasonable measures to diligently pursue ISRA Compliance. If the Company does not achieve ISRA Compliance prior to Closing, the Company agrees to use commercially reasonable measures to complete and duly file on or before Closing (i) a Remediation Certification in order accordance with N.J.A.C. 7:26B-3.3, and, if required, establish a Remediation Funding Source (as such terms are defined under ISRA) and file an RFS/FA form to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable to consummate the transactions contemplated by this Agreement; Agreement or (2ii) otherwise required under such other ISRA filing which authorizes the Company to complete this transaction (“Closing Approval”) without having first achieved ISRA Compliance. Parent Group Member and Parent shall and shall cause its Subsidiaries and Representatives to provide any contracts, licenses, leases, or other agreements commercially reasonable cooperation and to take commercially reasonable actions as reasonably requested by the Company in writing in connection with the consummation of ISRA Compliance for the transactions contemplated hereby; or (3) required to prevent a material adverse effect affecting either of their respective business and operations from occurring Bxxx Lake Facility or, if the Company does not achieve ISRA Compliance for the Bxxx Lake Facility prior to Closing, the Effective Time or a TetriDyn Material Adverse Effect from occurring after Closing Approval. Notwithstanding anything to the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paidcontrary contained herein, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as covenants set forth in subsection 5.12(cthis Section 5.5(c) shall be the sole covenants with respect to matters contained in this Section 5.5(c).
(iii) In the event that any Party shall fail , including with respect to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business ISRA Compliance or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matterClosing Approval.
Appears in 2 contracts
Samples: Merger Agreement (Emcore Corp), Merger Agreement (Emcore Corp)
Appropriate Action; Consents; Filings. (a) OTE The Company and TetriDyn HUWX shall use, and shall cause each of use their respective subsidiaries reasonable best efforts to use, all reasonable efforts to: (i) take, or cause to be taken, all appropriate action, and do, or cause to be done, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise to consummate and make effective the transactions contemplated by this Agreement; , (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, authorizations or orders required to be obtained or make any filings with or notifications or submissions to any Governmental Entity (other than described in the following clause (iii)) required to be made by OTE the Company or TetriDyn or any subsidiary HUWX in connection with the authorization, execution, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby, including including, without limitation, the Merger; Acquisition, (iii) make all necessary filings, and thereafter make any other required submissions, respecting with respect to this Agreement and the Merger Acquisition, required under: under (1A) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; , and (2B) any other applicable Law; provided that, OTE that the Company and TetriDyn HUWX shall cooperate with each other in connection with the making of all such filingsfilings and submissions. Each of the Company and HUWX, including providing copies of all such documents upon request, shall furnish to the other Party and to any Governmental Entity all information concerning itself and its advisers prior to subsidiaries, directors, officers and stockholders and such filings andother matters as may be reasonably necessary, if requested, shall accept all reasonable additions, deletions, advisable or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing or submission to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE The Company and TetriDyn HUWX agree to cooperate respecting, with respect to cause each of their respective subsidiaries to cooperate respecting, and agree to use all their reasonable best efforts vigorously to contest and resist resist, any action, including legislative, administrative, administrative or judicial action, and to have vacated, lifted, reversed, reversed or overturned any decree, judgment, injunction, injunction or other order (whether temporary, preliminary, preliminary or permanent) (an “Order”) of any Court or other Governmental Entity that is in effect and that restricts, prevents, prevents or prohibits the consummation of the Merger Acquisition or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE Each of the Company and TetriDyn HUWX shall give any notices to third partiesPersons, and use and cause their respective subsidiaries to use all reasonable best efforts to obtain any third-party consents: third Persons consents (1A) necessary, proper, proper or advisable to consummate the transactions contemplated by this Agreement; , (2B) otherwise required under any contracts, licenses, leases, leases or other agreements in connection with the consummation of the transactions contemplated hereby; hereby or (3C) required to prevent a material adverse effect affecting either of their respective business and operations from occurring prior to the Effective Time Company Material Adverse Effect or a TetriDyn HUWX Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party party shall fail to obtain any third-party third Person consent described in subsection (c)(iic)(i) above, such Party party shall use all its reasonable best efforts, and shall take any such actions reasonably requested by any the other Partyparties, to limit the adverse effect upon OTE the Company and TetriDyn, HUWX and their respective subsidiaries and their respective businessesbusinesses resulting, resulting or that which could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE Nothing in this Agreement shall require HUWX to agree to, or permit the Company to agree to, the imposition of conditions, the payment of any amounts or any requirement of divestiture to obtain any Approval, and TetriDyn in no event shall any party take, or be required to take, any action that would or could reasonably be expected to have a Company Material Adverse Effect or a HUWX Material Adverse Effect.
(e) Each of the Company and HUWX shall promptly notify the other of: of (i) any material change in its current or future business, assets, liabilities, financial condition, condition or results of operations; , (ii) any complaints, investigations, investigations or hearings (or communications indicating that the same may be contemplated) of any Court or Governmental Entities respecting its business or with respect to the transactions contemplated hereby; hereby or its business, (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; it, or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, covenants or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, arbitration or adversary proceeding or other matter that is material which would have been required to be disclosed on the business and operations Company Disclosure Letter pursuant to Section 7.02 of the subject entityHUWX Disclosure Letter pursuant to Section 5.10, as the case may be, if in existence on the date hereof, or for in respect of which the legal fees and other costs to TetriDyn the Company might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 50,000 over the life of the matter.
Appears in 2 contracts
Samples: Acquisition Agreement (Processa Pharmaceuticals, Inc.), Acquisition Agreement (Heatwurx, Inc.)
Appropriate Action; Consents; Filings. (a) OTE Upon the terms and TetriDyn subject to the conditions set forth in this Agreement, each of the Company and Parent shall use, and shall cause each of their respective subsidiaries the Company Subsidiaries and the Parent Subsidiaries, respectively, to use, all use its reasonable best efforts to: (i) to take, or cause to be taken, all appropriate actionactions, and to do, or cause to be done, and to assist and cooperate with the other party in doing, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise pursuant to any contract or agreement to consummate and make effective effective, as promptly as practicable, the transactions contemplated by this Agreement; (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, or orders required to be obtained or made by OTE or TetriDyn or any subsidiary in connection with the authorization, execution, and delivery of this Agreement Merger and the consummation of the transactions contemplated hereby, including the Merger; (iii) make all necessary filings, and thereafter make any other required submissions, respecting this Agreement and the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing (i) the taking of all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree actions necessary to take all actions, including cause the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition conditions to Closing not set forth in Article VII to be satisfied; provided, however(ii) the obtaining of all necessary actions or nonactions, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effectwaivers, consents and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable to consummate the transactions contemplated by this Agreement; (2) otherwise required under any contracts, licenses, leases, approvals from Governmental Authorities or other agreements Persons necessary in connection with the consummation of the Merger and the other transactions contemplated hereby; or by this Agreement and the making of all necessary registrations and filings (3including filings with Governmental Authorities, if any) required to prevent a material adverse effect affecting either and the taking of their respective business and operations from occurring prior to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts steps as may be necessary to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness an approval or obligation that will not be paid, dischargedwaiver from, or otherwise satisfied at to avoid an action or proceeding by, any Governmental Authority or other Persons necessary in connection with the Effective Time, excluding consummation of the obligations to SICOG Merger and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; by this Agreement, (iii) the institution defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the threat consummation of the Merger or the other transactions contemplated by this Agreement, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed, the avoidance of each and every impediment under any antitrust, merger control, competition or trade regulation Law that may be asserted by any Governmental Authority with respect to the Merger so as to enable the Closing to occur as soon as reasonably possible, and (iv) the execution and delivery of any additional instruments necessary to consummate the Merger and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement.
(b) In connection with and without limiting the foregoing, each of Parent and the Company shall give (or shall cause the Parent Subsidiaries or the Company Subsidiaries, respectively, to give) any notices to Third Parties, and each of Parent and the Company shall use, and cause each of their respective Affiliates to use, its reasonable best efforts to obtain any Third Party consents not covered by Section 6.6(a) that are necessary, proper or advisable to consummate the Merger. Each of the parties hereto will furnish to the other such necessary information and reasonable assistance as the other may 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 promptly informing the other party of such inquiry, consulting in advance before making any presentations or submissions to a Governmental Authority, and supplying each other with copies of all material litigation involving it correspondence, filings or communications between either party and any Governmental Authority with respect to this Agreement. To the extent reasonably practicable, the parties or their Representatives shall have the right to review in advance and each of the parties will consult the others on, all the information relating to the other and each of their Affiliates that appears in any filing made with, or written materials submitted to, any Governmental Authority in connection with the Merger and the other transactions contemplated by this Agreement, except that confidential competitively sensitive business information may be redacted from such exchanges. To the extent reasonably practicable, neither the Company nor Parent shall, nor shall they permit their respective Representatives to, participate independently in any meeting or engage in any substantive conversation with any Governmental Authority in respect of any filing, investigation or other inquiry without giving the other party prior notice of such meeting or conversation and, to the extent permitted by applicable Law, without giving the other party the opportunity to attend or participate (whether by telephone or in person) in any such meeting with such Governmental Authority. Notwithstanding the foregoing, obtaining any approval or consent from any third party pursuant to this Section 6.6(b) shall not be a condition to the obligations of Parent and Merger Sub to consummate the Merger.
(c) Notwithstanding anything to the contrary in this Agreement, in connection with obtaining any approval or consent from any Person (other than any Governmental Authority) with respect to the Merger, none of the Company, Parent, any of the Company Subsidiaries, any of the Parent Subsidiaries or any of its subsidiaries; the their respective Representatives, shall be obligated to pay or (iv) commit to pay to such Person whose approval or consent is being solicited any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding cash or other matter consideration, make any accommodation or commitment or incur any liability or other obligation to such Person. The parties shall cooperate with respect to accommodations that is material may be requested or appropriate to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matterobtain such consents.
Appears in 2 contracts
Samples: Merger Agreement (American Realty Capital Trust, Inc.), Merger Agreement (Realty Income Corp)
Appropriate Action; Consents; Filings. (a) OTE Upon the terms and TetriDyn subject to the conditions set forth in this Agreement, each of Company and Parent shall use, and shall cause each of the Company Subsidiaries and the Parent Subsidiaries, respectively, and their respective subsidiaries Affiliates, to use, all use its reasonable best efforts to: (i) to take, or cause to be taken, all appropriate actionactions, and to do, or cause to be done, and to assist and cooperate with the other Party in doing, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise pursuant to any contract or agreement to consummate and make effective effective, as promptly as practicable, the transactions contemplated by this Agreement; (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, or orders required to be obtained or made by OTE or TetriDyn or any subsidiary in connection with the authorization, execution, and delivery of this Agreement Merger and the consummation of the transactions contemplated hereby, including the Merger; (iii) make all necessary filings, and thereafter make any other required submissions, respecting this Agreement and the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including (i) the taking of all actions necessary to cause the conditions to Closing set forth in Article 8 to be satisfied, (ii) the obtaining of all necessary or advisable actions or nonactions, waivers, consents and approvals from Governmental Authorities or other Persons necessary in connection with the consummation of the Merger and the other transactions contemplated by vigorously pursuing this Agreement and the making of all available avenues necessary or advisable registrations and filings (including filings with Governmental Authorities, if any) and the taking of administrative all reasonable steps as may be necessary or advisable to obtain an approval or waiver from, or to avoid an action or proceeding by, any Governmental Authority or other Persons necessary in connection with the consummation of the Merger and judicial appeal and legislative action. OTE and TetriDyn also agree the other transactions contemplated by this Agreement, (iii) subject to take all actionsSection 7.8(c), including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting defending of any approvals required in order to permit lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the Merger or as may be required to avoidthe other transactions contemplated by this Agreement, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected including seeking to have an OTE Material Adverse Effectany stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed, and TetriDyn shall not be required (iv) the execution and delivery of any additional instruments necessary or advisable to take any action that would or could reasonably be expected consummate the Merger and the other transactions contemplated by this Agreement and to have a TetriDyn Material Adverse Effectfully carry out the purposes of this Agreement.
(ib) OTE In connection with and TetriDyn without limiting the foregoing Section 7.7(a) or Sections 7.16 or 7.17, each of Parent and Company shall (or shall cause the Parent Subsidiaries or the Company Subsidiaries, respectively, to) use its reasonable best efforts to give any notices to third parties, and use each of Parent and Company shall use, and cause each of their respective subsidiaries Affiliates to use all use, its reasonable best efforts to obtain any third-third party consents: (1consents not covered by Section 7.7(a) that are necessary, proper, proper or advisable to consummate the Merger and the other transactions contemplated by this Agreement; (2) otherwise required under any contracts. Each of the Parties hereto will and shall cause their respective Affiliates to, licenses, leases, or furnish to the other agreements such necessary information and reasonable assistance as the other may reasonably request in connection with the consummation preparation of any required applications, notices, registrations and requests as may be required or advisable to be filed with any Governmental Authority and will cooperate in responding to any inquiry from a Governmental Authority, including promptly informing the other party of such inquiry, consulting in advance before making any presentations or submissions to a Governmental Authority, and supplying each other with copies of all material correspondence, filings or communications between either Party and any Governmental Authority with respect to this Agreement. To the extent reasonably practicable and permitted, the Parties or their Representatives shall have the right to review in advance and each of the Parties will consult the others on, all the information relating to the other and each of their Affiliates that appears in any filing made with, or written materials submitted to, any Governmental Authority in connection with the Merger and the other transactions contemplated hereby; or (3) required to prevent a material adverse effect affecting either of their respective by this Agreement, except that confidential competitively sensitive business information may be redacted from such exchanges. The Parties may, as they deem advisable and operations from occurring prior necessary, designate any sensitive materials provided to the Effective Time or a TetriDyn Material Adverse Effect from occurring after other under this Section 7.7 as “outside counsel only.” Such materials and the Effective Time.
(ii) OTE information contained therein shall be given only to outside counsel of the recipient and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paiddisclosed by such outside counsel to employees, dischargedofficers, directors or otherwise satisfied at trustees of the Effective Timerecipient without the advance written consent of the Party providing such materials. To the extent reasonably practicable, excluding neither Company nor Parent shall, nor shall they permit their respective Representatives to, participate independently in any meeting or engage in any substantive conversation with any Governmental Authority in respect of any filing, investigation or other inquiry without giving the obligations other Party prior notice of such meeting or conversation and, to SICOG and EIDC as set forth the extent permitted by applicable Law, without giving the other party the opportunity to attend or participate (whether by telephone or in subsection 5.12(c).
(iiiperson) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain meeting with such consentGovernmental Authority.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matter.
Appears in 2 contracts
Samples: Merger Agreement (Kite Realty Group, L.P.), Merger Agreement (Retail Properties of America, Inc.)
Appropriate Action; Consents; Filings. (a) OTE Upon the terms and TetriDyn subject to the conditions set forth in this Agreement, and without limiting the provisions of Section 6.3(b), each of the parties hereto shall use, (and shall cause each of its applicable Affiliates and Subsidiaries to) use their respective subsidiaries reasonable best efforts to use, all reasonable efforts to: (i) take, or cause to be taken, all appropriate actionactions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper, proper or advisable under applicable Laws to consummate, as promptly as practicable, the Merger and the other transactions contemplated by this Agreement. Without limiting the foregoing, each of the parties agrees to use its reasonable best efforts to (i) cause the conditions to the Merger set forth in Article VII to be satisfied as promptly as practicable, (ii) obtain all necessary consents, approvals, orders, waivers, finding of suitability and authorizations of, actions or otherwise to consummate and make effective non-actions by, any Governmental Authority (including Gaming Authorities) or any third party necessary in connection with the consummation of the transactions contemplated by this Agreement; (ii) obtain from , including the Merger, and make all necessary registrations, declarations and filings with, and notices to, any Governmental Entities Authorities (including pursuant to the HSR Act and any consents, licenses, permits, waivers, approvals, authorizationsother applicable Antitrust Law necessary to start any applicable waiting period and including under Gaming Laws) and take all reasonable steps as may be necessary to obtain an approval from, or orders required to be obtained avoid a suit, action, proceeding or made by OTE investigation by, any Governmental Authority or TetriDyn or any subsidiary other Persons necessary in connection with the authorizationconsummation of the transactions contemplated by this Agreement, executionincluding the Merger; provided, that, in no event shall the Company or any of its Subsidiaries be required to pay, prior to the Effective Time, any fee, penalty or other consideration to obtain any consent, approval, order, waiver or authorization in connection with the transactions contemplated by this Agreement, including the Merger, under any Contract other than de minimis amounts or amounts that are advanced or reimbursed substantially simultaneously by Parent, (iii) vigorously defend or contest any claims, lawsuits, actions or other legal proceedings, whether judicial or administrative and whether brought by a Governmental Authority or any third party, challenging this Agreement or that would otherwise prevent or materially impede, interfere with, hinder or delay the consummation of the Merger and the other transactions contemplated by this Agreement, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed, (iv) oppose any request by any Governmental Authority or any other person for any divestiture, hold separate condition, or any other restriction with respect to any assets, businesses, or product lines of either Parent or the Company, provided, however, that Parent and Merger Sub, subject to the limitations on Antitrust Divestiture Actions set forth in Section 6.3(b), shall use reasonable best efforts to ensure that the Merger closes before the Termination Date and to eliminate any impediments thereto, and delivery (v) execute and deliver any additional instruments necessary to consummate the Merger and any other transactions to be performed or consummated by such party in accordance with the terms of this Agreement and to carry out fully the purposes of this Agreement.
(b) Without limiting the general obligations of Parent or Merger Sub under Section 6.3(a), Parent and Merger Sub agree to promptly take, and to cause their respective Affiliates to take, and, notwithstanding anything to the contrary contained in this Agreement, including Section 6.1, the Company and its Affiliates shall be permitted to take (without affecting any representation, warranty, covenant or condition in this Agreement), any and all steps necessary to avoid or eliminate each and every impediment and obtain all consents under any Antitrust Laws that may be required by any Governmental Authority so as to enable the parties to close the transactions contemplated by this Agreement, including the Merger, as promptly as practicable, including (i) committing to or effecting, by consent decree, hold separate orders, trust, or otherwise, the sale or disposition of such assets or businesses (or agreeing to change or modify any course of conduct regarding future operations or otherwise taking actions that would limit its freedom of action with respect to, or its ability to retain, one or more of their respective businesses, product lines, divisions or assets or interests therein), (ii) terminating, relinquishing, modifying, or waiving existing relationships, ventures, contractual rights, obligations or other arrangements of Parent or Company or their respective Subsidiaries and (iii) creating any relationships, ventures, contractual rights, obligations or other arrangements of Parent or Company or their respective Subsidiaries (and, in each case, to enter, or offer to enter, into agreements and stipulate to the entry of an order or decree or file appropriate applications with any Governmental Authority in connection with any of the foregoing and in the case of actions by or with respect to the Company or its Subsidiaries or its or their businesses or assets, by consenting to such action by the Company; provided, however, that any such action may be conditioned upon consummation of the transactions contemplated by this Agreement) (each an “Antitrust Divestiture Action”), as are required in order to avoid the entry of, or to effect the dissolution of or vacate or lift, any Order, that would otherwise have the effect of preventing or delaying the consummation of the Merger and the other transactions contemplated by this Agreement; provided, however, that neither Parent nor Merger Sub shall be required to take or agree to take any Antitrust Divestiture Action if, (aa) as a result of such Antitrust Divestiture Action, Parent, the Company, or any of their respective Subsidiaries would be foreclosed, precluded, or prohibited from, or in any way limited in, producing, marketing, selling, offering for sale, deriving any revenue from or otherwise owning all or any portion of the Company’s iGaming assets (including social gaming content and other iGaming assets) if such Antitrust Divestiture Action would reasonably be expected to have a material impact on the iGaming business of the Company and its Subsidiaries, taken as a whole, or Parent and its Subsidiaries, taken as a whole, (bb) as a result of such Antitrust Divestiture Action, Parent, the Company, or their respective Subsidiaries would be foreclosed, precluded, or prohibited from, or in any way limited in, producing, marketing, selling, offering for sale, deriving any revenue from or otherwise owning the assets (including intellectual property assets or licenses), categories of assets, subsidiaries, affiliates, or businesses that are currently utilized or planned to be utilized by the Parent or its Subsidiaries for either (A) each of the Company’s and Parent’s respective proprietary iGaming platforms or (B) each of the Company’s and Parent’s respective proprietary remote gaming servers or (cc) in the aggregate, the Antitrust Divestiture Action would exceed the “Detriment Limit.” For purposes of this Agreement, (x) an Antitrust Divestiture Action would exceed the Detriment Limit if the assets, businesses or product lines required to be divested or held separate (the “Divestment”) in order to obtain actions or non-actions, waivers, authorizations, expirations or terminations of waiting periods, clearances, consents and approvals under Antitrust Laws accounted for more than $35,000,000 of gross revenues, on a consolidated basis, for the twelve months ended October 31, 2012 and (y) revenues associated with any Divestment of all or any portion of the Company’s iGaming business shall not be counted towards the Detriment Limit. The Company and its Affiliates hereby agree to take all necessary steps to achieve any Antitrust Divestiture Action requested by Parent and Merger Sub; provided, however, that, the Company and its Subsidiaries shall not be required to take, and Parent and Merger Sub shall not take, any such action which would bind the Company or its Subsidiaries in respect of any matter if the Merger Closing does not occur. Further, and for the avoidance of doubt, Parent will not take any actions that would preclude, impair or delay the consummation of the Merger. Each of the parties hereto shall promptly (and, in the case of the HSR Act, in no event later than ten (10) Business Days following the date that this Agreement is executed) make and not withdraw an appropriate filing of a Notification and Report Form pursuant to the HSR Act and any other applicable Antitrust Law, and thereafter promptly make any other required submissions under the HSR Act and any other applicable Antitrust Law, in each case, with respect to the transactions contemplated hereby, including the Merger. In furtherance and not in limitation of the foregoing or anything else in this Section 6.3, each party agrees to use its reasonable best efforts to take or cause to be taken all other actions necessary, proper or advisable to cause the expiration or early termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act and any other Antitrust Law as soon as practicable. The transactions contemplated by this Agreement shall be deemed to be materially delayed if unresolved objections or suits delay or would reasonably be expected to delay the consummation of the transactions contemplated hereby, including the Merger, beyond the Termination Date.
(c) Without limiting the general obligations of Parent or Merger Sub under Section 6.3(a), Parent and Merger Sub agree to promptly take, and to cause their respective Affiliates to take, and, notwithstanding anything to the contrary contained in this Agreement, including Section 6.1, the Company and its Affiliates shall be permitted to take (without affecting any representation, warranty, covenant or condition in this Agreement), any and all steps necessary to avoid or eliminate each and every impediment and obtain all licenses, approvals and consents under any Gaming Laws that may be required by any Governmental Authority so as to enable the parties to close the transactions contemplated by this Agreement, including the Merger, as promptly as practicable, including taking any and all steps necessary to (i) as promptly as practicable after the date of this Agreement, obtain all licenses, permits, approvals, authorizations, registrations, findings of suitability, franchises, entitlements, waivers and exemptions issued by any Gaming Authority required under applicable Gaming Laws to permit the parties hereto to consummate the transactions contemplated by this Agreement or necessary to permit Parent to acquire, own and operate the Company (collectively, “Gaming Approvals”); (iiiii) make or cause to be made all necessary filings, and thereafter make or cause to be made any other required submissions, respecting submissions with respect to this Agreement and the Merger transactions contemplated hereby, including the Merger, as required under: under the Gaming Laws; (1iii) schedule and attend (or cause to be scheduled and attended) any hearings or meetings with Gaming Authorities to obtain the Securities Act Gaming Approvals as promptly as possible; (iv) comply with the terms and conditions of any and all of the Exchange Act, and foregoing as necessary to obtain the rules and regulations thereunder, and any other applicable federal or state securities LawsGaming Approvals; and (2v) avoid any action or proceeding by any Gaming Authority challenging the consummation of transactions contemplated hereby. Parent and its Representatives and Affiliates shall (A) file or cause to be filed (x) (i) with respect to the Required Gaming Approvals, within thirty (30) calendar days after the date of this Agreement and (ii) with respect to all other applicable Law; provided thatGaming Approvals, OTE within forty-five (45) calendar days after the date of this Agreement, all required initial applications and TetriDyn shall documents in respect of officers and directors and Affiliates in connection with obtaining the Gaming Approvals (including in all such cases, where appropriate indications of further information to come by supplementary filing) and (y) as promptly as practicable after the date of this Agreement all other required applications and documents in connection with obtaining the Gaming Approvals, (B) request or cause to be requested an accelerated review from the Gaming Authorities in connection with such filings (if applicable), (C) act diligently and promptly to pursue the Gaming Approvals, (D) cooperate with each other the Company in connection with the making of all such filingsfilings referenced in the preceding sentence, including providing (E) promptly notify the Company of receipt of material comments or material requests from any Gaming Authority that relate to Gaming Approvals and supply the Company with copies of all correspondence (other than to the extent privileged) between Parent or any of its Representatives and Affiliates and any Gaming Authority with respect to Gaming Approvals and (F) otherwise keep the Company reasonably informed of the status of Parent’s application for Gaming Approvals and its activities related to obtaining the Gaming Approvals, as applicable, including promptly advising the Company upon receiving any communication from any Gaming Authority that causes Parent or Merger Sub to believe that there is a reasonable likelihood that any Gaming Approval required from such documents Gaming Authority will not be obtained or that the receipt of any such approval will be materially delayed.
(d) Subject to applicable Law, each of the parties hereto will furnish to the other Party such necessary information and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or assistance as the other filing to be made pursuant to the rules and regulations of any applicable Law may request in connection with the preparation of any required filings or submissions with any Governmental Authority and will cooperate in responding to any inquiry from a Governmental Authority, including immediately informing the other party of such inquiry, consulting in advance before making any presentations or submissions to a Governmental Authority, and supplying each other with copies of all material correspondence, filings or communications between either party and any Governmental Authority with respect to this Agreement (other than private or personal information pertaining to any individual applicants which may remain confidential). Neither party shall have any material communication or meeting (telephonic or in-person) regarding the transactions contemplated by this Agreement.
Agreement with a Governmental Authority without giving the other party a reasonable opportunity to attend in person or by phone (b) OTE and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, unless the Governmental Authority prohibits such other party’s participation or judicial action, and to have vacated, lifted, reversed, attendance in the communication or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfiedmeeting); provided, however, that Parent and Merger Sub shall be entitled to direct the antitrust defense of the Merger in no any investigation or litigation by, or any negotiation regarding any antitrust issues or proposed remedies with, any Governmental Authority or any other person seeking to challenge the Merger and the Company shall (x) not make any offer, acceptance, or counter-offer to or otherwise engage in negotiations or discussions with any Governmental Authority with respect to any proposed settlement, consent decree, commitment or remedy, timing agreements, or, in the event shall OTE be required to take any action that would of litigation, discovery, admissibility of evidence, timing or could reasonably be expected to have an OTE Material Adverse Effectscheduling, except as specifically requested by or agreed with Parent, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(iy) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all its reasonable best efforts to obtain any third-party consents: (1) necessary, proper, or advisable to consummate the transactions contemplated by this Agreement; (2) otherwise required under any contracts, licenses, leases, or other agreements provide full and effective support of Parent and Merger Sub in connection with the consummation of the transactions contemplated hereby; or (3) required to prevent a all material adverse effect affecting either of their respective business respects in all such negotiations and operations from occurring prior discussions to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably extent requested by any other Party, to limit the adverse effect upon OTE Parent and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consentMerger Sub.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matter.
Appears in 2 contracts
Samples: Merger Agreement (Bally Technologies, Inc.), Merger Agreement (SHFL Entertainment Inc.)
Appropriate Action; Consents; Filings. (a) OTE Subject to the terms and TetriDyn conditions herein provided, the Company and Parent shall useuse their commercially reasonable efforts, and shall cause each of their respective subsidiaries to use, all reasonable efforts to: (i) take, or cause to be taken, all appropriate action, action and do, or cause to be done, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise to consummate and make effective the transactions contemplated by this Agreement; Merger as promptly as practicable, (ii) obtain expeditiously from any Governmental Entities Authorities or third parties any consents, licenses, permits, waivers, approvals, authorizations, authorizations or orders required to be obtained or made by OTE Parent or TetriDyn the Company or any subsidiary of their Subsidiaries in connection with the authorization, execution, execution and delivery of this Agreement and the consummation of the transactions contemplated herebyMerger, including the Merger; and (iii) as promptly as practicable, make all necessary filings, and thereafter make any other required submissions, respecting with respect to this Agreement and the Merger required under: under (1A) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; , (B) the HSR Act and any related governmental request thereunder and (2C) any other applicable Law; provided that, OTE that Parent and TetriDyn the Company shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party non-filing party and its advisers advisors prior to such filings filing and, if requested, shall accept accepting all reasonable additions, deletions, deletions or changes suggested by the other party in connection therewith. OTE From the date of this Agreement until the Effective Time, each party shall promptly notify the other party in writing of any pending or, to the knowledge of the first party, threatened action, proceeding or investigation by any Governmental Authority or any other person (i) challenging or seeking material damages in connection with the Merger or the conversion of the Company Common Stock into Parent ADSs pursuant to the Merger or (ii) seeking to restrain or prohibit the consummation of the Merger or otherwise limit the right of Parent or Parent's subsidiaries to own or operate all or any portion of the businesses or assets of the Company, which in either case would have a Company Material Adverse Effect prior to or after the Effective Time, or a Parent Material Adverse Effect after the Effective Time.
(b) The Company and TetriDyn Parent shall furnish to each other all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law (including all information required to be included in the Proxy Statement and the Registration Statement) in connection with the transactions contemplated by this Agreement.
(b) OTE and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable to consummate the transactions contemplated by this Agreement; (2) otherwise required under any contracts, licenses, leases, or other agreements in connection with the consummation of the transactions contemplated hereby; or (3) required to prevent a material adverse effect affecting either of their respective business and operations from occurring prior to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matter.
Appears in 2 contracts
Samples: Merger Agreement (Elan Corp PLC), Merger Agreement (Sano Corp)
Appropriate Action; Consents; Filings. (a) OTE Upon the terms and TetriDyn shall usesubject to the conditions set forth in this Agreement, each of TRMT and RMRM shall, and shall cause each of the TRMT Subsidiaries and the RMRM Subsidiaries, as applicable, and their respective subsidiaries Representatives to, use reasonable best efforts to use, all reasonable efforts to: (i) take, or cause to be taken, all appropriate actionactions, and to do, or cause to be done, and to assist and cooperate with the other Party in doing, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise pursuant to any contract or agreement to consummate and make effective effective, as promptly as practicable, the transactions contemplated by this Agreement; Merger and the other Transactions, including (i) the taking of all actions necessary to cause the conditions to Closing set forth in ARTICLE 8 to be satisfied, (ii) obtain from any Governmental Entities any consents, licenses, permitsthe obtaining of all necessary actions or non-actions, waivers, approvals, authorizations, consents and approvals from Governmental Authorities or orders required to be obtained or made by OTE or TetriDyn or any subsidiary other Persons necessary in connection with the authorizationconsummation of the Merger and the other Transactions and the making of all necessary registrations and filings (including filings with Governmental Authorities, executionif any) and the taking of all reasonable steps as may be necessary to obtain an approval or waiver from, and delivery of this Agreement and or to avoid an action or proceeding by, any Governmental Authority or other Persons necessary in connection with the consummation of the transactions contemplated herebyMerger and the other Transactions, including the Merger; (iii) make all necessary filingsthe defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement and/or the consummation of the Merger or the other Transactions, and thereafter make (iv) the execution and delivery of any other required submissions, respecting this Agreement additional instruments necessary to consummate the Merger and the Merger required under: (1) the Securities Act and the Exchange Actother Transactions, and to fully carry out the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other in connection with the making purposes of all such filings, including providing copies of all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE In connection with and TetriDyn agree without limiting the foregoing, each of RMRM and TRMT shall give (or shall cause the RMRM Subsidiaries and the TRMT Subsidiaries, as applicable, and their respective Representatives to cooperate respectinggive) any notices to any Person, to and each of RMRM and TRMT shall use, and cause each of their respective subsidiaries the RMRM Subsidiaries and the TRMT Subsidiaries, as applicable, to use, reasonable best efforts to obtain any consents from any Person not covered by Section 7.6(a) that are necessary, proper or advisable to consummate the Merger or the other Transactions. Each of the Parties will furnish to the other such necessary information and reasonable assistance as the other may reasonably request in connection with the preparation of any required governmental filings or submissions and will cooperate respectingin responding to any inquiry from a Governmental Authority, including promptly informing the other Party of such inquiry, consulting in advance before making any presentations or submissions to a Governmental Authority, and to use supplying each other with copies of all reasonable efforts vigorously to contest material correspondence, filings or communications between either Party and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, Authority with respect to this Agreement or prohibits the consummation of the Merger or the other Transactions. To the extent reasonably practicable, the Parties or their Representatives shall have the right to review in advance, and each of the Parties will consult the others on, all the information relating to the other and each of their Affiliates that appears in any other transactions contemplated by this Agreementfiling made with, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actionsor written materials submitted to, including any Governmental Authority in connection with the disposition of assets Merger or the withdrawal other Transactions, except that confidential competitively sensitive business information may be redacted from doing business such exchanges. To the extent reasonably practicable, neither TRMT nor RMRM shall, nor shall they permit their respective Representatives to, participate independently in particular jurisdictionsany meeting or engage in any substantive conversation with any Governmental Authority in respect of any filing, required investigation or other inquiry without giving the other Party prior notice of such meeting or conversation and, to the extent permitted by regulatory authorities as applicable Law, without giving the other Party the opportunity to attend or participate (whether by telephone or in person) in any such meeting with such Governmental Authority. Notwithstanding the foregoing, obtaining any approval or consent from any Person pursuant to this Section 7.6(b) shall not be a condition to the granting obligations of the Parties to consummate the Merger.
(c) In connection with obtaining any approvals required in order approval or consent from any Person (other than any Governmental Authority) with respect to permit the consummation of the Merger or as may be required to avoidthe other Transactions, liftnone of the Parties, vacatethe TRMT Subsidiaries or the RMRM Subsidiaries, or reverse any legislative Representatives of a Party, shall be obligated to pay or judicial action that would otherwise cause commit to pay to such Person whose approval or consent is being solicited any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable to consummate the transactions contemplated by this Agreement; (2) otherwise required under any contracts, licenses, leases, cash or other agreements in connection with the consummation of the transactions contemplated hereby; consideration, make any accommodation or (3) required commitment or incur any liability or other obligation to prevent a material adverse effect affecting either of their respective business and operations from occurring such Person prior to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Merger Effective Time.
(ii) OTE and TetriDyn . The Parties shall use and cause their respective subsidiaries cooperate with respect to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness accommodations that may be requested or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure appropriate to obtain such consentconsents.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matter.
Appears in 2 contracts
Samples: Merger Agreement (RMR Mortgage Trust), Merger Agreement (Tremont Mortgage Trust)
Appropriate Action; Consents; Filings. (a) OTE The Company and TetriDyn shall use, and shall cause each of Parent will use their respective subsidiaries reasonable best efforts to use, all reasonable efforts to: (i) take, or cause to be taken, all appropriate action, action and do, or cause to be done, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise to consummate and make effective the transactions contemplated by this Agreement; Agreement as promptly as practicable, (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, authorizations or orders required to be obtained by Parent or made by OTE or TetriDyn the Company or any subsidiary of their respective Subsidiaries, or to avoid any action or Proceeding by any Governmental Entity (including those in connection with the HSR Act), in connection with the authorization, execution, execution and delivery of this Agreement and the consummation of the transactions contemplated herebyherein, including the Merger; Merger and (iii) execute and deliver any additional instruments necessary to consummate the transactions contemplated by, and to fully carry out the purposes of, this Agreement.
(b) Without limiting the generality of the foregoing, the Company and Parent will, as promptly as reasonably practicable, and in any event within 15 Business Days after the date hereof (provided, that the Company shall have timely furnished to Parent all information required, in Parent’s reasonable judgment, to be furnished by the Company therefor, and Parent shall have timely furnished to the Company all information required, in the Company’s reasonable judgment, to be furnished by Parent therefor), make all necessary filings, and thereafter make any other required submissions, respecting and pay any fees due in connection therewith, with respect to this Agreement and the Merger required under: under (1A) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; , (B) the HSR Act and (2C) any other applicable Law; provided thatprovided, OTE that the Company and TetriDyn shall Parent will cooperate with each other in connection with (x) determining whether any action by or in respect of, or filing with, any Governmental Entity is required, in connection with the consummation of the Merger and (y) seeking any such actions, consents, approvals or waivers or making of all any such filings, including providing copies of all such documents . The Company and Parent will use their reasonable best efforts to the furnish to each other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to under the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
. Each of Parent and the Purchaser will offer to take (band if such offer is accepted, commit to take) OTE and TetriDyn agree all steps which it is capable of taking to cooperate respectingavoid or eliminate impediments under any Competition Laws that may be asserted by the FTC, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger Antitrust Division or any other Governmental Entity with respect to the transactions contemplated by this Agreement so as to enable the Closing to occur as promptly as practicable following the date of this Agreement and, in any event, prior to the Outside Date, and will defend through litigation on the merits any claim asserted in any court by any party, including appeals. Notwithstanding anything to the contrary set forth in this Agreement, (i) neither Parent nor the Purchaser will be under any obligation to (A) propose, negotiate, offer to commit and effect, commit to or effect, by consent decree, hold separate order or otherwise, the sale, divestiture, license or disposition of any of the assets or businesses of Parent or its subsidiaries (including by vigorously pursuing all available avenues the Company or any of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree the Company Subsidiaries) or (B) propose, negotiate, offer to take, offer to commit to take, take or commit to take all actionsany action that limits its freedom of action with respect to, or its ability to retain, any of the businesses, services or assets of Parent or its subsidiaries (other than the Company or any of the Company Subsidiaries) and (ii) the Company will not (A) propose, negotiate, offer to commit and effect, commit to or effect, by consent decree, hold separate order or otherwise, the sale, divestiture, license or disposition of any of the assets or businesses of Parent or its subsidiaries (including the disposition of assets Company or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger Company Subsidiaries) or as may be required (B) propose, negotiate, offer to avoidtake, liftoffer to commit to take, vacatetake or commit to take any action that limits its freedom of action with respect to, or reverse its ability to retain, any legislative of the businesses, services or judicial action that would otherwise cause assets of Parent or its subsidiaries (including the Company or any condition to Closing not to be satisfiedof the Company Subsidiaries); provided, however, that in no event shall OTE be required at the request of Parent, the Company will agree to divest, hold separate or otherwise take or commit to take any action that would limits its freedom of action with respect to, or could reasonably its ability to retain, any of the businesses, services or assets of the Company or any of the Company Subsidiaries, provided, that any such action will be expected conditioned upon the consummation of the Closing and the transactions contemplated by this Agreement. Parent and the Purchaser will be solely responsible for and will pay all filing fees payable to have an OTE Material Adverse Effectthe FTC, and TetriDyn shall not be required to take the Antitrust Division or any action that would other Governmental Entity in connection with the antitrust, competition or could reasonably be expected to have a TetriDyn Material Adverse Effecttrade regulation matters contemplated by this Agreement.
(ic) OTE The Company and TetriDyn shall Parent will give (or will cause their respective Subsidiaries to give) any notices to third parties, and use use, and cause their respective subsidiaries Subsidiaries to use all use, their commercially reasonable efforts to obtain any third-third party consents: , waivers and approvals (1i) necessary, proper, proper or advisable to consummate the transactions contemplated by this Agreement; , (2ii) otherwise required to be disclosed in the Company Disclosure Schedule or (iii) so as to maintain and preserve the benefits under any contracts, licenses, leases, or other agreements in connection with the applicable Contract following the consummation of the transactions contemplated hereby; or hereby (3) required to prevent a material adverse effect affecting either of their respective business and operations from occurring prior to including the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(cMerger).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify Without limiting the other ofgenerality of anything contained in this Section 5.5, each party hereto will: (i) give the other parties prompt notice of the making or commencement of any material change in its current request, inquiry, investigation, action or future business, assets, liabilities, financial condition, legal proceeding by or results before any Governmental Entity with respect to the Merger or any of operationsthe other transactions contemplated by this Agreement; (ii) keep the other parties informed as to the status of any complaintssuch request, investigationsinquiry, investigation, action or legal proceeding; and (iii) promptly inform the other parties of any material communication to or from the FTC, the Antitrust Division or any other Governmental Entity regarding the Merger. Each party hereto will consult and cooperate with the other parties and will consider in good faith the views of the other parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with the Merger or any of the other transactions contemplated by this Agreement. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation, action or legal proceeding, each party hereto will permit, to the extent acceptable to the applicable Governmental Entity, authorized Representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation, action or legal proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation, action or legal proceeding.
(e) Each of Parent, the Purchaser and the Company will (i) cooperate and coordinate with the other in the making of any filings or submissions that are required to be made under any applicable Competition Laws or requested to be made by any Governmental Entity in connection with the transactions contemplated by this Agreement, (ii) supply the other or its outside counsel with any information that may be required or requested by any Governmental Entity in connection with such filings or submissions as soon as reasonably practicable, except as would result in the loss or waiver of any attorney-client, work product or other applicable privilege, (iii) supply any additional information that may be required or requested by the FTC, the Antitrust Division or other Governmental Entities in which any such filings or submissions are made under any applicable Competition Laws as promptly as practicable, (iv) use their commercially reasonable efforts to cause the expiration or termination of the applicable waiting periods under any applicable Competition Laws as soon as reasonably practicable and (v) take, or hearings (cause to be taken, all actions and do, or communications indicating that the same may cause to be contemplated) of any Governmental Entities respecting its business done, all things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or . Parent will not, and will not permit any of its subsidiaries; affiliates to, enter into or publicly announce an agreement to form a joint venture, strategic alliance or strategic partnership, or to acquire any assets, business or company, in or involving (A) capital equipment for hard disk drive testing or (ivB) any event storage enclosures, integrated application platforms or condition that might high performance computing data storage solutions for the enterprise data storage industry, in either case if such agreement would reasonably be expected to cause any of its representations, warranties, covenants, or agreements the condition set forth herein in Section 6.1(b) not to be true and correct at satisfied or would reasonably be expected to have the effect of preventing or materially delaying the consummation of the Merger.
(f) Notwithstanding anything to the contrary in this Agreement, nothing contained in this Agreement will give Parent or the Purchaser, directly or indirectly, the right to control or direct the operations of the Company prior to the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material Prior to the business Effective Time, the Company will exercise, consistent with the terms and operations conditions of the subject entitythis Agreement, if in existence on the date hereof, or for which the legal fees complete control and other costs to TetriDyn might reasonably be expected to exceed $10,000 supervision over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matterits operations.
Appears in 2 contracts
Samples: Merger Agreement (Seagate Technology PLC), Merger Agreement (Xyratex LTD)
Appropriate Action; Consents; Filings. (a) OTE Upon the terms and TetriDyn subject to the conditions set forth in this Agreement (including Section 6.5), each of the Company and Parent shall use, and shall cause each of their respective subsidiaries the Company Subsidiaries and the Parent Subsidiaries, respectively, to use, all use its reasonable best efforts to: (i) to take, or cause to be taken, all appropriate actionactions, and to do, or cause to be done, and to assist and cooperate with the other party in doing, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise pursuant to any contract or agreement to consummate and make effective effective, as promptly as practicable, the transactions contemplated by this Agreement; (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, or orders required to be obtained or made by OTE or TetriDyn or any subsidiary in connection with the authorization, execution, and delivery of this Agreement Mergers and the consummation of the transactions contemplated hereby, including the Merger; (iii) make all necessary filings, and thereafter make any other required submissions, respecting this Agreement and the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing (i) the taking of all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree actions necessary to take all actions, including cause the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition conditions to Closing not set forth in Article VII to be satisfied; provided, however(ii) the obtaining of all necessary actions or nonactions, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effectwaivers, consents and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use and cause their respective subsidiaries to use all reasonable efforts to obtain any third-party consents: (1) necessary, proper, or advisable to consummate the transactions contemplated by this Agreement; (2) otherwise required under any contracts, licenses, leases, approvals from Governmental Authorities or other agreements Persons necessary in connection with the consummation of the Mergers and the other transactions contemplated hereby; or by this Agreement and the making of all necessary registrations and filings (3including filings with Governmental Authorities, if any) required to prevent a material adverse effect affecting either and the taking of their respective business and operations from occurring prior to the Effective Time or a TetriDyn Material Adverse Effect from occurring after the Effective Time.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts steps as may be necessary to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness an approval or obligation that will not be paid, dischargedwaiver from, or otherwise satisfied at to avoid an action or proceeding by, any Governmental Authority or other Persons necessary in connection with the Effective Timeconsummation of the Mergers and the other transactions contemplated by this Agreement, excluding the obligations to SICOG and EIDC as each of which is set forth in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplatedSection 6.6(a) of any Governmental Entities respecting its business or the transactions contemplated hereby; Company Disclosure Letter (collectively, the “Required Consents”), (iii) the institution defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the threat consummation of material litigation involving it the Mergers or the other transactions contemplated by this Agreement, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed, the avoidance of its subsidiaries; each and every impediment under any antitrust, merger control, competition or trade regulation Law that may be asserted by any Governmental Authority with respect to the Mergers so as to enable the Closing to occur as soon as reasonably possible, and (iv) the execution and delivery of any event additional instruments necessary to consummate the Mergers and the other transactions contemplated by this Agreement and to fully carry out the purposes of this Agreement.
(b) In connection with and without limiting the foregoing, each of Parent and the Company shall give (or condition shall cause the Parent Subsidiaries or the Company Subsidiaries, respectively, to give) any notices to Third Parties, and each of Parent and the Company shall use, and cause each of their respective Affiliates to use, its reasonable best efforts to obtain any Third Party consents not covered by Section 6.6(a) that might reasonably be expected are necessary, proper or advisable to cause consummate the Mergers, including consents or notices required by any telephone company or related to website advertising. Each of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material parties hereto will furnish to the business other such necessary information and operations reasonable assistance as the other may 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 promptly informing the other party of such inquiry, consulting in advance before making any presentations or submissions to a Governmental Authority, and supplying each other with copies of all material correspondence, filings or communications between either party and any Governmental Authority with respect to this Agreement. To the extent practicable, and permitted by a Governmental Authority, each party hereto shall permit Representatives of the subject entityother party to participate in meetings (whether by telephone or in person) with such Governmental Authority. Notwithstanding the foregoing, if in existence on obtaining any approval or consent from any Third Party pursuant to this Section 6.6(b) shall not be a condition to the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life obligations of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matterParent.
Appears in 2 contracts
Samples: Merger Agreement (Extra Space Storage Inc.), Merger Agreement (SmartStop Self Storage, Inc.)
Appropriate Action; Consents; Filings. (a) OTE Upon the terms and TetriDyn subject to the conditions set forth in this Agreement (including Section 6.5), each of the Company and Parent shall use, (and shall cause each of their respective subsidiaries the Company Subsidiaries and the Parent Subsidiaries, respectively, to) use its reasonable best efforts to use, all reasonable efforts to: (i) take, or cause to be taken, all appropriate actionactions, and to do, or cause to be done, and to assist and cooperate with the other party in doing, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise pursuant to any contract or agreement to consummate and make effective effective, as promptly as practicable, the transactions contemplated by this Agreement; (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, or orders required to be obtained or made by OTE or TetriDyn or any subsidiary in connection with the authorization, execution, and delivery of this Agreement Mergers and the consummation of the transactions contemplated hereby, including the Merger; (iii) make all necessary filings, and thereafter make any other required submissions, respecting this Agreement and the Merger required under: (1) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; and (2) any other applicable Law; provided that, OTE and TetriDyn shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the other Party and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn shall furnish all information required for any application or other filing to be made pursuant to the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE and TetriDyn agree to cooperate respecting, to cause each of their respective subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanent) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing (i) the taking of all available avenues actions necessary to cause the conditions to Closing set forth in Article VII to be satisfied, (ii) the obtaining of administrative all necessary actions or nonactions, waivers, consents and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets approvals from Governmental Authorities or the withdrawal from doing business other Persons necessary in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit connection with the consummation of the Merger or Mergers and the other transactions contemplated by this Agreement and the making of all necessary registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be required necessary to avoid, lift, vacateobtain an approval or waiver from, or reverse to avoid an action or proceeding by, any legislative Governmental Authority or other Persons necessary in connection with the consummation of the Mergers and the other transactions contemplated by this Agreement, (iii) the defending of any lawsuits or other legal proceedings, whether judicial action or administrative, challenging this Agreement or the consummation of the Mergers or the other transactions contemplated by this Agreement, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed, the avoidance of each and every impediment under any antitrust, merger control, competition or trade regulation Law that would otherwise cause may be asserted by any condition Governmental Authority with respect to the Mergers so as to enable the Closing not to be satisfied; occur as soon as reasonably possible, provided, however, that in no event none of Parent, Parent LP or any Parent Subsidiary nor the Company nor any Company Subsidiary shall OTE be required to take any action that would be materially adverse to the business or could reasonably be expected to have an OTE Material Adverse Effectfinancial condition of the Company and the Company Subsidiaries, taken as a whole, or Parent and the Parent Subsidiaries, taken as a whole, and TetriDyn shall not be required (iv) the execution and delivery of any additional instruments necessary to take any action that would or could reasonably be expected consummate the Mergers and the other transactions contemplated by this Agreement and to have a TetriDyn Material Adverse Effectfully carry out the purposes of this Agreement.
(ib) OTE Each of the parties hereto will furnish to the other such necessary information and TetriDyn reasonable assistance as the other may reasonably request in connection with the preparation of any required governmental filings or submissions and will use reasonable best efforts to cooperate in responding to any inquiry from a Governmental Authority, including immediately informing the other party of such inquiry, consulting in advance before making any presentations or submissions to a Governmental Authority, and supplying each other with copies of all material correspondence, filings or communications between either party and any Governmental Authority with respect to this Agreement. To the extent practicable, and permitted by a Governmental Authority, each party hereto shall permit representatives of the other party to participate in meetings (whether by telephone or in person) with such Governmental Authority.
(c) In connection with and without limiting the foregoing, and notwithstanding anything in the Company Confidentiality Agreement to the contrary, each of Parent and the Company shall give (or shall cause the Parent Subsidiaries or the Company Subsidiaries, respectively, to give) any notices to third partiesThird Parties, and use Parent shall use, and cause their respective subsidiaries each of its Affiliates to use, its reasonable best efforts, and the Company shall use all its reasonable best efforts to cooperate with Parent in its efforts, to obtain any third-party consents: (1consents not covered by Section 6.6(a) and Section 6.6(b) that are necessary, proper, proper or advisable to consummate the transactions contemplated by Mergers. Notwithstanding the foregoing, obtaining any approval or consent from any third party pursuant to this Agreement; (2Section 6.6(c) otherwise required under any contracts, licenses, leases, or other agreements in connection with the consummation of the transactions contemplated hereby; or (3) required to prevent shall not be considered a material adverse effect affecting either of their respective business and operations from occurring prior condition to the Effective Time or a TetriDyn Material Adverse Effect from occurring after obligations of Parent and Merger Sub to consummate the Effective TimeMergers.
(ii) OTE and TetriDyn shall use and cause their respective subsidiaries to use all reasonable efforts to obtain release of any guarantees by any owner of TetriDyn of any third-party indebtedness or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) In the event that any Party shall fail to obtain any third-party consent described in subsection (c)(ii) above, such Party shall use all reasonable efforts, and shall take any such actions reasonably requested by any other Party, to limit the adverse effect upon OTE and TetriDyn, and their respective subsidiaries and their respective businesses, resulting or that could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) OTE and TetriDyn shall promptly notify the other of: (i) any material change in its current or future business, assets, liabilities, financial condition, or results of operations; (ii) any complaints, investigations, or hearings (or communications indicating that the same may be contemplated) of any Governmental Entities respecting its business or the transactions contemplated hereby; (iii) the institution or the threat of material litigation involving it or any of its subsidiaries; or (iv) any event or condition that might reasonably be expected to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matter.
Appears in 2 contracts
Samples: Merger Agreement (Thomas Properties Group Inc), Merger Agreement (Parkway Properties Inc)
Appropriate Action; Consents; Filings. (a) OTE The Company and TetriDyn Parent shall use, and shall cause each of use their respective subsidiaries to use, all commercially reasonable efforts to: to (i) take, or cause to be taken, all appropriate action, action and do, or cause to be done, all things necessary, proper, proper or advisable under applicable Laws Law or otherwise to consummate and make effective the transactions contemplated by this Agreement; Agreement as promptly as practicable, (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations, authorizations or orders required to be obtained by Parent or made by OTE or TetriDyn the Company or any subsidiary of their respective Subsidiaries, or to avoid any action or proceeding by any Governmental Entity (including, without limitation, those in connection with the HSR Act), in connection with the authorization, execution, execution and delivery of this Agreement and the consummation of the transactions contemplated herebyherein, including without limitation the Offer and the Merger; , (iii) if required pursuant to ISRA, file a General Information Notice with the New Jersey Department of Environmental Protection (the “NJDEP”) within five days after the date hereof and (iv) as promptly as reasonably practicable, and in any event within ten Business Days after the date hereof, make all necessary filings, and thereafter make any other required submissions, respecting and pay any of their respective fees due in connection therewith, with respect to this Agreement Agreement, the Offer and the Merger required under: under (1A) the Securities Act and the Exchange Act, and the rules and regulations thereunder, and any other applicable federal or state securities Laws; , (B) the HSR Act and (2C) any other applicable Law; provided thatprovided, OTE that the Company and TetriDyn Parent shall cooperate with each other in connection with (x) preparing and filing the Offer Documents, the Schedule 14D-9, the Proxy Statement and any Other Filings, (y) determining whether any action by or in respect of, or filing with, any Governmental Entity is required, in connection with the consummation of the Offer or the Merger and (z) seeking any such actions, consents, approvals or waivers or making of all any such filings, including providing copies of all such documents to the other Party . The Company and its advisers prior to such filings and, if requested, shall accept all reasonable additions, deletions, or changes suggested in connection therewith. OTE and TetriDyn Parent shall furnish to each other all information required for any application or other filing to be made pursuant to under the rules and regulations of any applicable Law in connection with the transactions contemplated by this Agreement.
(b) OTE The Company and TetriDyn agree to cooperate respecting, to Parent shall give (or shall cause each of their respective subsidiaries Subsidiaries to cooperate respecting, and to use all reasonable efforts vigorously to contest and resist any action, including legislative, administrative, or judicial action, and to have vacated, lifted, reversed, or overturned any decree, judgment, injunction, or other order (whether temporary, preliminary, or permanentgive) (an “Order”) of any Governmental Entity that is in effect and that restricts, prevents, or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including by vigorously pursuing all available avenues of administrative and judicial appeal and legislative action. OTE and TetriDyn also agree to take all actions, including the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by regulatory authorities as a condition to the granting of any approvals required in order to permit the consummation of the Merger or as may be required to avoid, lift, vacate, or reverse any legislative or judicial action that would otherwise cause any condition to Closing not to be satisfied; provided, however, that in no event shall OTE be required to take any action that would or could reasonably be expected to have an OTE Material Adverse Effect, and TetriDyn shall not be required to take any action that would or could reasonably be expected to have a TetriDyn Material Adverse Effect.
(i) OTE and TetriDyn shall give any notices to third parties, and use use, and cause their respective subsidiaries Subsidiaries to use all use, their commercially reasonable efforts to obtain any third-third party consents: , (1i) necessary, proper, proper or advisable to consummate the transactions contemplated by this Agreement; , (2ii) otherwise required under any contractsto be disclosed in the Company Disclosure Schedule or the Parent Disclosure Schedule, licenses, leasesas applicable, or other agreements in connection with the consummation of the transactions contemplated hereby; or (3iii) required to prevent a material adverse effect affecting either of their respective business and operations from occurring prior to the Effective Time or a TetriDyn Company Material Adverse Effect from occurring prior to or after the Effective Time.
(ii) OTE ; provided, however that the Company and TetriDyn Parent shall use coordinate and cause their respective subsidiaries cooperate in determining whether any actions, consents, approvals or waivers are required to use all reasonable efforts be obtained from parties to obtain release any Company Material Contracts in connection with consummation of the Offer or the Merger and seeking any guarantees by any owner of TetriDyn of any third-party indebtedness such actions, consents, approvals or obligation that will not be paid, discharged, or otherwise satisfied at the Effective Time, excluding the obligations to SICOG and EIDC as set forth in subsection 5.12(c).
(iii) waivers. In the event that any Party either party shall fail to obtain any third-third party consent described in subsection (c)(ii) abovethe first sentence of this Section 5.5(b), such Party party shall use all its commercially reasonable efforts, and shall take any such actions reasonably requested by any the other Partyparty hereto, to limit the minimize any adverse effect upon OTE the Company and TetriDynParent, their respective Subsidiaries, and their respective subsidiaries and their respective businessesbusinesses resulting, resulting or that which could reasonably be expected to result result, after the consummation of the Offer or the Effective Time, from the failure to obtain such consent.
(dc) OTE and TetriDyn shall promptly notify Without limiting the other ofgenerality of anything contained in this Section 5.5, each party hereto shall: (i) give the other parties prompt notice of the making or commencement of any material change in its current request, inquiry, investigation, action or future businesslegal proceeding by or before any Governmental Entity with respect to the Offer, assets, liabilities, financial condition, the Merger or results any of operationsthe other transactions contemplated by this Agreement; (ii) keep the other parties informed as to the status of any complaintssuch request, investigationsinquiry, investigation, action or legal proceeding; and (iii) promptly inform the other parties of any communication to or from the Federal Trade Commission, the Department of Justice or any other Governmental Entity regarding the Offer or the Merger. Each party hereto will consult and cooperate with the other parties and will consider in good faith the views of the other parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with the Offer, the Merger or any of the other transactions contemplated by this Agreement. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation, action or legal proceeding, each party hereto will permit authorized representatives of the other parties to be present at each meeting, hearing, arbitration, mediation or conference relating to such request, inquiry, investigation, action or legal proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation, action or legal proceeding.
(d) Notwithstanding anything to the contrary in this Agreement, in connection with obtaining any approval or consent from any Person with respect to the Offer or the Merger, (i) without the prior written consent of Parent, none of the Company or any Company Subsidiary shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any commitment or incur any liability or other obligation due to such Person, and (ii) neither Parent nor the Purchaser shall be required to pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any commitment or incur any liability or other obligation.
(e) Notwithstanding anything to the contrary in this Agreement, in connection with the receipt of any necessary approvals or clearances of a Governmental Entity (including under the HSR Act), neither Parent nor the Company (nor any of their respective Subsidiaries or affiliates) shall be required to sell, hold separate or otherwise dispose of or conduct their business in a specified manner, or hearings agree to sell, hold separate or otherwise dispose of or conduct their businesses in a specified manner, or enter into or agree to enter into a voting trust arrangement, proxy arrangement, “hold separate” agreement or arrangement or similar agreement or arrangement with respect to the assets, operations or conduct of their business in a specified manner, or permit the sale, holding separate or other disposition of, any material assets of Parent, the Company or their respective Subsidiaries or affiliates. For the avoidance of doubt, nothing contained in this Agreement shall restrict Parent from developing, soliciting, considering, communicating, exchanging or furnishing information, negotiating, disclosing, entering into or consummating potential or definitive strategic transactions through both internally generated and third-party proposals.
(f) Notwithstanding anything to the contrary in this Agreement, the Company and Parent shall, if applicable, take all commercially reasonable steps pursuant to ISRA in order to obtain any approval or communications indicating that the same consent as may be contemplated) of any Governmental Entities respecting its business or necessary to consummate the transactions contemplated hereby; , including without limitation (iiii) the institution submission of any applications or documentation, the threat payment of material litigation involving it any and all fees or costs and the provision of any and all notifications, in each case, as required pursuant to ISRA as a result of, or related to, the execution of its subsidiaries; this Agreement and (ii) executing any required remediation agreements with the NJDEP in form and substance reasonably acceptable to Parent, or (iv) any event or condition that might otherwise committing to perform and take such actions as may reasonably be expected required by the NJDEP, subject to cause any of its representations, warranties, covenants, or agreements set forth herein not to be true and correct at the Effective Time. As used in the preceding sentence, “material litigation” means any case, arbitration, or adversary proceeding or other matter that is material to the business and operations of the subject entity, if in existence on the date hereof, or for which the legal fees and other costs to TetriDyn might reasonably be expected to exceed $10,000 over the life of the matter or to OTE (or any subsidiary) might reasonably be expected to exceed $10,000 over the life of the matterSection 5.5(e).
Appears in 2 contracts
Samples: Merger Agreement (Lilly Eli & Co), Merger Agreement (Imclone Systems Inc)
