Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to the parties hereto from and after the date of this Agreement until the Closing: (a) Sellers and the Buyer Parties shall each use commercially reasonable efforts to take, or to cause to be taken, all actions and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are necessary, proper or advisable under applicable Legal Requirements or otherwise are reasonably required to obtain, in the case of Sellers, the Authorizations set forth in Schedule 3.05 to the Sellers' Disclosure Letter and, in the case of the Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers and the Buyer Parties shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the nonfiling party's outside antitrust counsel prior to filing and, if requested, shall accept all reasonable additions, deletions or changes suggested in connection therewith. Sellers and the Buyer Parties shall furnish or cause to be furnished all information required for any application or other filing to be made in connection with obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement. (b) Sellers and the Buyer Parties shall each timely give, and shall cause their respective Subsidiaries, as applicable, to give, any notices to third Persons and shall use, and cause their respective Subsidiaries, as applicable, to use, commercially reasonable efforts to obtain, in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. (c) Sellers and the Buyer Parties shall each 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 transactions contemplated hereby, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby and (iv) the occurrence or nonoccurrence of any event that would be likely to cause any of the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such notice. (d) Sellers and the Buyer Parties each agree to cooperate and use commercially reasonable efforts to eliminate the antitrust concern(s) of any Governmental Authority or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this Agreement. (e) Sellers and the Buyer Parties each agree that the terms and provisions of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d).
Appears in 2 contracts
Samples: Purchase Agreement (Ico Inc), Purchase Agreement (Varco International Inc /De/)
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to From the parties hereto from and after the date of this Agreement Execution Date until the Closing:
(a) Sellers Seller and the Buyer Parties shall each use commercially reasonable efforts to (i) take, or to cause to be taken, all actions actions, and to do, or to cause to be done, all thingsthings that, including the making of all necessary filings and thereafter any other required submissionsin either case, that are necessary, proper or advisable under applicable Legal Requirements Law or otherwise are reasonably to consummate and make effective the transactions contemplated by this Agreement, (ii) obtain from the relevant Governmental Authorities all Authorizations required to obtain, in the case of Sellers, the Authorizations set forth in Schedule 3.05 be obtained at or prior to the Sellers' Disclosure Letter andClosing by Seller or Buyer in connection with the authorization, in execution, delivery and performance of this Agreement and the case consummation of the Buyer Partiestransactions contemplated hereby, and (iii) make all necessary filings, including filings under the Authorizations set forth in Schedule 4.03 HSR Act, and thereafter make any other required submissions, with respect to this Agreement and the transactions contemplated hereby required under any applicable Law at or prior to the Closing. Buyer Parties' Disclosure Letterand Seller shall bear the costs and expenses of their respective filings; provided, however, that Buyer shall pay the filing fee in connection with any such filings. Sellers Seller and the Buyer Parties shall cooperate with each other in connection with the making of all such filings, including by providing copies of all such documents to the nonfiling party's outside antitrust counsel non-filing party and its advisors prior to filing and, if requested, filing. Seller and Buyer shall accept all each use commercially reasonable additions, deletions or changes suggested in connection therewith. Sellers and the Buyer Parties shall efforts to furnish or cause to be furnished all information required for any application or other filing to be made pursuant to any applicable Law in connection with obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.
(b) Sellers Seller and the Buyer Parties shall each timely give, and shall give or cause their respective Subsidiaries, as applicable, to give, any be given all notices to third Persons and shall use, use commercially reasonable efforts to obtain all Third-Party Consents and cause their respective SubsidiariesAuthorizations (i) set forth on Schedule 2.4(a) and Schedule 2.4(b), as applicable, to use, commercially reasonable efforts to obtain, or (ii) required under any Assumed Contract in connection with the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case consummation of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Lettertransactions contemplated hereby.
(c) Sellers Seller and the Buyer Parties shall each give prompt notice to the other of the receipt of any written notice or other written communication from (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 transactions contemplated hereby, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced Governmental Authority or threatened in writing other Person regarding the initiation or threat of initiation of any Claims against, relating to to, or involving or otherwise affecting the Buyer or Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby hereby, and (iv) any Person regarding the occurrence or nonoccurrence of any event that the occurrence or nonoccurrence of which would be reasonably likely to (A) cause any of condition to the Closing Conditions obligations of the other party to consummate the transactions contemplated hereby not to be satisfied or of any other change that is reasonably likely to satisfied, (B) cause a breach of the representations, warranties or covenants of such party under this Agreement Agreement, or to (C) delay or impede the ability of either party Buyer or Seller, respectively, to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c5.2(c) shall cure any breach of any representation representation, warranty or warranty covenant of the party hereto giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such noticeAgreement.
(d) Sellers Buyer and the Buyer Parties Seller each agree to cooperate and use commercially reasonable efforts to eliminate the antitrust concern(s) of vigorously contest and resist any Governmental Authority or Court. If there is no commercially reasonable solution to an administrative or judicial challenge action, and to the consummation of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt seek to have vacated, lifted, reversed or overturned any Order order (whether temporary, preliminary or permanent) of any Court court or other Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this Agreement.
(e) Sellers , including the vigorous pursuit of all available avenues of administrative and judicial appeal. Buyer shall not be obligated to agree or consent to any material conditions upon its ability to acquire, own or operate the Buyer Parties each Transferred Assets or to agree that the terms and provisions to dispose of, hold separate or take any other action with respect to any material portion of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d)Transferred Assets.
Appears in 2 contracts
Samples: Sale and Purchase Agreement (NuStar GP Holdings, LLC), Sale and Purchase Agreement (NuStar Energy L.P.)
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply From the Execution Date to the parties hereto from and after the date of this Agreement until the Closing:
(a) Subject to Sellers’ and Buyers’ additional obligations in clauses (b), (c) and (d) of this Section 5.2, Sellers and the Buyer Parties Buyers shall each use all commercially reasonable efforts to (i) take, or to cause to be taken, all actions actions, and to do, or to cause to be done, all thingsthings that, including the making of all necessary filings and thereafter any other required submissionsin either case, that are necessary, proper or advisable under applicable Legal Requirements Law, Environmental Law or otherwise are reasonably to consummate and make effective the transactions contemplated by this Agreement and the Other Agreements, and (ii) obtain from the relevant Governmental Authorities all Authorizations required to be obtained at or prior to the Closing by Buyers or Sellers in connection with the authorization, execution, delivery and performance of this Agreement and the Other Agreements and the consummation of the transactions contemplated hereby and thereby. Buyers’ obligations in this regard, shall include applying for and obtaining (and causing its Affiliates to apply for and obtain, where applicable) all federal, state and local sales, use, motor fuels, franchise and other Tax permits, licenses, certificates, exemptions and similar Tax-related Authorizations as are necessary to enable Buyers and their Affiliates, as applicable, to consummate the transactions contemplated hereunder and under the Other Agreements.
(b) As promptly as practicable, Sellers and Buyers shall make all necessary filings, including filings under the HSR Act and other filings and registrations referred to in the case of SellersDisclosure Schedules, and thereafter make any other required submissions, with respect to this Agreement and the Authorizations set forth in Schedule 3.05 transactions contemplated hereby required under any Law or Environmental Law at or prior to the Sellers' Disclosure Letter andClosing. Buyers and Sellers shall bear the costs and expenses of their respective filings; provided, that Buyers shall pay the filing fee in the case of the Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letterconnection with any such filings. Buyers and Sellers and the Buyer Parties shall reasonably cooperate with each other in connection with the making of all such filings, including by providing copies of all such documents to the nonfiling party's outside antitrust counsel party and its advisors prior to filing (excluding documents and communications which are subject to preexisting confidentiality agreements or the attorney-client privilege or work product doctrine or which refer to valuation of the Assets or the Business) and, if requested, shall accept consider in good faith all reasonable additions, deletions or changes suggested in connection therewith. Buyers and Sellers and the Buyer Parties shall each use all commercially reasonable efforts to furnish or cause to be furnished all information required for any application or other filing to be made pursuant to any Law or Environmental Law in connection with obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.
(b) Sellers Agreement and the Buyer Parties shall each timely give, and shall cause their respective Subsidiaries, as applicable, to give, any notices to third Persons and shall use, and cause their respective Subsidiaries, as applicable, to use, commercially reasonable efforts to obtain, in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure LetterOther Agreements.
(c) Except to the extent restricted by confidentiality obligations, Buyers and Sellers and the Buyer Parties shall each give prompt notice to the other of the receipt of any written notice or other written communication from (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 transactions contemplated hereby, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced Governmental Authority or threatened in writing other Person regarding the initiation or threat of initiation of any claims, actions, suits, proceedings, arbitrations or investigations against, relating to to, or involving or otherwise affecting the Seller Companies Buyers or the Buyer Parties, Sellers that relate to the consummation of the transactions contemplated hereby hereby, and (iv) any Person regarding the occurrence or nonoccurrence of any event that the occurrence or nonoccurrence of which would be reasonably likely to (A) cause any of condition to the Closing Conditions obligations of the other party to consummate the transactions contemplated hereby not to be satisfied or of any other change that is reasonably likely to satisfied, (B) cause a breach of the representations, warranties or covenants of such party under this Agreement Agreement, or to (C) delay or impede the ability of either party Buyers or Sellers, respectively, to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of Nothing in this Section shall require Buyers to provide Sellers any notice pursuant or communication among Buyers and their owners or with respect to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty Buyers’ financing of the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such noticetransaction.
(d) Buyers and Sellers and the Buyer Parties each agree to cooperate and to use all commercially reasonable efforts to eliminate the antitrust concern(s) of vigorously contest and to resist any Governmental Authority or Court. If there is no commercially reasonable solution to an action, including legislative, administrative or judicial challenge to the consummation of the transactionsaction, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order order (whether temporary, preliminary or permanent) of any Court court or other Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this Agreement or the Other Agreements, including the vigorous pursuit of all available avenues of administrative and judicial appeal and all available legislative action. Notwithstanding anything to the contrary in this Agreement, Buyers shall take, or cause to be taken, such commercially reasonable actions related to or involving the Business required by any Governmental Authority as a condition to the granting of any Authorization necessary for the consummation of the transactions contemplated by this Agreement or the Other Agreements, or as may be required to avoid, lift, vacate or reverse any legislative, administrative or judicial action that would otherwise cause any closing condition not to be satisfied; provided that Buyers will not be required to place any material restrictions on Buyers’ and Buyers’ Affiliates pre-existing or future business, and none of Buyers or Buyers’ Affiliates shall be required to dispose of any of their respective assets.
(e) Buyers and Sellers shall each timely give or cause to be given all notices to third Persons and use all commercially reasonable efforts to obtain all Third Person Consents (i) set forth on Section 3.3 and Section 4.3 of the Disclosure Schedules, (ii) required under any Material Contract in connection with the consummation of the transactions contemplated hereby or (iii) otherwise required to prevent a Material Adverse Effect from occurring prior to or after the Closing. Except as otherwise expressly set forth herein, Sellers shall be solely responsible for the payment of all third party transfer fees and other costs, fees and expenses, if any, necessary to secure any Third Person Consents or otherwise effect the transfer of any Assigned Contracts from Sellers to Buyers.
(f) Buyers shall use diligent efforts to secure the release of Sellers and their Affiliates from liability (whether absolute or contingent) for any post-Closing obligations of Buyers under any Authorizations or Material Contracts assigned or transferred from Sellers or any of their Affiliates to Buyers in accordance herewith, and to secure the release of Sellers and their Affiliates from any guarantees of such post-Closing obligations under any Authorizations or Material Contracts. Buyers’ efforts in this regard shall include, if necessary, causing the Buyer Parties each agree Guarantor to guarantee the obligations of Buyers under the affected Authorizations or Material Contracts or posting a letter of credit, performance bond or other form of credit support to replace any similar form of credit support provided by Sellers or any of their Affiliates prior to Closing. Sellers and their Affiliates shall have the right to cancel or revoke any guarantees, bonds, letters of credit and similar undertakings provided by them or on their behalf to secure any obligations related to the Assets or the Business, provided that Sellers will not do so without notifying Buyers and allowing Buyers the reasonable opportunity to provide the counterparty a guarantee, bond, letters of credit or similar undertaking on substantially similar terms to those provided by Sellers or their Affiliates, or to otherwise take steps adequate to either secure Sellers’ release or protect Sellers from Claims by the parties in whose favor such guarantees or other credit support obligations run. Buyers shall indemnify the Seller Indemnitees in accordance with Section 12.3 for any Losses the Seller Indemnitees suffer or incur and which they would not have suffered or incurred but for Buyers’ failure or inability to secure any of the releases required under this paragraph. The provisions of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions this paragraph shall continue in full force and effect until the survive Closing, except as otherwise provided in Section 11.02(d).
Appears in 2 contracts
Samples: Asset Purchase Agreement (PBF Energy Inc.), Asset Purchase Agreement (PBF Energy Inc.)
Appropriate Action; Consents; Filings. The covenants Upon the terms and subject to the conditions set forth in this Section 7.01 Agreement, the Company, Parent and MergerSub shall apply each use reasonable best efforts to the parties hereto from and after the date of this Agreement until the Closing:
as promptly as reasonably practicable: (a) Sellers and the Buyer Parties shall each use commercially reasonable efforts to take, or to cause to be taken, all actions appropriate action, and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are things necessary, proper or advisable under applicable Legal Requirements Law to consummate and make effective the Transactions; (b) obtain all Permits, waivers or otherwise are reasonably authorizations required under Law (including all rulings and approvals of Governmental Authorities and consents from parties to obtainContracts) in connection with the authorization, in execution, and delivery of this Agreement and the case of Sellers, the Authorizations set forth in Schedule 3.05 to the Sellers' Disclosure Letter and, in the case consummation by them of the Buyer PartiesTransactions, including the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers Offer and the Buyer Parties Merger; (c) defend any proceeding challenging this Agreement or the consummation of the Transactions, including seeking to have any stay or temporary restraining order vacated or reversed; and (d) make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement and the Merger required under the HSR Act or required under any Foreign Antitrust Laws; provided, that Parent and 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 nonfiling party's outside antitrust counsel non-filing party and its advisors prior to filing and, if requested, shall to accept all reasonable additions, deletions deletions, or changes suggested in connection therewith. Sellers The Company and the Buyer Parties Parent shall furnish or cause to be furnished 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. Without limiting the foregoing, each of the parties shall use reasonable best efforts to (i) make or cause to be made the applications or filings required to be made by Parent, MergerSub or the Company or any of their respective Subsidiaries under or with respect to the HSR Act in connection with the authorization, execution and delivery of this Agreement and the consummation of the Merger and the other Transactions as promptly as is reasonably practicable, and in any event within 10 Business Days after the date of this Agreement, and concurrently with such filing or as soon as practicable thereafter, request early termination of the waiting period under the HSR Act, (ii) comply at the earliest practicable date with any request under or with respect to the HSR Act or Foreign Antitrust 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 Authority in connection with such applications or filings or the Transactions and (iii) reasonably coordinate and cooperate with each other party in the making of any applications or filings (including furnishing any information the other party may require in order to make any such application or filing), or obtaining any approvals, required in connection with the Transactions under the HSR Act or Foreign Antitrust Laws. Notwithstanding anything contained herein, Parent shall have the right to take the lead in any communications or meetings with, and any dealings with, any third Person or Governmental Authority in connection with obtaining any such Authorizationsapprovals, consents, Orders, exemptions or waivers, and the Company shall not take any actions, including entering into any agreements, arrangements or understandings, in connection therewith without the prior written consent of Parent. In particular, each Each Party hereto shall promptly inform the other of any communication from any Governmental Authority regarding any of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior Transactions unless otherwise prohibited by Law. Notwithstanding anything to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees thatcontrary contained herein, except in connection with the prior consent receipt of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period necessary approvals under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate Foreign Antitrust Laws, neither Parent nor the transactions contemplated by this Agreement.
(b) Sellers and the Buyer Parties Company shall each timely give, and shall cause their respective Subsidiaries, as applicable, to give, any notices to third Persons and shall use, and cause their respective Subsidiaries, as applicable, to use, commercially reasonable efforts to obtain, in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter.
(c) Sellers and the Buyer Parties shall each 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 transactions contemplated hereby, (ii) any notice to divest or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving hold separate or otherwise affecting the Seller Companies take or commit to take any action that limits Parent’s or the Buyer PartiesCompany’s freedom of action with respect to, that relate or their ability to the consummation of the transactions contemplated hereby and (iv) the occurrence or nonoccurrence of any event that would be likely to cause retain, any of the Closing Conditions businesses, product lines, or properties of the other party not Company or Parent, except for any such action as would be immaterial to be satisfied Parent, the Company or of any other change that is reasonably likely to cause a breach the economic or business benefits of the covenants of such party under this Agreement or Transactions to delay or impede the ability of either party to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such noticeParent.
(d) Sellers and the Buyer Parties each agree to cooperate and use commercially reasonable efforts to eliminate the antitrust concern(s) of any Governmental Authority or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this Agreement.
(e) Sellers and the Buyer Parties each agree that the terms and provisions of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d).
Appears in 2 contracts
Samples: Merger Agreement (Galaxy Dream Corp), Merger Agreement (Rc2 Corp)
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to the parties hereto from and after the date of this Agreement until the Closing:
(a) Through the Closing Date, Sellers and the Buyer Parties shall will each cooperate with each other and use commercially (and will cause their respective Subsidiaries to use) reasonable best efforts (i) to take, or to cause to be taken, all actions actions, and to do, or to cause to be done, all thingsthings necessary, including proper or advisable on its part under this Agreement, Applicable Law or otherwise to consummate and make effective the making transactions contemplated by this Agreement, (ii) to obtain promptly from any Governmental Authorities any authorizations or orders required to be obtained by Sellers or Buyer or any of their respective Subsidiaries in connection with the authorization, execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, and (iii) to promptly make all necessary filings filings, and thereafter make any other required submissions, that are necessary, proper or advisable under applicable Legal Requirements or otherwise are reasonably required with respect to obtain, in the case of Sellers, the Authorizations set forth in Schedule 3.05 to the Sellers' Disclosure Letter and, in the case this Agreement and prompt consummation of the Buyer Parties, transactions contemplated hereby required under (A) the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure LetterHSR Act and (B) any other Applicable Law. Sellers and the Buyer Parties shall will cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the nonfiling party's outside antitrust counsel party and its advisors prior to filing filings and, if requested, shall will accept all reasonable additions, deletions or changes suggested in connection therewith. Sellers Each Seller and the Buyer Parties shall will furnish or cause to be furnished all information concerning itself, its Subsidiaries and Affiliates required for any application or other filing to be made pursuant to any Applicable Law or any applicable regulations of any Governmental Authority in connection with obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement. Sellers and Buyer will file as promptly as practicable and in any event within one Business Day of the date hereof the notification and report form required by the HSR Act, together with all required supplemental information and request early termination of the waiting period with respect to the sale of the Shares under the HSR Act.
(b) Sellers Through the Closing Date, each Seller and the Buyer Parties shall each timely give, and shall cause their respective Subsidiaries, as applicable, to give, any notices to third Persons and shall use, and cause their respective Subsidiaries, as applicable, to use, commercially reasonable efforts to obtain, in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter.
(c) Sellers and the Buyer Parties shall each 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 this Agreement and the transactions contemplated herebyby this Agreement, (ii) any notice or other communication from any Governmental Authority in connection with this Agreement and the transactions contemplated herebyby this Agreement, (iii) any Actions Legal Proceedings commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies Sellers, Buyer or the Buyer Parties, their respective Subsidiaries that relate to the consummation of this Agreement and the transactions contemplated hereby by this Agreement and (iv) the occurrence or nonoccurrence of if there occurs any event or condition that would might reasonably be likely expected to cause or result in any of the Closing Conditions of the other party not its representations or warranties contained herein to be satisfied untrue or of inaccurate in any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement material respect or to delay or impede the ability of either party Buyer or either Seller, respectively, to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such notice.
(dc) Through the Closing Date, Sellers and the Buyer Parties each agree to cooperate and use commercially their reasonable best efforts to eliminate the antitrust concern(s) of contest and resist any Governmental Authority or Court. If there is no commercially reasonable solution to an action, including legislative, administrative or judicial challenge to the consummation of the transactionsaction, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is in effect and effect, that restricts, prevents or prohibits the consummation of the transactions contemplated by this Agreement, including the active pursuit of all available avenues of administrative and judicial appeal.
(ed) Sellers Prior to the Closing Date, each Seller and Buyer will give (or will cause their respective Subsidiaries to give) any notices to third Persons, and use, and cause their respective Subsidiaries to use, their reasonable best efforts to obtain promptly any consents from third Persons (A) necessary, proper or advisable to consummate the Buyer Parties each agree that the terms and provisions transactions contemplated by this Agreement or to satisfy any of the Confidentiality Agreement are conditions set forth in Article VI, (B) otherwise required under any contracts, licenses, leases or other agreements in connection with the consummation of the transactions contemplated hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d)or (C) required to prevent a Material Adverse Effect.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Midamerican Energy Holdings Co /New/), Purchase and Sale Agreement (Dynegy Inc /Il/)
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 Each Merging Company and its Shareholders shall apply to the parties hereto from and after the date of this Agreement until the Closinguse all reasonable efforts to:
(ai) Sellers and the Buyer Parties shall each use commercially reasonable efforts to take, or to cause to be taken, all actions appropriate action, and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are things necessary, proper or advisable under applicable Legal Requirements law to consummate and make effective the transactions contemplated by this Agreement;
(ii) obtain all consents, licenses, permits, waivers, approvals, authorizations or otherwise are reasonably orders required under law (including, without limitation, all foreign and domestic federal, state and local governmental and regulatory rulings and approvals and from parties to obtaincontracts) required in connection with the authorization, in execution and delivery of this Agreement and the case consummation by them of Sellersthe transactions contemplated by this Agreement, including, without limitation, the Authorizations set forth in Schedule 3.05 Merger; and
(iii) make all necessary filings, and thereafter make any other required submissions, with respect to the Sellers' Disclosure Letter and, in the case of the Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers this Agreement and the Buyer Parties shall Merger required under (A) the Securities Act and the Exchange Act and the rules and regulations thereunder, and any other applicable federal or state securities laws, (B) the Xxxx-Xxxxx-Xxxxxx Act (if applicable), and (C) any other applicable law. The Merging Companies and the Shareholders will cooperate with each other in connection with the making of all such filings, including providing copies of all such documents upon request to the nonfiling party's outside antitrust counsel non-filing parties and their advisors prior to filing and, if requested, shall to accept all reasonable additions, deletions or changes suggested in connection therewithwith such filings. Sellers Each Merging Company and the Buyer Parties shall its Shareholders will furnish or cause to be furnished 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 obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.
(b) Sellers . If at any time after the Effective Time any further action is necessary or desirable to carry out the purposes of this Agreement, then the proper officers and the Buyer Parties shall directors of each timely give, and shall cause their respective Subsidiaries, as applicable, party to give, any notices to third Persons and shall use, and cause their respective Subsidiaries, as applicable, to use, commercially this Agreement will use all reasonable efforts to obtain, in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Lettertake all such necessary action.
(c) Sellers and the Buyer Parties shall each 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 transactions contemplated hereby, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby and (iv) the occurrence or nonoccurrence of any event that would be likely to cause any of the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such notice.
(d) Sellers and the Buyer Parties each agree to cooperate and use commercially reasonable efforts to eliminate the antitrust concern(s) of any Governmental Authority or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this Agreement.
(e) Sellers and the Buyer Parties each agree that the terms and provisions of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d).
Appears in 2 contracts
Samples: Merger Agreement (Janex International Inc), Merger Agreement (Janex International Inc)
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers Upon the terms and subject to the Buyer Parties conditions set forth in this Merger Agreement, Parent, Merger Sub and Company shall each use commercially their reasonable best efforts to take, or to cause to be taken, all actions appropriate action, and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are things necessary, proper or advisable under applicable Legal Requirements Law or otherwise are reasonably 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) obtaining from any Governmental Entities any material licenses required to obtainbe obtained or made by Parent, or any of its Subsidiaries, or Company, in connection with the case authorization, execution and delivery of Sellersthis Merger Agreement and the consummation of the transactions contemplated herein, including, without limitation, the Authorizations set forth in Schedule 3.05 Merger, and (iii) making all necessary filings, and thereafter making any other required submissions, with respect to this Merger Agreement and the Sellers' Disclosure Letter and, in Merger required under (A) the case regulations of the Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers Cognizant Agency and the Buyer Parties (B) any other applicable Law; provided that Parent and Company shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the nonfiling party's outside antitrust counsel non-filing party and its advisors prior to filing and, if requested, shall accept and discussing all reasonable additions, deletions or changes suggested in connection therewith. Sellers Company and the Buyer Parties Parent shall furnish or cause to be furnished each other all information required for any application or other filing to be made in connection with obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each rules and regulations of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.
(b) Sellers and the Buyer Parties shall each timely give, and shall cause their respective Subsidiaries, as applicable, to give, any notices to third Persons and shall use, and cause their respective Subsidiaries, as applicable, to use, commercially reasonable efforts to obtain, in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter.
(c) Sellers and the Buyer Parties shall each 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 applicable Law in connection with the transactions contemplated herebyby this Merger Agreement.
(i) Except as Parent, Merger Sub and Company may otherwise agree, except with respect to Government Contracts, Company and Parent shall each give any notices to third parties, and use their reasonable best efforts to obtain any third-party consents, approvals or waivers (iiA) any notice necessary, proper or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby and (iv) the occurrence or nonoccurrence of any event that would be likely to cause any of the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party advisable to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement Merger Agreement, (B) disclosed or otherwise limit required to be disclosed in the Company Disclosure Schedule or affect the remedies available hereunder Parent Disclosure Schedule, as the case may be, or (C) required to the party receiving such noticeprevent a Company Material Adverse Effect or a Parent Material Adverse Effect.
(dii) Sellers With respect to Government Contracts, after the date hereof, Parent, Merger Sub and the Buyer Parties each agree to cooperate and Company shall use commercially reasonable efforts to eliminate notify the antitrust concern(sother parties to each such Government Contract (each, a “Contracting Party”) of any Governmental Authority or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the execution of this Merger Agreement and the proposed consummation of the transactions, unless Sellers Merger and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation of the other transactions contemplated by this Agreement.
hereby, and shall work together to take such actions and provide such information as any such Contracting Party may require in connection with assigning or novating such Government Contracts (eif required) Sellers and or obtaining the Buyer Parties each agree that the terms and provisions confirmation of the Confidentiality Agreement are hereby incorporated herein by reference and such Contracting Party that such terms and provisions shall Government Contract will continue in full force and effect after the consummation of the Merger (such assignments, novations or confirmations, collectively, “Government Contract Consents”).
(iii) In the event that Company or Parent shall fail to obtain any third-party consent, approval or waiver described in Section 6.01(b)(i) of this Merger Agreement, such Person shall use its reasonable best efforts, and shall take any such actions reasonably requested by the other Person to minimize any adverse effect upon Company and Parent or its Subsidiaries and their respective businesses resulting, or which could reasonably be expected to result after the Effective Time, from the failure to obtain such consent, approval or waiver.
(c) (i) From the date of this Merger Agreement until the ClosingEffective Time or the earlier termination of this Merger Agreement, except as Company and Parent shall promptly notify each other in writing of any pending or, to the knowledge of Company or Parent, threatened action, proceeding or investigation by any Governmental Entity or any other Person (A) challenging or seeking damages in connection with the Merger or the conversion of Company Common Stock into the Merger Consideration pursuant to the Merger or the transactions contemplated hereunder, or (B) seeking to restrain or prohibit the consummation of the Merger or the transactions contemplated hereunder or otherwise provided in Section 11.02(d)limit the right of Parent or its Subsidiaries to own or operate all or any portion of the business or Assets of Company.
Appears in 1 contract
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to From the parties hereto from and after the date of this Agreement Execution Date until the Closing:.
(a) Sellers Seller and the Buyer Parties shall each use all commercially reasonable efforts (i) to take, or to cause to be taken, all actions actions, and to do, or to cause to be done, all thingsthings that, including in either case, are necessary, proper, or advisable under applicable Law or otherwise to consummate and make effective the making transactions contemplated by this Agreement, (ii) to obtain from the relevant Governmental Authorities all Authorizations required to be obtained by Seller or Buyer in connection with the authorization, execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby, and (iii) to make all necessary filings filings, and thereafter to make any other required submissions, that are necessary, proper or advisable under applicable Legal Requirements or otherwise are reasonably required with respect to obtain, in the case of Sellers, the Authorizations set forth in Schedule 3.05 to the Sellers' Disclosure Letter and, in the case of the Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers this Agreement and the transactions contemplated hereby required under any applicable Law. Seller and Buyer Parties shall cooperate with each other in connection with the making of all such filings, including through, among other means, providing copies of all such documents to the nonfiling party's outside antitrust counsel party and its advisors prior to filing and, if requested, shall accept accepting all reasonable additions, deletions deletions, or changes suggested in connection therewith. Sellers Seller and the Buyer Parties shall furnish or cause to be furnished all information required for any application or other filing to be made pursuant to any applicable Law in connection with obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement. Notwithstanding the foregoing, upon reasonable, prior notice to Seller, and after advising Seller concerning the subject matter of the proposed negotiations, Buyer may negotiate directly with the Government of Aruba and all Aruban Governmental Authorities regarding the transactions contemplated hereby, and in connection with such negotiations (except as described in this sentence), Buyer is not required to comply with the preceding two sentences.
(b) Sellers Without limiting the generality of Section 6.2(a), if Seller and Buyer determine that notifications under the HSR Act are required in connection with this Agreement, Seller and Buyer shall each use all commercially reasonable efforts to cause its ultimate parent entity to file, as soon as practicable following the execution of this Agreement, notifications under the HSR Act in connection with the transactions contemplated hereby and to respond as promptly as practicable to any inquiries received from the Federal Trade Commission or the Antitrust Division of the Department of Justice for additional information or documentation and to respond as promptly as practicable to all inquiries and requests received from any other Governmental Authority in connection with antitrust matters relating to the transactions contemplated by this Agreement. Each of Seller and Buyer shall provide to the other a copy of such filing materials under the HSR Act to the other prior to making such filing and the parties hereto shall confer on the matters set forth therein.
(c) Seller and Buyer Parties shall each timely give, and shall give or cause their respective Subsidiaries, as applicable, to give, any be given all notices to third Persons and shall use, and cause their respective Subsidiaries, as applicable, to use, use all commercially reasonable efforts to obtain, in the case of Sellers, (x) the obtain all Third Person Consents set forth (i) required under any Material Contract in Schedule 3.05 connection with the consummation of the transactions contemplated hereby or (ii) otherwise required to prevent a Material Adverse Effect with respect to the Sellers' Disclosure Letter Business or the Company and (y) if so requested in writing by Parentthe Transferred Subsidiary, any additional Third Party Consents set forth in Schedule 3.14 taken as a whole from occurring prior to or after the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure LetterClosing.
(cd) Sellers Seller and the Buyer Parties shall each give prompt notice to the other of the receipt of any written notice or other written communication (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 transactions contemplated hereby, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated herebyhereby (including a general summary of communications between Buyer or Buyer's Affiliates and any Aruban Governmental Authority consistent with Buyer's obligations pursuant to Section 6.2(a)), (iii) from any Actions commenced Governmental Authority or threatened in writing other Person regarding the initiation or threat of initiation of any claims, actions, suits, proceedings, arbitrations, or investigations against, relating to to, or involving or otherwise affecting the Company, Buyer, or Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby hereby, and (iv) from any Person regarding the occurrence or nonoccurrence of any event that the occurrence or nonoccurrence of which would be reasonably likely (A) to cause any of condition to the Closing Conditions obligations of the other party to consummate the transactions contemplated hereby not to be satisfied or of any other change that is reasonably likely satisfied, (B) to cause a breach of the representations, warranties, or covenants of such party under this Agreement Agreement, or (C) to delay or impede the ability of either party Buyer or Seller, respectively, to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c6.2(d) shall cure any breach of any representation or warranty of the party hereto giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party hereto receiving such notice.
(de) Sellers Buyer and the Buyer Parties Seller each agree to cooperate and to use all commercially reasonable efforts vigorously to eliminate the antitrust concern(s) of contest and to resist any Governmental Authority or Court. If there is no commercially reasonable solution to an administrative action, including legislative, administrative, or judicial challenge to the consummation of the transactionsaction, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed reversed, or overturned any Order order (whether temporary, preliminary preliminary, or permanent) of any Court court or other Governmental Authority that is in effect and that restricts, prevents prevents, or prohibits the consummation of the transactions contemplated by this Agreement.
(e) Sellers , including the vigorous pursuit of all available avenues of administrative and judicial appeal and all available legislative action. Each of Buyer and Seller shall take, or cause to be taken, any and all actions, other than the Buyer Parties each agree that disposition of assets or the terms and provisions withdrawal from doing business in particular jurisdictions, required by any Governmental Authority as a condition to the granting of any Authorization necessary for the consummation of the Confidentiality Agreement are transactions contemplated hereby incorporated herein by reference and or as may be required to avoid, lift, vacate, or reverse any legislative, administrative, or judicial action that such terms and provisions shall continue in full force and effect until the Closing, except as would otherwise provided in Section 11.02(d)cause any Closing Condition not to be satisfied.
Appears in 1 contract
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers Upon the terms and subject to the Buyer Parties conditions set forth in this Merger Agreement, the Company and Acquiror shall each use commercially their reasonable best efforts to take, or to cause to be taken, all actions appropriate action, and to do, or to cause to be done, and to assist and cooperate with the other parties in doing all things, including the making of all necessary filings and thereafter any other required submissions, that are things necessary, proper or advisable under applicable Legal Requirements Law or otherwise are reasonably 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) obtaining from any Governmental Entities any material Licenses required to obtainbe obtained or made by Acquiror or the Company or any of their subsidiaries in connection with the authorization, in execution and delivery of this Merger Agreement and the case consummation of Sellersthe transactions contemplated herein, including, without limitation, the Authorizations set forth in Schedule 3.05 Merger, and (iii) making all necessary filings, and thereafter making any other required submissions, with respect to this Merger Agreement and the Sellers' Disclosure Letter and, in Merger required under (A) the case of the Buyer PartiesSecurities Act, the Authorizations set forth in Schedule 4.03 to Exchange Act and any other applicable federal or state securities Laws, (B) the Buyer Parties' Disclosure Letter. Sellers HSR Act and (C) any other applicable Law; provided that -------- Acquiror and the Buyer Parties Company shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the nonfiling party's outside antitrust counsel non-filing party and its advisors prior to filing and, if requested, shall accept and discussing all reasonable additions, deletions or changes suggested in connection therewith. Sellers The Company and the Buyer Parties Acquiror shall furnish or cause to be furnished 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 obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Merger Agreement.
(bi) Sellers The Company and the Buyer Parties Acquiror shall each timely give, and give (or shall cause their respective Subsidiaries, as applicable, subsidiaries to give, ) any notices to third Persons parties, and shall use, and cause their respective Subsidiaries, as applicable, subsidiaries to use, commercially their reasonable best efforts to obtainobtain any third party consents, approvals or waivers (A) necessary, proper or advisable to consummate the transactions contemplated in this Merger Agreement, (B) disclosed or required to be disclosed in the case of SellersCompany Disclosure Schedule or the Acquiror Disclosure Schedule, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in as the case of may be, or (C) required to prevent a Company Material Adverse Effect from occurring prior to or after the Buyer PartiesEffective Time or an Acquiror Material Adverse Effect from occurring prior to or after the Effective Time.
(ii) In the event that either the Company or Acquiror shall fail to obtain any third party consent, approval or waiver described in subsection (b)(i) above, such party shall use its reasonable best efforts, and shall take any such actions reasonably requested by the Third Person Consents set forth in Schedule 4.03 other parties hereto, to minimize any adverse effect upon the Buyer Parties' Disclosure LetterCompany and Acquiror, their respective subsidiaries, and their respective businesses resulting, or which could reasonably be expected to result after the Effective Time, from the failure to obtain such consent, approval or waiver.
(c) Sellers From the date of this Merger Agreement until the Effective Time, the Company and the Buyer Parties Acquiror shall promptly notify each give prompt notice other in writing of any pending or, to the knowledge of the Company or Acquiror (or their respective subsidiaries), threatened action, proceeding or investigation by any Governmental Entity or any other of Person (i) any notice challenging or other communication from any Person alleging that the consent of such Person is or may be required seeking damages in connection with the transactions contemplated hereby, Merger or the conversion of the Company Capital Stock into the Merger Consideration pursuant to the Merger or (ii) any notice seeking to restrain or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to prohibit the consummation of the transactions contemplated hereby and (iv) the occurrence or nonoccurrence of any event that would be likely to cause any of the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement Merger or otherwise limit the right of Acquiror or affect its subsidiaries to own or operate all or any portion of the remedies available hereunder businesses or Assets of the Company or any Subsidiary. The Company and Acquiror shall cooperate with each other in defending any such action, proceeding or investigation, including seeking to the party receiving such noticehave any stay or temporary restraining order entered by any court or other Governmental Entity vacated or reversed.
(d) Sellers and the Buyer Parties each agree to cooperate and use commercially reasonable efforts to eliminate the antitrust concern(s) of any Governmental Authority or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this Agreement.
(e) Sellers and the Buyer Parties each agree that the terms and provisions of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until Concurrently with the Closing, except as Acquiror shall infuse the Company with a sufficient amount of cash necessary and otherwise provided cause the Company and the Subsidiaries to pay and satisfy in Section 11.02(d).full in cash by wire transfer of immediately available funds all of the Company's and the Subsidiaries' indebtedness for borrowed money to (i) AT&T Commercial Finance Corporation ("AT&T CFC") and (ii) Media/Communications Partners III Limited Partnership and ---------- M/C Investors, L.L.C.
Appears in 1 contract
Samples: Merger Agreement (McLeodusa Inc)
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply (a) Subject to the parties hereto from and after the date terms of this Agreement until (including Section 5.6(b)), the Closing:
(a) Sellers Company and the Buyer Parties shall each Parent will use commercially their respective reasonable best efforts to (i) take, or to cause to be taken, all actions appropriate action and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are those things necessary, proper or advisable under applicable Legal Requirements Law or otherwise are reasonably to consummate and make effective the transactions contemplated by this Agreement as promptly as practicable, and (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations or orders required to obtainbe obtained by Parent or the Company or any of their respective Subsidiaries, or to avoid any action or proceeding by any Governmental Entity (including, without limitation, those in connection with the case of SellersHSR Act and any other applicable Competition Laws); provided, however, that the Authorizations set forth in Schedule 3.05 to the Sellers' Disclosure Letter and, in the case of the Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers Company and the Buyer Parties shall Parent will cooperate with each other in connection with (A) determining whether any action by or in respect of, or filing with, any Governmental Entity is required, in connection with the consummation of the Mergers and (B) seeking any such actions, consents, approvals or waivers or making of all any such filings, including providing copies of . The Company and Parent will furnish to each other all such documents to the nonfiling party's outside antitrust counsel prior to filing and, if requested, shall accept all reasonable additions, deletions information reasonably required or changes suggested requested in connection therewith. Sellers and the Buyer Parties shall furnish or cause to be furnished all information required for with any application or other filing to be made under the rules and regulations of any applicable Law in connection with obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.
. The Company and Parent will use their respective reasonable best efforts to give (b) Sellers and the Buyer Parties shall each timely give, and shall or will cause their respective Subsidiaries, as applicable, Subsidiaries to give, ) any notices to third Persons parties, and shall use, and cause their respective Subsidiaries, as applicable, Subsidiaries to use, their commercially reasonable efforts to obtain, in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, obtain any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter.
(c) Sellers and the Buyer Parties shall each give prompt notice to the other of third-party consents (i) any notice necessary, proper or other communication from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated hereby, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby and (iv) the occurrence or nonoccurrence of any event that would be likely to cause any of the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party advisable to consummate the transactions contemplated by this Agreement or (ii) required to fulfill their respective obligations set forth herein. No delivery be disclosed in Section 3.5 of any notice pursuant the Company Disclosure Schedule.
(b) In furtherance and not in limitation of Section 5.6(a), and subject to clause (iv) the remainder of this Section 7.01(c5.6(b), each party hereto agrees to make any required filings with respect to the Mergers pursuant to the HSR Act within ten (10) shall cure Business Days of the date of this Agreement and to make any breach required filings under the Competition Laws of the jurisdictions set forth on Section 3.5 of the Company Disclosure Schedule as soon as reasonably practicable. Each of Parent, each Merger Sub and the Company will (i) cooperate and coordinate with the other in the making of any representation filings or warranty of the party giving such notice contained in this Agreement submissions that are required to be made under any applicable Laws or otherwise limit or affect the remedies available hereunder requested to the party receiving such notice.
(d) Sellers and the Buyer Parties each agree to cooperate and use commercially reasonable efforts to eliminate the antitrust concern(s) of be made by any Governmental Authority or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is Entity in effect and that restricts, prevents or prohibits the consummation of 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 Mergers 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 18a(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 the Parent 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 the Parent Subsidiaries or the Company or the Company Subsidiaries (in each case provided that such action is conditioned on the consummation of the Mergers) (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 perm anent 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 and taking any and all other actions to prevent the entry, enactment or promulgation thereof. Notwithstanding the foregoing, Parent shall not be required to undertake a Divestiture Action if such Divestiture Action would result in a material adverse effect as measured against a company the size of the Company.
(ec) Sellers and Without limiting the Buyer Parties generality of anything contained in this Section 5.6, each agree that party hereto will: (i) give the terms and provisions other parties prompt notice of the Confidentiality Agreement are hereby incorporated herein making or commencement of any request, inquiry, investigation or Proceeding by reference or before any Governmental Entity with respect to the Mergers or any of the other transactions contemplated by this Agreement; (ii) keep the other parties reasonably informed as to the status of any such request, inquiry, investigation or Proceeding; and that such terms (iii) except as may be prohibited by any Governmental Entity or by any applicable Law, 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 Mergers. Each party hereto will consult and provisions shall continue cooperate with the other parties and will consider in full force and effect until good faith the Closingviews 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 Mergers or any of the other transactions contemplated by this Agreement. In addition, except as otherwise provided may be prohibited by any Governmental Entity or by any applicable Law, in Section 11.02(d)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 1 contract
Samples: Merger Agreement (Office Depot Inc)
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to From the parties hereto from and after the date of this Agreement Execution Date until the Closing:
(a) The Sellers and the Buyer Parties shall each use commercially reasonable efforts to (i) take, or to cause to be taken, all actions actions, and to do, or to cause to be done, all thingsthings that, including the making of all necessary filings and thereafter any other required submissionsin either case, that are necessary, proper or advisable under applicable Legal Requirements Law or otherwise are reasonably to consummate and make effective the transactions contemplated by this Agreement and (ii) obtain from the relevant Governmental Authorities all Authorizations required to obtain, in be obtained at or prior to the case of Closing by the Sellers, the Authorizations set forth Company or Buyer in Schedule 3.05 connection with the authorization, execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby. As promptly as practicable, the Sellers and Buyer shall make all necessary filings, including filings under the HSR Act, and thereafter make any other required submissions, with respect to this Agreement and the transactions contemplated hereby required under any applicable Law at or prior to the Sellers' Disclosure Letter andClosing. Buyer and the Sellers shall bear the costs and expenses of their respective filings; provided, in that Buyer and the case Sellers shall each pay 50% of the Buyer Parties, the Authorizations set forth filing fee in Schedule 4.03 to the Buyer Parties' Disclosure Letterconnection with any such filings. The Sellers and the Buyer Parties shall cooperate with each other in connection with the making of all such filings, including by providing copies of all such documents to the nonfiling party's outside antitrust counsel party and its advisors prior to filing and, if requested, shall accept accepting all reasonable additions, deletions or changes suggested in connection therewith. The Sellers and the Buyer Parties shall each use commercially reasonable efforts to furnish or cause to be furnished all information required for any application or other filing to be made pursuant to any applicable Law in connection with obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.
(b) The Sellers and the Buyer Parties shall each timely give, and shall give or cause their respective Subsidiaries, as applicable, to give, any be given all notices to third Persons and shall use, and cause their respective Subsidiaries, as applicable, to use, use commercially reasonable efforts to obtain, in the case of Sellers, (x) the obtain all Third Person Consents (i) set forth in Section 3.3, Section 4.3 and Section 5.3 of the Sellers Disclosure Schedule 3.05 or (ii) required under any Material Contract in connection with the consummation of the transactions contemplated hereby. Within three (3) Business Days following the Execution Date, Buyer shall deliver to the Sellers' Disclosure Letter Sellers a form of notice and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 a form of consent for purposes of giving such notices to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the third Persons and obtaining such Third Person Consents set forth in Schedule 4.03 pursuant to the Buyer Parties' Disclosure Letterthis Section 7.2(b).
(c) The Sellers and the Buyer Parties shall each give prompt notice to the others of the receipt of any written notice or other of written communication from (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 transactions contemplated hereby, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced Governmental Authority or threatened in writing other Person regarding the initiation or threat of initiation of any Proceedings against, relating to to, or involving or otherwise affecting the Seller Companies Company, Buyer or the Buyer Parties, Sellers that relate to the consummation of the transactions contemplated hereby hereby, and (iv) any Person regarding the occurrence or nonoccurrence of any event that the occurrence or nonoccurrence of which would be reasonably likely to (A) cause any of condition to the Closing Conditions obligations of the other party to consummate the transactions contemplated hereby not to be satisfied or of any other change that is reasonably likely to satisfied, (B) cause a breach of the representations, warranties or covenants of such party under this Agreement Agreement, or to (C) delay or impede the ability of either party Buyer or the Sellers, respectively, to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c7.2(c) shall cure any breach of any representation representation, warranty or warranty covenant of the party hereto giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such noticeAgreement.
(d) Sellers Buyer and the Buyer Parties Sellers each agree to cooperate and to use commercially reasonable efforts to eliminate the antitrust concern(s) of vigorously contest and to resist any Governmental Authority or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactionsProceedings, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order order (whether temporary, preliminary or permanent) of any Court court or other Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this Agreement.
(e) Sellers , including the vigorous pursuit of all available avenues of administrative and judicial appeal and all available legislative action. Each of Buyer and the Buyer Parties each agree that Sellers shall take, or cause to be taken, commercially reasonable efforts required by any Governmental Authority as a condition to the terms and provisions granting of any Authorization necessary for the consummation of the Confidentiality Agreement are transactions contemplated hereby incorporated herein or as may be required to avoid, lift, vacate or reverse any legislative, administrative or judicial action that would otherwise cause any Closing Condition not to be satisfied; provided, however, that compliance with this Section 7.2(d) shall not require the parties nor their respective Affiliates to commit to any material divestitures, licenses or hold separate or similar agreements with respect to material assets or material conduct of business arrangements as a condition to obtaining any approvals from any Governmental Authority for any reason in order to consummate and make effective the transactions contemplated by reference and that such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d)this Agreement.
Appears in 1 contract
Samples: Sale and Purchase Agreement (Imperial Sugar Co /New/)
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers The Company, Parent and the Buyer Parties Parent Sub shall each use commercially reasonable its best efforts to to: (i) take, or to cause to be taken, all actions appropriate action, and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are things necessary, proper or advisable under applicable Legal Requirements Law or otherwise are reasonably 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 obtainbe obtained or made by Parent, Parent Sub or the Company or any of their Subsidiaries in connection with the case authorization, execution and delivery of Sellersthis Agreement and the consummation of the transactions contemplated herein, including, without limitation, the Authorizations set forth in Schedule 3.05 Merger; (iii) make all necessary filings, and thereafter make any other required submissions, with respect to the Sellers' Disclosure Letter and, in the case of the Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers this Agreement and the Buyer Parties Merger THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT REQUESTED required under (A) Delaware Law and Florida Law (including holding a stockholders meeting and/or sending notice of merger and appraisal rights) and the federal securities laws and the rules and regulations thereunder, if any, and any other applicable federal or state securities laws, and (B) the HSR Act, and (C) any other applicable Law; provided that Parent, Parent Sub and 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 nonfiling party's outside antitrust counsel non-filing party and its advisors prior to filing and, if requested, shall accept accepting all reasonable additions, deletions or changes suggested in connection therewith. Sellers The Company, Parent and the Buyer Parties Parent Sub shall furnish or cause to be furnished 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 obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.
(b) Sellers (i) Each of the Company, Parent and the Buyer Parties Parent Sub shall each timely give, and shall cause each of their respective Subsidiaries, as applicable, Subsidiaries to give, any notices to third Persons parties, and shall use, and cause each of their respective Subsidiaries, as applicable, Subsidiaries to use, commercially reasonable its best efforts to obtainobtain any third party consents (A) necessary, proper or advisable to consummate the transactions contemplated in this Agreement, (B) disclosed or required to be disclosed in the case of Sellersschedules contained herein, (xC) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parentotherwise required under any Contracts, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letterlicenses, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter.
(c) Sellers and the Buyer Parties shall each give prompt notice to the other of (i) any notice leases or other communication from any Person alleging that the consent of such Person is or may be required agreements in connection with the transactions contemplated hereby, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby and herein or (ivD) required to prevent a Company Material Adverse Effect from occurring prior to or after the occurrence Effective Time or nonoccurrence of any event that would be likely a Parent Material Adverse Effect from occurring prior to cause any of or after the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such noticeEffective Time.
(d) Sellers and the Buyer Parties each agree to cooperate and use commercially reasonable efforts to eliminate the antitrust concern(s) of any Governmental Authority or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this Agreement.
(e) Sellers and the Buyer Parties each agree that the terms and provisions of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d).
Appears in 1 contract
Samples: Merger Agreement (Daou Systems Inc)
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers The Company and the Buyer Parties shall each Parent will use their commercially reasonable efforts to (i) take, or to cause to be taken, all actions appropriate action and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are things necessary, proper or advisable under applicable Legal Requirements Law or otherwise are reasonably required to consummate and make effective the transactions contemplated by this Agreement as promptly as practicable, (ii) obtain, or cause their Affiliates to obtain, from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations or orders required to be obtained by Parent or the Company or any of their respective Subsidiaries in connection with the case of Sellers, the Authorizations set forth in Schedule 3.05 to the Sellers' Disclosure Letter and, in the case consummation of the Buyer Partiestransactions contemplated herein, including the Authorizations set forth Merger and (iii) as promptly as reasonably practicable, and in Schedule 4.03 any event within ten Business Days after the date hereof, make, or cause their Affiliates to the Buyer Parties' Disclosure Letter. Sellers make, all necessary filings, and thereafter make any other required submissions, and pay any fees due in connection therewith, with respect to this Agreement and the Buyer Parties shall Merger required under the HSR Act. The Company and Parent will cooperate with each other in connection with (x) preparing and filing the Company Proxy Statement, (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 Merger and (z) seeking any such actions, consents, approvals or waivers or making of all any such filings. The Company and Parent will furnish, including providing copies of all such documents and cause their Affiliates to the nonfiling party's outside antitrust counsel prior furnish, to filing and, if requested, shall accept all reasonable additions, deletions or changes suggested in connection therewith. Sellers and the Buyer Parties shall furnish or cause to be furnished each other all information required for any application or other filing to be made under the rules and regulations of any applicable Law in connection with obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.
(b) Sellers The Company and the Buyer Parties shall each timely give, and shall Parent will give (or will cause their respective Subsidiaries, as applicable, Affiliates to give, ) any notices to third Persons parties, and shall use, and cause their respective Subsidiaries, as applicable, Affiliates to use, their commercially reasonable efforts to obtainobtain any third-party consents, in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter.
(c) Sellers and the Buyer Parties shall each give prompt notice to the other of (i) any notice necessary, proper or other communication from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated hereby, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby and (iv) the occurrence or nonoccurrence of any event that would be likely to cause any of the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party advisable to consummate the transactions contemplated by this Agreement or (ii) required to fulfill their respective obligations set forth herein. No delivery be disclosed in the Company Disclosure Letter or the Parent Disclosure Letter, as applicable.
(c) Without limiting the generality of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice anything contained in this Agreement Section 6.5, each party hereto will, and will cause its respective Affiliates to: (i) give the other parties prompt notice of the making or otherwise limit commencement of any request, inquiry, investigation, action or affect the remedies available hereunder legal 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, action or legal proceeding; and (iii) promptly inform the other parties of any communication to or from the FTC, the Department of Justice or any other Governmental Entity regarding the Merger. 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 receiving hereto will permit, and will cause its Affiliates to permit, authorized Representatives of the other parties to be present at each meeting or conference relating to such noticerequest, 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) Sellers Each of Parent, Merger Sub and the Buyer Parties each agree to Company will, and will cause its Affiliates to, (i) cooperate and use commercially reasonable efforts to eliminate coordinate with each other in the antitrust concern(s) 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 Authority or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is Entity in effect and that restricts, prevents or prohibits the consummation of connection with the transactions contemplated by this Agreement, (ii) supply each other or each other’s 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 FTC, 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, and (iv) use its commercially reasonable efforts to cause the expiration or termination of the applicable waiting periods under any applicable Competition Laws as soon as reasonably practicable.
(e) Sellers and Nothing contained in this Section 6.5 will require, or be construed to require, Parent or any of its Affiliates to proffer to, or agree to, sell, divest, lease, license, transfer, dispose of or otherwise encumber or hold separate, before or after the Buyer Parties each Effective Time, any of the assets, licenses, operations, rights, products or businesses held by Parent, the Company or any of their respective Affiliates prior to the Effective Time, or any interest therein, or to agree that to any material change (including through a licensing arrangement) or restriction on, or other impairment of Parent’s or any of its Affiliates’ ability to own, manage or operate, any such assets, licenses, operations, rights, products or businesses, or any interest therein, or Parent’s ability to vote, transfer, receive dividends or otherwise exercise full ownership rights with respect to the stock of the Surviving Corporation (any of the actions referred to in this Section 6.5(e), a “Non-Required Remedy”).
(f) Notwithstanding anything to the contrary in this Agreement, nothing contained in this Agreement will give Parent or Merger Sub, directly or indirectly, the right to control or direct the operations of the Company prior to the Effective Time. Prior to the Effective Time, the Company will exercise, consistent with the terms and provisions conditions of the Confidentiality Agreement are hereby incorporated herein by reference this Agreement, complete control and that such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d)supervision over its operations.
Appears in 1 contract
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers Each Company, Hanger and the Buyer Parties shall each use commercially reasonable its best efforts to to: (i) take, or to cause to be taken, all actions appropriate action, and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are things necessary, proper or advisable under applicable Legal Requirements Law or otherwise are reasonably 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 obtainbe obtained or made by Hanger, Buyer or each Company in connection with the case authorization, execution and delivery of Sellersthis Agreement and the consummation of the transactions contemplated herein, including, without limitation, the Authorizations set forth in Schedule 3.05 Purchase; (iii) make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement and the Sellers' Disclosure Letter and, in the case merger or liquidation of the Buyer Parties, the Authorizations set forth in Schedule 4.03 to Companies into the Buyer Parties' Disclosure Letter. Sellers as of the Closing Date or immediately following the Closing Date required under the federal securities laws and the rules and regulations thereunder, if any, and any other applicable federal or state securities laws, and (B) any other applicable Law; provided that Hanger, Buyer Parties and each Company shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the nonfiling party's outside antitrust counsel non-filing party and its advisors prior to filing and, if requested, shall accept accepting all reasonable additions, deletions or changes suggested in connection therewith. Sellers Each Company, Hanger and the Buyer Parties shall furnish or cause to be furnished 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 obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.
(bi) Sellers Each of the Companies, Hanger and the Buyer Parties shall each timely give, and shall cause their respective Subsidiaries, as applicable, to give, give any notices to third Persons and shall useparties, and cause their respective Subsidiaries, as applicable, to use, commercially reasonable use its best efforts to obtainobtain any third party consents (A) necessary, proper or advisable to consummate the transactions contemplated in this Agreement, (B) disclosed or required to be disclosed in the case of Sellersschedules contained herein, (xC) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parentotherwise required under any Contracts, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letterlicenses, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter.
(c) Sellers and the Buyer Parties shall each give prompt notice to the other of (i) any notice leases or other communication from any Person alleging that the consent of such Person is or may be required agreements in connection with the transactions contemplated hereby, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby and herein or (ivD) required to prevent a Company Material Adverse Effect from occurring prior to or after the occurrence Closing Date or nonoccurrence of any a Hanger Material Adverse Effect from occurring prior to or after the Closing Date.
(ii) In the event that would be likely any party shall fail to cause obtain any of the Closing Conditions of third party consent described in subsection (b) (i) above, such party shall use its best efforts, and shall take any such actions reasonably requested by the other party not hereto, to be satisfied or of minimize any other change that is reasonably likely to cause a breach of adverse effect upon the covenants of such party under this Agreement or to delay or impede the ability of either party to consummate the transactions contemplated by this Agreement or to fulfill Companies, Hanger and Buyer and their respective obligations set forth herein. No delivery of any notice pursuant businesses resulting, or which could reasonably be expected to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of result after the party giving Closing Date, from the failure to obtain such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such noticeconsent.
(d) Sellers and the Buyer Parties each agree to cooperate and use commercially reasonable efforts to eliminate the antitrust concern(s) of any Governmental Authority or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this Agreement.
(e) Sellers and the Buyer Parties each agree that the terms and provisions of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d).
Appears in 1 contract
Samples: Stock Purchase Agreement (Hanger Orthopedic Group Inc)
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to During the parties hereto from and after the date of this Agreement until the ClosingInterim Period:
(a) Sellers Subject to Seller’s and Buyer’s additional Obligations in clauses (b), (c) and (d) of this Section 6.2 and the other terms and conditions of this Agreement (including the provisions of Section 6.4), Seller and Buyer Parties shall each use commercially reasonable efforts Commercially Reasonable Efforts to (i) take, or to cause to be taken, all actions actions, and to do, or to cause to be done, all thingsthings that, including the making of all necessary filings and thereafter any other required submissionsin either case, that are necessary, proper or advisable under applicable Legal Requirements Law or otherwise are reasonably to consummate and make effective the Contemplated Transactions; provided, however, that the foregoing shall not require or cause any Party to waive any right it may have under other provisions of this Agreement and (ii) obtain from the relevant Governmental Authorities all Authorizations required to obtainbe obtained at or prior to the Closing by Buyer, Seller or the Company in connection with the authorization, execution, delivery and performance of this Agreement and the Related Agreements and the consummation of the Contemplated Transactions.
(b) As promptly as practicable, Seller and Buyer shall make all necessary filings and registrations referred to in the case of SellersSeller Disclosure Schedule or the Buyer Disclosure Schedule, as applicable, and thereafter make any other required submissions, with respect to this Agreement and the Authorizations set forth in Schedule 3.05 Contemplated Transactions required under any Law at or prior to the Sellers' Disclosure Letter andClosing. Buyer and Seller shall bear the costs and expenses of their respective filings; provided, that Buyer shall pay the filing fee in the case of the connection with any such filings. Seller and Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers and the Buyer Parties shall reasonably cooperate with each other in connection with the making of all such filings, including providing copies of all such documents filings and subsequent submissions to any Governmental Authority. Seller and Buyer shall each use Commercially Reasonable Efforts to furnish to the nonfiling party's outside antitrust counsel prior to filing and, if requested, shall accept all other Party such necessary information and reasonable additions, deletions or changes suggested in connection therewith. Sellers and assistance as the Buyer Parties shall furnish or cause to be furnished all information required for any application or other filing to be made Party may reasonably request in connection with obtaining the foregoing and will keep the other Party reasonably informed with respect to any such Authorizationsconsent, authorization, order or approval sought from, or exemption, review, investigation or inquiry conducted by, any Governmental Authority in connection with this Agreement and the Contemplated Transactions. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to Each Party shall (i) make their initial HSR Act filings have the right to review in respect of this transaction on or prior advance, and to the 21st day after extent practicable consult on, any written materials submitted to any Governmental Authority in connection with the date hereof Contemplated Transactions, and (ii) to comply as expeditiously as possible consult with all lawful requests of Governmental Authorities for additional information and documents pursuant to consider in good faith the HSR Act. Each views of the parties further agrees thatother Party, except with the prior consent of ICOto making any submission, in the case of the Buyer Parties, providing any material correspondence or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter entering into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.
(b) Sellers and the Buyer Parties shall each timely give, and shall cause their respective Subsidiaries, as applicable, to give, any notices to third Persons and shall use, and cause their respective Subsidiaries, as applicable, to use, commercially reasonable efforts to obtain, in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 with respect to the Sellers' Disclosure Letter and (y) if so requested in writing by ParentContemplated Transactions. Notwithstanding the foregoing, Buyer shall not make any additional Third Party Consents set forth in Schedule 3.14 to filings or registrations during the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure LetterInterim Period with any Governmental Authorities without Seller’s prior written consent.
(c) Sellers Buyer and the Buyer Parties Seller shall each give prompt notice to the other of the receipt of and if in writing, furnish the others with copies of (ior, in the case of oral communications, advise the others of the contents of) any notice or other communication from (i) any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated herebyContemplated Transactions, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated herebyContemplated Transactions, (iii) any Actions commenced Governmental Authority or threatened in writing other Person regarding the initiation or threat of initiation of any Claims or Proceedings against, relating to to, or involving or otherwise affecting the Company, Buyer or Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby Contemplated Transactions, and (iv) any Person regarding the occurrence or nonoccurrence of any event that the occurrence or nonoccurrence of which would be reasonably likely to (A) cause any of condition to the Closing Conditions Obligations of the other party Party to consummate the Contemplated Transactions not to be satisfied or of any other change that is reasonably likely to satisfied, (B) cause a breach of the representations, warranties or covenants of such party Party under this Agreement Agreement, or to (C) delay or impede the ability of either party Buyer or Seller, respectively, to consummate the transactions contemplated by this Agreement Contemplated Transactions or to fulfill their respective obligations Obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such notice.
(d) Sellers Buyer and the Buyer Parties Seller each agree to cooperate and to use commercially reasonable efforts Commercially Reasonable Efforts to eliminate the antitrust concern(s) of contest and to resist any Governmental Authority or Court. If there is no commercially reasonable solution to an action, including legislative, administrative or judicial challenge to the consummation of the transactionsaction, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court court or other Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by Contemplated Transactions or the Related Agreements, including the pursuit of all available avenues of administrative and judicial appeal and all available legislative action. Notwithstanding the foregoing, nothing in this Section 6.2 shall require, or be construed to require any Party or its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of the Parties or any of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, could reasonably be expected to result in a Material Adverse Effect or materially and adversely impact the economic or business benefits to the Parties of the Contemplated Transactions; or (iii) any material modification or waiver of the terms and conditions of this Agreement. Neither Buyer nor Seller nor any of their respective Affiliates shall purchase or otherwise acquire or agree to purchase or otherwise acquire, whether directly or indirectly, any assets or interest in any assets or Persons that would reasonable be expected to materially and adversely affect the filings made pursuant to Section 6.2(b).
(e) Sellers Seller and Buyer shall each timely give or cause to be given all notices to third Persons and use Commercially Reasonable Efforts to obtain all Third Person Consents (i) set forth in Section 3.3(a) of the Seller Disclosure Schedule and Section 5.3(a) of the Buyer Parties Disclosure Schedule, (ii) required under any Material Company Contract or Seller Contract in connection with the consummation of the Contemplated Transactions or (iii) otherwise required to prevent a Material Adverse Effect from occurring prior to or after the Closing.
(f) Buyer shall use Commercially Reasonable Efforts to secure the release of Seller and its Affiliates (excluding the Company) from liability for any post-Closing Obligations of the Company under any Authorizations or Material Contracts assigned or transferred from Seller or its Affiliates to the Company, and to secure the release of Seller and its Affiliates (excluding the Company) from any guarantees of the Company’s post-Closing Obligations under any Authorizations or Material Contracts to which the Company remains a party after Closing. Buyer acknowledges that Seller and its Affiliates shall have the right to cancel or revoke all guarantees, bonds, letters of credit and similar undertakings provided by them or on their behalf to secure any post-Closing Obligations of the Company. The provisions of this paragraph shall survive the Closing.
(g) Notwithstanding Section 6.2(f), prior to the Closing Buyer shall deliver to the applicable beneficiary or counterparty replacement or substitute guaranties, letters of credit, bonds, security deposits, and other surety obligations and evidence of financial capacity, in each agree that case acceptable to the relevant beneficiary or counterparty, in substitution and replacement of those credit support arrangements set forth in Schedule 6.2(g) (the “Credit Support Arrangements”), in form and substance acceptable to Seller, and shall cause the release as of the Closing of Seller and its Affiliates (excluding the Company) from all Obligations relating to the Credit Support Arrangements.
(h) At Buyer’s request and expense, Seller shall use Commercially Reasonable Efforts (solely as an accommodation to Buyer) to assist Buyer in connection with Buyer’s efforts to apply for Authorizations pursuant to Environmental Laws and application of Buyer’s precise development plan for the Refinery all of which would be effective from and after the Closing Date with respect to equipment which would be materially required to operate the Refinery as a renewable diesel plant after the Closing Date, including Authorizations for two (2) de-oxidation hydro-processing units and an isomerization unit. Seller’s assistance will be on terms and provisions conditions mutually agreeable to Seller and Buyer, including that (i) Seller and its Affiliates shall not be required to pay any fee or incur any Obligation in connection with such Authorizations, (ii) such assistance does not unreasonably interfere with the operations of the Confidentiality Agreement are hereby incorporated herein Assets or the Business, and (iii) Seller shall not be required to prepare or provide information or materials which Seller or its Affiliates do not maintain in the ordinary course of business. Applying for or obtaining such Authorizations by reference and that such terms and provisions Buyer shall continue in full force and effect until not constitute a condition to Closing or form the basis for delaying Closing, except as otherwise provided in Section 11.02(d).
Appears in 1 contract
Samples: Share Purchase Agreement (Global Clean Energy Holdings, Inc.)
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to Each Buyer and Vertex, on the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers one hand, and the Buyer Parties Equity Owner and Sellers, on the other hand, shall each use all commercially reasonable efforts to to: (i) take, or to cause to be taken, all actions appropriate action, and to do, or to cause to be done, all thingsthings necessary, proper, or advisable under applicable Law to consummate and make effective the transactions contemplated by this Agreement; (ii) obtain all consents, licenses, Permits, waivers, approvals, authorizations, or Orders required under Law (including all foreign and domestic (federal, state, and local) governmental and regulatory rulings and approvals and parties to Contracts) in connection with the making authorization, execution, and delivery of this Agreement and the consummation of the transactions contemplated hereby; and (iii) make all necessary filings filings, and thereafter make any other required submissions, that are necessary, proper or advisable with respect to this Agreement and the transactions contemplated hereby required under applicable Legal Requirements or otherwise are reasonably required to obtainLaw; provided, in the case of Sellershowever, the Authorizations set forth in Schedule 3.05 to the Sellers' Disclosure Letter and, in the case of the Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. that Buyers and Sellers (and the Buyer Parties Equity Owner) shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the nonfiling party's outside antitrust counsel non-filing party and its advisors prior to filing and, if requested, shall to accept all reasonable additions, deletions deletions, or changes suggested in connection therewith. Sellers Each Buyer and Vertex, on the one hand, and the Buyer Parties Equity Owner and Sellers, on the other hand, shall furnish or cause to be furnished 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 obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.
(b) Sellers . Prior to the applicable Closing Date, each Buyer and Vertex and each Seller and the Buyer Parties Equity Owner shall each timely give, and shall cause their respective Subsidiaries, as applicable, to give, any notices to third Persons and shall use, and cause their respective Subsidiaries, as applicable, to use, use commercially reasonable efforts and cooperate to obtain, in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter.
(c) Sellers and the Buyer Parties shall each give prompt notice to the other of (i) respond at the earliest practicable date to any notice requests for additional information made by any Governmental Authority with respect to all filings made under applicable Laws, (ii) take all actions reasonably necessary to cause the waiting periods for all filings made under applicable Laws to terminate or other communication from expire as soon as practical and (iii) take or cause to be taken all actions reasonably necessary to obtain any Person alleging that appropriate approvals of any Governmental Authority, all to the consent end of such Person is or may be required in connection with expediting consummation of the transactions contemplated hereby, (ii) . Buyers and Sellers each agree to promptly inform each other of any notice or other material communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) regarding any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby and (iv) the occurrence or nonoccurrence of shall permit each other to review in advance any event that would be likely proposed communication to cause any of the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such notice.
(d) Sellers and the Buyer Parties each agree to cooperate and use commercially reasonable efforts to eliminate the antitrust concern(s) of any Governmental Authority Authority, subject to applicable Law, and provided that each such Party shall not be required to provide to each other with any documents or Court. If there is no commercially reasonable solution other materials related to an administrative or judicial challenge to the consummation of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation a Party's valuation of the transactions contemplated by this Agreement.
(e) Sellers and the Buyer Parties each agree that the terms and provisions of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d).
Appears in 1 contract
Appropriate Action; Consents; Filings. The covenants Each of Microfluidics, IDEX and the Purchaser has agreed to use its commercially reasonable efforts to (i) take all appropriate action and do all things necessary, proper or advisable under applicable law or otherwise to complete the transactions contemplated by the Merger Agreement as promptly as practicable; (ii) obtain from any governmental entities any consents, licenses, permits, waivers, approvals, authorizations or orders required to be obtained by Microfluidics or IDEX or any of their respective subsidiaries, or to avoid any action or proceeding by any governmental entity in this Section 7.01 shall apply connection with the authorization, execution and delivery of the Merger Agreement and the completion of the transactions contemplated thereby; and (iii) as promptly as reasonably practicable, make all necessary filings and submissions, and pay any related fees, with respect to the parties hereto from and after Merger Agreement, the date of this Agreement until the Closing:
(a) Sellers Offer and the Buyer Parties shall Merger required under the Exchange Act and any other applicable securities laws and any other applicable law. Microfluidics and IDEX have agreed to cooperate with each other in connection with preparing and filing any filings or documents described above and with seeking any actions, consents, approvals or waivers of governmental entities or other third parties in connection with the transactions contemplated by the Merger Agreement. Each of Microfluidics and IDEX has agreed to give any notices to third parties and to use commercially reasonable efforts to take, or to cause to be taken, all actions and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter obtain any other required submissions, third party consents that are necessary, proper or advisable under applicable Legal Requirements or otherwise are reasonably to complete the transactions contemplated by the Merger Agreement, required to obtainbe disclosed by Microfluidics to the Purchaser in a disclosure schedule to the Merger Agreement, or required to prevent a Company Material Adverse Effect from occurring prior to or after the completion of the Merger. If either party fails to obtain any 45 Table of Contents third party consent, that party will use its commercially reasonable efforts, and will take any actions reasonably requested by the other party, to minimize any adverse effect upon Microfluidics and IDEX, their respective subsidiaries and their respective businesses resulting, or which could reasonably be expected to result, after the completion of the Offer or the Merger, from the failure to obtain such consent. Neither IDEX nor the Purchaser is required to, and neither Microfluidics nor its subsidiary will without the written consent of IDEX, make any payment to or commit to pay any third party or agree to incur any liability or other obligation, in the case of Sellers, the Authorizations set forth in Schedule 3.05 order to obtain any approval or consent with respect to the Sellers' Disclosure Letter andOffer or the Merger. The Purchaser, in IDEX and Microfluidics will promptly notify the case others of the Buyer Partiesmaking or commencement of any request, the Authorizations set forth in Schedule 4.03 inquiry, investigation, action or legal proceeding by or before any governmental entity with respect to the Buyer Parties' Disclosure Letter. Sellers and Offer or the Buyer Parties shall cooperate with Merger, keep each other informed as to the status of such request, inquiry, investigation, action or legal proceeding, and promptly inform the others of any communication with any governmental entity regarding the Offer or the Merger. The Merger Agreement provides that, in connection with the making receipt of all such filingsany necessary approvals or clearances of a governmental entity, including providing copies neither IDEX nor Microfluidics (nor any of all such documents their subsidiaries) is 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 business in a specified manner or enter into a voting trust arrangement, proxy arrangement, “hold separate” agreement or similar agreement, or permit the nonfiling party's outside antitrust counsel prior to filing andsale, if requestedholding separate or other disposition of, shall accept all reasonable additionsany assets of IDEX, deletions Microfluidics or changes suggested in connection therewiththeir respective subsidiaries or affiliates. Sellers Public Announcements. Microfluidics, IDEX and the Buyer Parties shall furnish or cause to be furnished all information required for any application Purchaser have agreed that no press release or other filing to announcement concerning the transactions contemplated by the Merger Agreement will be made in connection with obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with issued without the prior consent of ICOMicrofluidics and IDEX, in except as required by applicable law or by the case rules or regulations of any applicable U.S. securities exchange or regulatory or governmental entity to which the Buyer Partiesdisclosing party is subject. In which event, or Parentwith limited exceptions, in the case of Sellers, it party seeking to make such disclosure will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.
(b) Sellers and the Buyer Parties shall each timely give, and shall cause their respective Subsidiaries, as applicable, to give, any notices to third Persons and shall use, and cause their respective Subsidiaries, as applicable, to use, commercially use reasonable best efforts to obtain, in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter.
(c) Sellers and the Buyer Parties shall each 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 transactions contemplated hereby, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby and (iv) the occurrence or nonoccurrence of any event that would be likely to cause any of the Closing Conditions of provide the other party not reasonable time to be satisfied comment on such release or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such noticeannouncement.
(d) Sellers and the Buyer Parties each agree to cooperate and use commercially reasonable efforts to eliminate the antitrust concern(s) of any Governmental Authority or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this Agreement.
(e) Sellers and the Buyer Parties each agree that the terms and provisions of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d).
Appears in 1 contract
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to the parties hereto from and after From the date of this Agreement until the Closing:
(a) Sellers Seller and the Buyer Parties shall each use all commercially reasonable efforts (i) to take, or to cause to be taken, all actions actions, and to do, or to cause to be done, all thingsthings that, including in either case, are necessary, proper, or advisable under applicable Law or otherwise to consummate and make effective the making transactions contemplated by this Agreement, (ii) to obtain from the relevant Governmental Authorities all Authorizations required to be obtained by Seller or Buyer in connection with the authorization, execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby, and (iii) to make all necessary filings filings, and thereafter to make any other required submissions, that are necessary, proper or advisable under applicable Legal Requirements or otherwise are reasonably required with respect to obtain, in the case of Sellers, the Authorizations set forth in Schedule 3.05 to the Sellers' Disclosure Letter and, in the case of the Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers this Agreement and the transactions contemplated hereby required under any applicable Law. Seller and Buyer Parties shall cooperate with each other in connection with the making of all such filings, including through, among other means, providing copies of all such documents to the nonfiling party's outside antitrust counsel party and its advisors prior to filing and, if requested, shall accept accepting all reasonable additions, deletions deletions, or changes suggested in connection therewith. Sellers Seller and the Buyer Parties shall furnish or cause to be furnished all information required for any application or other filing to be made pursuant to any applicable Law in connection with obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.
(b) Sellers Without limiting the generality of Section 6.2(a), each of Seller and Buyer shall use its reasonable best efforts to respond as promptly as practicable to any inquiries received from the Federal Trade Commission or the Antitrust Division of the Department of Justice for additional information or documentation with respect to the HSR Act filings and to respond as promptly as practicable to all inquiries and requests received from any State Attorney General or other Governmental Authority in connection with antitrust matters relating to the transactions contemplated by this Agreement. Each party hereto shall provide a copy of its filing materials under the HSR Act to the other party hereto (excluding any Restricted Information) prior to making such filing and the parties hereto shall confer on the matters set forth therein.
(c) Seller and Buyer Parties shall each timely give, and shall give or cause their respective Subsidiaries, as applicable, to give, any be given all notices to third Persons and shall use, and cause their respective Subsidiaries, as applicable, to use, use all commercially reasonable efforts to obtain, in the case of Sellers, (x) the obtain all Third Person Consents set forth (i) required under any Assumed Contract in Schedule 3.05 connection with the consummation of the transactions contemplated hereby or (ii) otherwise required to prevent a Material Adverse Effect with respect to the Sellers' Disclosure Letter Assets from occurring prior to or after the Closing. If any Authorization or Third Party Consent required for the assignment of any Assumed Contract to Buyer is not obtained on or prior to the Closing Date (without any consent fee or other consideration to be paid by Seller to the Counterparty thereunder for such assignment except for Pre-Closing Determined Cure Amounts), then, notwithstanding anything to the contrary in this Agreement, such Assumed Contract shall not be assigned to Buyer at Closing, and thereafter (1) the parties hereto shall continue to use all commercially reasonable efforts to obtain the required Authorization or Third Person Consent for a reasonable period of time after the Closing Date and, if such Authorization or Third Person Consent is obtained after the Closing Date, such Assumed Contract shall be assigned to Buyer as soon as reasonably practicable after such Authorization or Third Person Consent is obtained, (2) if such Authorization or Third Person Consent is not obtained within a reasonable time after the Closing Date, Seller shall have the right to terminate such Assumed Contract, and (y3) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 with respect to the Sellers' Disclosure Letterperiod of time from the Closing Date until such Assumed Contract is assigned to Buyer or such Assumed Contract is terminated by Seller, andSeller and Buyer shall enter into such arrangements as shall be reasonably practicable such that the economic and other costs and benefits of such Assumed Contract shall be passed through from Seller to Buyer and such that Buyer shall indemnify, in defend, and hold harmless Seller from and against all liabilities arising under such Assumed Contract from and after the case Closing Date. Any out-of-pocket costs associated with obtaining such consents except the consents of the holders of indebtedness shall be borne one-half by Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letterand one-half by Seller.
(cd) Sellers Seller and the Buyer Parties shall each give prompt notice to the other of the receipt of any written notice or other written communication (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 transactions contemplated hereby, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) from any Actions commenced Governmental Authority or threatened in writing other Person regarding the initiation or threat of initiation of any claims, actions, suits, proceedings, arbitrations, or investigations against, relating to to, or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby hereby, and (iv) from any Person regarding the occurrence or nonoccurrence of any event that the occurrence or nonoccurrence of which would be reasonably likely (A) to cause any of condition to the Closing Conditions obligations of the other party hereto to consummate the transactions contemplated hereby not to be satisfied or of any other change that is reasonably likely satisfied, (B) to cause a breach of the representations, warranties, or covenants of such party under this Agreement Agreement, or (C) to delay or impede the ability of either party Seller or Buyer, respectively, to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c6.2(d) shall cure any breach of any representation or warranty of the party hereto giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party hereto receiving such notice.
(de) Sellers Seller and the Buyer Parties each agree to cooperate and to use all commercially reasonable efforts vigorously to eliminate the antitrust concern(s) of contest and to resist any Governmental Authority or Court. If there is no commercially reasonable solution to an administrative action, including legislative, administrative, or judicial challenge to the consummation of the transactionsaction, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed reversed, or overturned any Order order (whether temporary, preliminary preliminary, or permanent) of any Court court or other Governmental Authority that is in effect and that restricts, prevents prevents, or prohibits the consummation of the transactions contemplated by this Agreement, including the vigorous pursuit of all available avenues of administrative and judicial appeal and all available legislative action. Notwithstanding the foregoing, the Valero Parties shall not be required to dispose of any assets or withdraw from doing business in particular jurisdictions if required by any Governmental Authority as a condition to the granting of any Authorization necessary for the consummation of the transactions contemplated hereby or as 27 may be required to avoid, lift, vacate, or reverse any legislative, administrative, or judicial action that would otherwise cause any Closing Condition not to be satisfied.
(ef) Sellers and the Buyer Parties each agree that the terms and provisions of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until Prior to the Closing, except as otherwise provided Valero shall file the Certificate of Designation with the Office of the Secretary of State of the State of Delaware in Section 11.02(d)accordance with the requirements of the General Corporation Law of the State of Delaware.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Valero Energy Corp/Tx)
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers Subject to the terms and conditions herein provided, the Buyer Parties Company, Acquiror and Acquiror Sub shall each use commercially all reasonable best efforts to (i) take, or to cause to be taken, all actions appropriate action, and to do, do or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are things necessary, proper or advisable under applicable Legal Requirements law or otherwise are reasonably to consummate and make effective the transactions contemplated by this Agreement as promptly as practicable, (ii) obtain from any Governmental Entities any consents, licenses or orders required to obtainbe obtained by Acquiror or the Company or any of their respective Subsidiaries in connection with the authorization, in execution and delivery of this Agreement and the case consummation of Sellersthe transactions contemplated by this Agreement, including, without limitation, the Authorizations set forth in Schedule 3.05 Merger, and (iii) make all necessary notifications and filings and thereafter make any other required submissions with respect to this Agreement and the Sellers' Disclosure Letter and, in Merger required under (A) any applicable rules or regulations under any securities exchange on which any securities of Acquiror are listed or the case of the Buyer PartiesSecurities Act, the Authorizations set forth in Schedule 4.03 to Exchange Act, any other applicable federal or state securities laws or the Buyer Parties' Disclosure Letter. Sellers rules or regulations thereunder, and (B) any other applicable law; provided that Acquiror and the Buyer Parties Company shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the nonfiling party's outside antitrust counsel prior to filing and, if requested, shall accept all reasonable additions, deletions or changes suggested in connection therewith. Sellers The Company and the Buyer Parties Acquiror shall furnish or cause to be furnished 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 obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.
(bi) Sellers The Company and the Buyer Parties Acquiror shall each timely give, and shall give (or cause their respective Subsidiaries, as applicable, Subsidiaries to give, ) any notices to third Persons parties, and shall use, and cause their respective Subsidiaries, as applicable, Subsidiaries to use, commercially all reasonable best efforts to obtainobtain any third-party consents, (A) necessary to consummate the transactions contemplated in this Agreement, (B) disclosed or required to be disclosed in the disclosure schedules to this Agreement, or (C) required to prevent a Company Material Adverse Effect from occurring prior to the Effective Time.
(ii) Subject to Section 7.2(c), in the case of Sellersevent that any party shall fail to obtain any third-party consent described in subsection (b)(i) above, (x) such party shall use reasonable efforts, and shall take any such actions reasonably requested by the Third Person Consents set forth in Schedule 3.05 other party to minimize any adverse effect upon the Sellers' Disclosure Letter parties, their Subsidiaries and (y) if so requested in writing by Parentbusinesses resulting, any additional Third Party Consents set forth in Schedule 3.14 or which could reasonably be expected to result after the Sellers' Disclosure LetterEffective Time, and, in from the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 failure to the Buyer Parties' Disclosure Letterobtain such consent.
(c) Sellers and From the Buyer Parties date of this Agreement until the Effective Time, the Company shall each give prompt notice promptly notify Acquiror in writing of any pending or, to the knowledge of the Company, threatened action, proceeding or investigation by an Governmental Entity or any other of Person (i) any notice challenging or other communication from any Person alleging that the consent of such Person is or may be required seeking material damages in connection with the transactions contemplated hereby, Merger or (ii) any notice seeking to restrain or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to prohibit the consummation of the transactions contemplated hereby and (iv) the occurrence or nonoccurrence of any event that would be likely to cause any of the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement Merger or otherwise limit or affect the remedies available hereunder right of Acquiror or, to the party receiving such noticeknowledge of the Company to own or operate all or any portion of the businesses or assets of the Company.
(d) Sellers and From the Buyer Parties each agree to cooperate and use commercially reasonable efforts to eliminate date of this Agreement until the antitrust concern(s) Effective Time, Acquiror shall promptly notify the Company in writing of any pending or, to the knowledge of Acquiror, threatened action, proceeding or investigation by any Governmental Authority Entity or Court. If there is no commercially reasonable solution any other Person (i) challenging or seeking material damages in connection with the Merger or (ii) seeking to an administrative restrain or judicial challenge to prohibit the consummation of the transactions, unless Sellers and Buyers both agree otherwise, Merger or otherwise limit the Sellers and Buyer Parties will contest right of Acquiror or its Subsidiaries to own or operate all or any judicial action to block the consummation portion of the transactions and attempt to have vacated, lifted, reversed business or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation assets of the transactions contemplated by this AgreementCompany.
(e) Sellers and the Buyer Parties each agree that the terms and provisions of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d).
Appears in 1 contract
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers The Seller and the Buyer Parties shall each use commercially reasonable efforts to (i) take, or to cause to be taken, all actions appropriate action, and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are things necessary, proper or advisable under applicable Legal Requirements Law or otherwise are reasonably to consummate and make effective the Acquisition as promptly as practicable; (ii) obtain in a timely manner from any Governmental Authorities any consents, licenses, permits, waivers, approvals, authorizations or orders required to obtainbe obtained or made by the Buyer or the Seller or any of their subsidiaries in connection with the authorization, in execution and delivery of this Agreement and the case of Sellers, the Authorizations set forth in Schedule 3.05 to the Sellers' Disclosure Letter and, in the case consummation of the Buyer PartiesAcquisition and the other transactions contemplated hereby; and (iii) as promptly as practicable make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement and the Authorizations set forth in Schedule 4.03 to Acquisition required under any applicable Law; provided that the Buyer Parties' Disclosure Letter. Sellers and the Buyer Parties Seller shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the nonfiling party's outside antitrust counsel non-filing party and its advisors prior to filing and, if requested, shall to accept all reasonable additions, deletions or changes suggested in connection therewith. Sellers The Seller and the Buyer Parties shall furnish or cause to be furnished 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 obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.
(bi) Sellers Each of the Buyer and the Buyer Parties Seller shall each timely give, and give (or shall cause their its respective Subsidiaries, as applicable, subsidiaries to give, ) any notices to third Persons parties, and shall use, and cause their its respective Subsidiaries, as applicable, subsidiaries to use, their commercially reasonable efforts to obtainobtain any third party consents, (A) necessary, proper or advisable to consummate the transactions contemplated in this Agreement, (B) disclosed or required to be disclosed in the case of Sellers, Disclosure Schedule or (xC) required to prevent a Material Adverse Effect from occurring prior to or after the Third Person Consents set forth in Schedule 3.05 to Closing Date.
(ii) In the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of event that either the Buyer Partiesor the Seller shall fail to obtain any third party consent described in subsection (b)(i) above, it shall use its commercially reasonable efforts, and shall take any such actions reasonably requested by the Third Person Consents set forth in Schedule 4.03 other party, to minimize any adverse effect upon the Buyer Parties' Disclosure LetterSeller and the Buyer, their respective subsidiaries, and their respective businesses resulting, or which could reasonably be expected to result after the Closing Date, from the failure to obtain such consent.
(c) Sellers and the Buyer Parties Each party shall each give prompt notice to promptly notify the other party in writing of any pending or threatened action, proceeding or investigation by any Governmental Authority or any other person (i) any notice challenging or other communication from any Person alleging that the consent of such Person is or may be required seeking, material damages in connection with the transactions contemplated hereby, Acquisition; or (ii) any notice seeking to restrain or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to prohibit the consummation of the transactions contemplated hereby and (iv) the occurrence or nonoccurrence of any event that would be likely to cause any of the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement Acquisition or otherwise limit the right of Buyer, or affect the remedies available hereunder Buyer's Subsidiaries, to the party receiving such notice.
(d) Sellers and the Buyer Parties each agree to cooperate and use commercially reasonable efforts to eliminate the antitrust concern(s) of own or operate all or any Governmental Authority or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation portion of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed businesses or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this AgreementAcquired Assets.
(e) Sellers and the Buyer Parties each agree that the terms and provisions of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d).
Appears in 1 contract
Samples: Asset Purchase Agreement (Medical Technology Systems Inc /De/)
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers The Company, Parent and the Buyer Parties Parent Sub shall each use commercially reasonable its best efforts to to: (i) take, or to cause to be taken, all actions appropriate action, and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are things necessary, proper or advisable under applicable Legal Requirements Law or otherwise are reasonably 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 obtainbe obtained or made by Parent, Parent Sub or the Company or any of their Subsidiaries in connection with the case authorization, execution and delivery of Sellersthis Agreement and the consummation of the transactions contemplated herein, including, without limitation, the Authorizations set forth in Schedule 3.05 Merger; (iii) make all necessary filings, and thereafter make any other required submissions, with respect to the Sellers' Disclosure Letter and, in the case of the Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers this Agreement and the Buyer Parties Merger required under (A) Delaware Law and Pennsylvania Law (including holding a stockholders meeting and/or sending notice of merger and appraisal rights) and the federal securities laws and the rules and regulations THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. thereunder, if any, and any other applicable federal or state securities laws, and (B) the HSR Act, and (C) any other applicable Law; provided that Parent, Parent Sub and 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 nonfiling party's outside antitrust counsel non-filing party and its advisors prior to filing and, if requested, shall accept accepting all reasonable additions, deletions or changes suggested in connection therewith. Sellers The Company, Parent and the Buyer Parties Parent Sub shall furnish or cause to be furnished 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 obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.
(b) Sellers (i) Each of the Company, Parent and the Buyer Parties Parent Sub shall each timely give, and shall cause each of their respective Subsidiaries, as applicable, Subsidiaries to give, any notices to third Persons parties, and shall use, and cause each of their respective Subsidiaries, as applicable, Subsidiaries to use, commercially reasonable its best efforts to obtainobtain any third party consents (A) necessary, proper or advisable to consummate the transactions contemplated in this Agreement, (B) disclosed or required to be disclosed in the case of Sellersschedules contained herein, (xC) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parentotherwise required under any Contracts, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letterlicenses, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter.
(c) Sellers and the Buyer Parties shall each give prompt notice to the other of (i) any notice leases or other communication from any Person alleging that the consent of such Person is or may be required agreements in connection with the transactions contemplated hereby, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby and herein or (ivD) required to prevent a Company Material Adverse Effect from occurring prior to or after the occurrence Effective Time or nonoccurrence of any event that would be likely a Parent Material Adverse Effect from occurring prior to cause any of or after the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such noticeEffective Time.
(d) Sellers and the Buyer Parties each agree to cooperate and use commercially reasonable efforts to eliminate the antitrust concern(s) of any Governmental Authority or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this Agreement.
(e) Sellers and the Buyer Parties each agree that the terms and provisions of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d).
Appears in 1 contract
Samples: Merger Agreement (Daou Systems Inc)
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to From the parties hereto from and after the date of this Agreement Execution Date until the Closing:
(a) Subject to Sellers’ and Buyer’s additional obligations in clauses (a), (c) and (d) of this Section 6.2, Sellers and the Buyer Parties shall each use commercially reasonable their best efforts to (i) take, or to cause to be taken, all actions actions, and to do, or to cause to be done, all thingsthings that, including the making of all necessary filings and thereafter any other required submissionsin either case, that are necessary, proper or advisable under applicable Legal Requirements Law or otherwise are reasonably required to obtainconsummate and make effective the transactions contemplated by this Agreement, in and (ii) obtain from the case of Sellersrelevant Governmental Authorities all Authorizations necessary, the Authorizations set forth in Schedule 3.05 proper or advisable under Law to be obtained at or prior to the Sellers' Disclosure Letter andClosing by Buyer, in the case Sellers or any of the Millennium Inorganic Companies in connection with the authorization, execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby.
(b) As promptly as practicable, Sellers and Buyer Partiesshall make all necessary filings, including filings under the Authorizations set forth HSR Act and any other Antitrust Law and in Schedule 4.03 connection with any Authorizations, and thereafter make any other required submissions, with respect to this Agreement and the transactions contemplated hereby required under any Law at or prior to the Closing. Buyer Parties' Disclosure Letterand Sellers shall bear the costs and expenses of their respective filings; provided, that Buyer shall pay the filing fee in connection with any such filings. Buyer and Sellers and the Buyer Parties shall cooperate with each other in connection with the making of all such filings, including by providing copies of all such documents to the nonfiling party's outside antitrust counsel party and its advisors prior to filing and, if requested, shall accept accepting all reasonable additions, deletions or changes suggested in connection therewith. Buyer and Sellers and the Buyer Parties shall each use reasonable best efforts to furnish or cause to be furnished all information required for any application or other filing to be made pursuant to any Law in connection with obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.
(b) Sellers and the Buyer Parties shall each timely give, and shall cause their respective Subsidiaries, as applicable, to give, any notices to third Persons and shall use, and cause their respective Subsidiaries, as applicable, to use, commercially reasonable efforts to obtain, in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter.
(c) Buyer and Sellers and the Buyer Parties shall each give prompt notice to the others of the receipt of any written notice or other of written communication from (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 transactions contemplated hereby, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced Governmental Authority or threatened in writing other Person regarding the initiation or threat of initiation of any Claims against, relating to to, or involving or otherwise affecting the Seller Companies Millennium Inorganic Companies, Buyer or the Buyer Parties, Sellers that relate to the consummation of the transactions contemplated hereby hereby, and (iv) any Person regarding the occurrence or nonoccurrence of any event that the occurrence or nonoccurrence of which would be reasonably likely to (A) cause any of condition to the Closing Conditions obligations of the other party to consummate the transactions contemplated hereby not to be satisfied or of any other change that is reasonably likely to satisfied, (B) cause a breach of the representations, warranties or covenants of such party under this Agreement Agreement, or to (C) delay or impede the ability of either party Buyer or Sellers, respectively, to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c6.2(c) shall cure any breach of any representation representation, warranty or warranty covenant of the party hereto giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such noticeAgreement.
(d) Sellers and the Buyer Parties each agree to cooperate and shall use commercially reasonable their best efforts to eliminate the antitrust concern(s) of vigorously contest and to resist any Governmental Authority or Court. If there is no commercially reasonable solution to an action, including legislative, administrative or judicial challenge to the consummation of the transactionsaction, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order order (whether temporary, preliminary or permanent) of any Court court or other Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this Agreement.
(e) Sellers , including the vigorous pursuit of all available avenues of administrative and judicial appeal and all available legislative action. Notwithstanding anything to the contrary in this Agreement, Buyer Parties each agree that shall take, or cause to be taken, any and all actions, including the terms and provisions disposition of assets, required by any Governmental Authority as a condition to the granting of any Authorization necessary for the consummation of the Confidentiality Agreement transactions contemplated hereby or as may be required to avoid, lift, vacate or reverse any legislative, administrative or judicial action that would otherwise cause any Closing Condition not to be satisfied. Without limiting the generality of the foregoing, such actions may include, but are hereby incorporated herein by reference and not limited to: (i) divesting or holding separate or otherwise taking or committing to take any action that such terms and provisions limits Buyer’s freedom of action with respect to, or its ability to retain, the Millennium Inorganic Companies (or any of the businesses, product lines or assets of the Millennium Inorganic Companies), Buyer’s business or that of any of its Affiliates (or any of the businesses, product lines or assets of it or any of its Affiliates), or (ii) altering or restricting in any way Buyer’s business or commercial practices or the business or commercial practices of any of its Affiliates or the Millennium Inorganic Companies. Buyer shall continue in full force and effect until be entitled to direct any proceedings or negotiations with any Governmental Authority or other Person relating to the Closingforegoing, except as otherwise provided in Section 11.02(d)that it shall afford Sellers a reasonable opportunity to participate therein. Buyer shall not take any action that could reasonably be expected to materially hinder or delay the granting of any Authorization necessary for the consummation of the transactions contemplated hereby.
Appears in 1 contract
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers The Company, the Stockholders and the Buyer Parties Acquiror shall each use commercially all reasonable efforts to (i) take, or to cause to be taken, all actions appropriate action, and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are things necessary, proper or advisable under applicable Legal Requirements Law or otherwise are reasonably to consummate and make effective the transactions contemplated by this Agreement as promptly as practicable, (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations or orders required to obtainbe obtained or made by Acquiror or the Company or any of their respective Subsidiaries in connection with the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated in the case of Sellersthis Agreement, including, without limitation, the Authorizations set forth in Schedule 3.05 Merger, and (iii) make all necessary notifications and filings, and thereafter make any other required submissions, with respect to the Sellers' Disclosure Letter and, in the case of the Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers this Agreement and the Buyer Parties Merger required under applicable Health Benefit Laws and other applicable Laws; provided that, Acquiror and 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 nonfiling party's outside antitrust counsel non-filing party and its advisors prior to filing and, if requested, shall to accept all reasonable additions, deletions or changes suggested in connection therewith. Sellers The Company and the Buyer Parties Acquiror shall furnish or cause to be furnished 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 obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.
(bi) Sellers The Company, the Stockholders and the Buyer Parties Acquiror shall each timely give, and give (or shall cause their respective Subsidiaries, as applicable, Subsidiaries to give, ) any notices to third Persons parties, and shall use, and cause their respective Subsidiaries, as applicable, Subsidiaries to use, commercially reasonable efforts to obtain, obtain any third party consents (A) disclosed in the Company Disclosure Schedule, the Stockholder Disclosure Schedule or the Acquiror Disclosure Schedule, as the case of Sellersmay be, (x) the Third Person Consents set forth in Schedule 3.05 and which Acquiror identifies as being conditions to the Sellers' Disclosure Letter Closing pursuant to Section 8.02(c) or (B) which are otherwise identified by Acquiror or required to prevent a 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) In the event that either party shall fail to obtain any third party consent described in subsection (b)(i) above, such party shall use all reasonable efforts, and (y) if so shall take any such actions reasonably requested in writing by Parentthe other party, to minimize any additional Third Party Consents set forth in Schedule 3.14 adverse effect upon the Company and Acquiror, their respective Subsidiaries, and their respective businesses resulting, or which could reasonably be expected to result after the Sellers' Disclosure LetterEffective Time, and, in from the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 failure to the Buyer Parties' Disclosure Letterobtain such consent.
(c) Sellers Prior to the Effective Time, to the extent reasonably requested by Acquiror the Company and the Buyer Parties shall each give prompt notice Stockholders will, to the other extent permitted by applicable Law, cooperate with Acquiror in approaching, meeting with and communicating with the 100 largest customers of the Health Care Benefits Business (ias measured by the number of covered medical lives) any notice to explain the change in ownership of the Company and to assist in obtaining a renewal with or other communication from any Person alleging transfer to the Company and its Subsidiaries of all contracts, agreements and insurance policies with such customers, and the Company and the Stockholders shall encourage such customers to renew or transfer their contracts, agreements and policies with or to the Company and its Subsidiaries; provided that the consent of such Person is or may no Stockholder shall be required in connection with the transactions contemplated hereby, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby and (iv) the occurrence or nonoccurrence of any event that would be likely to cause any of the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party incur unreasonable costs under this Agreement or to delay or impede the ability of either party to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such notice7.02(c).
(d) Sellers and From the Buyer Parties each agree to cooperate and use commercially reasonable efforts to eliminate date of this Agreement until the antitrust concern(s) Effective Time, the Company shall, promptly following acquiring knowledge thereof, notify Acquiror in writing of any pending or, to the knowledge of the Company, threatened action, proceeding or investigation by any Governmental Authority Entity or Court. If there is no commercially reasonable solution any other person (i) challenging or seeking material damages in connection with the Merger or the conversion of the Company Common Stock into the Merger Consideration pursuant to an administrative the Merger or judicial challenge (ii) seeking to restrain or prohibit the consummation of the transactionsMerger or otherwise limit the right of Acquiror or, unless Sellers and Buyers both agree otherwise, to the Sellers and Buyer Parties will contest any judicial action to block the consummation knowledge of the transactions and attempt Company, its Subsidiaries, to have vacated, lifted, reversed own or overturned operate all or any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation portion of the transactions contemplated by this Agreementbusinesses or assets of the Company or its Subsidiaries.
(e) Sellers and From the Buyer Parties each agree that date of this Agreement until the terms and provisions Effective Time, the Acquiror shall, promptly following acquiring knowledge thereof, notify the Company in writing of any pending or, to the knowledge of Acquiror, threatened action, proceeding or investigation by any Governmental Entity or any other person (i) challenging or seeking material damages in connection with the Merger or the conversion of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until Company Common Stock into the Closing, except as Merger Consideration pursuant to the Merger or (ii) seeking to restrain or prohibit the consummation of the Merger or otherwise provided in Section 11.02(d)limit the right of the Acquiror or its Subsidiaries to own or operate all or any portion of the businesses or assets of the Company or its Subsidiaries.
Appears in 1 contract
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers Prior to the Effective Time, the Company shall use its reasonable best efforts to obtain any Consents of third parties with respect to any Contracts of the Company or any of its 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 of its Subsidiaries as a result of the execution, performance or consummation of the Transactions to the extent reasonably requested in writing by Parent, so as to maintain and preserve the benefits to the Surviving Corporation of such Contract as of and following the consummation of the Transactions; 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.
(b) Subject to Section 4.4(c) and the Buyer Parties shall other terms and conditions of this Agreement, the Company and Parent agree, and Parent and the Company each agree to cause its Subsidiaries to use commercially their reasonable best efforts to take, or to cause to be taken, all actions and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are things necessary, proper or advisable under applicable Legal Requirements or otherwise are reasonably required Law to obtain, in consummate and make effective the case of Sellers, Transactions and to use their respective reasonable best efforts to cause the Authorizations Offer Conditions and the conditions to each Party’s obligation to consummate the Transactions as set forth in Schedule 3.05 Section 5.1 to be satisfied as promptly as practicable (but in no event later than the Sellers' Disclosure Letter andOutside Date), in including using their reasonable best efforts (i) to obtain all Governmental Consents required for the case consummation of the Buyer PartiesOffer and the Merger, (ii) to effect all such necessary registrations and filings with the Governmental Authorities in order to consummate and make effective the Offer, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers Merger and the Buyer other Transactions, (iii) to comply with all requirements under applicable Law which may be imposed on it with respect to this Agreement and the Merger and (iv) to defend any Proceedings, whether judicial or administrative, brought under, pursuant to or relating to any regulatory Law challenging this Agreement or the consummation of the Transactions. The Parties shall cooperate fully with each other to the extent necessary in connection with the making of all such filings, including providing copies of all such documents to the nonfiling party's outside antitrust counsel prior to filing and, if requested, shall accept all reasonable additions, deletions or changes suggested in connection therewith. Sellers and the Buyer Parties shall furnish or cause to be furnished all information required for any application or other filing to be made in connection with obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.
(b) Sellers and the Buyer Parties shall each timely give, and shall cause their respective Subsidiaries, as applicable, to give, any notices to third Persons and shall use, and cause their respective Subsidiaries, as applicable, to use, commercially reasonable efforts to obtain, in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letterforegoing.
(c) Sellers In connection with the efforts referenced in Section 4.4(b) and without limiting the Buyer Parties generality of the undertaking pursuant thereto, Parent and Company shall each give prompt notice to the other of (i) any notice or other communication from any Person alleging promptly make all filings that the consent of such Person is or may be required for the satisfaction of the condition set forth in paragraph (ii) of Exhibit B (Offer Conditions) by each of them in connection with the transactions contemplated herebyconsummation of the Transactions, (ii) which, in any notice or event, shall be made within 10 Business Days following the Agreement Date with respect to the initial filings required under the HSR Act and all other communication from applicable Antitrust Laws. In addition, Parent and the Company agree, and shall each cause each of its Subsidiaries, to cooperate and to use their reasonable best efforts to obtain any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to Consents required for the consummation of the transactions Offer and the Merger as contemplated hereby and (ivby Section 4.4(b) the occurrence above as promptly as possible, including to make all other necessary filings, notifications or nonoccurrence of any event that would be likely to cause any registrations within 15 Business Days of the Closing Conditions of the other party not Agreement Date to be satisfied or of obtain all Governmental Consents, to respond as promptly as practicable to any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such notice.
(d) Sellers and the Buyer Parties each agree to cooperate and use commercially reasonable efforts to eliminate the antitrust concern(s) of requests for information from any Governmental Authority or Court. If there is no commercially reasonable solution Authority, and to an contest and resist any action, including any legislative, administrative or judicial challenge to the consummation of the transactionsaction, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order decree, judgment, injunction or other order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is in effect and (an “Antitrust Order”) that restricts, prevents or prohibits the consummation of the transactions Merger or any other transaction contemplated by this AgreementAgreement 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 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.
(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 and material 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 material 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 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. Except as prohibited or restricted by applicable Law, each Party or its attorneys shall provide the other Party or its attorneys the opportunity to make copies of all correspondence, filings or communications (or memoranda setting forth the substance thereof) between such Party or its representatives, on the one hand, and any Governmental Authority, on the other hand, with respect to this Agreement or the Transactions.
(e) Sellers Each of Parent and the Buyer Parties each agree that Company shall notify and keep the terms and provisions other advised as to (i) any material communication from any Governmental Authority regarding any of the Confidentiality Agreement 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.
(f) If any objections are hereby incorporated herein asserted with respect to the Transactions under any Antitrust Law or if any suit is instituted or threatened by reference any Governmental Authority or any private party challenging any of the Transactions as violating any Antitrust Law or if a filing pursuant to Section 4.4(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 that such terms in any event prior to the Outside Date. Without limiting the generality of the foregoing, Parent shall, and provisions shall continue cause each of its Subsidiaries to, use its and their reasonable best efforts 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 full force any event prior to the Outside Date, including (i) proposing, negotiating, offering to commit and effect until (and if such offer is accepted, committing to and effecting), by consent decree, hold separate order or otherwise, the sale, divestiture, license or disposition of such assets or businesses of Parent or its Subsidiaries and Affiliates, now owned or hereafter sought to be acquired, (ii) terminating or amending any existing relationships and contractual rights and obligations of Parent or its Subsidiaries and Affiliates, or (iii) otherwise offering to take or offering to commit to take any action which it is capable of taking, and if the offer is accepted, taking or committing to take, such actions as are necessary, whether or not such actions limit or modify Parent’s rights of ownership in, or ability to conduct the business of, one or more of its operations, divisions, businesses, product lines, customers or assets, including, after the Closing, the business of the Company, in each case as if it is determined that such action is necessary in order to obtain all Governmental Consents necessary to satisfy the condition set forth in paragraph (ii) of Exhibit B (Offer Conditions) prior to the Outside Date and/or to avoid the entry of, or to effect the dissolution of, any Antitrust Order which would have the effect of preventing or delaying the consummation of the Offer and the Merger and the other Transactions beyond the Outside Date. In connection therewith, Parent shall use its reasonable best efforts to ensure that (x) no requirement for a Consent of the Federal Trade Commission, the Antitrust Division of the Department of Justice, any State Attorney General or other Governmental Authority, (y) no Order or Proceeding, and (z) no other matter relating to any Antitrust Law, would preclude consummation of the Offer and the Merger prior to the Outside Date. Notwithstanding anything to the contrary in this Agreement, in no event will Parent or its Subsidiaries and Affiliates be obligated pursuant to this Agreement to, and the Company will not without the written consent of Parent, sell, divest, license or hold separate any capital stock or other Equity Interest, assets (whether tangible or intangible), rights, products or businesses, or to take or commit to take any action, that would be reasonably expected to (1) materially adversely affect the business of the Surviving Corporation and its Subsidiaries, taken as a whole or (2) to the extent such sale divestiture, license or disposition impacts any Affiliate, materially adversely affect the business of the Affiliate and the Affiliate’s Subsidiaries, taken as a whole. In furtherance of the foregoing, each Party shall keep the other Party informed of all material matters, discussions and activities relating to any of the matters contemplated by this Section 4.4(f).
(g) During the Pre-Closing Period, except as otherwise provided required by this Agreement, Parent and its Affiliates shall not, without the prior written consent of the Company, engage in any action or enter into any transaction or permit any action to be taken or transaction to be entered into by Parent or any of its Affiliates, that would reasonably be expected to have a Parent Material Adverse Effect. Without limiting the generality of the foregoing, none of Parent, its Subsidiaries, or their respective Affiliates shall, and shall not cause any Person to, acquire (whether via merger, consolidation, stock or asset purchase or otherwise), or agree to so acquire, any assets of or any equity in any other Person or any business or division thereof, if that acquisition or agreement would reasonably be expected to (i) materially increase the risk of not obtaining any Governmental Consent required in connection with the Transactions, (ii) materially increase the risk of any Governmental Authority entering an order prohibiting the consummation of the Transactions, or materially increase the risk of not being able to remove any such order on appeal or otherwise, or (iii) prevent or materially delay receipt of any Governmental Consent required in connection with the Transactions.
(h) No action by the Company taken in compliance with Section 11.02(d)4.3 will be considered a violation of this Section 4.4.
Appears in 1 contract
Samples: Merger Agreement (Infoblox Inc)
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers The Company and the Buyer Parties Acquisition Co. shall each use commercially reasonable their best efforts to (i) take, or to cause to be taken, all actions appropriate action, and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are things necessary, proper or advisable under applicable Legal Requirements Law or required to be taken by any Governmental Authority or otherwise are reasonably to consummate and make effective the Merger as promptly as practicable, (ii) obtain from any Governmental Authorities any consents, licenses, permits, waivers, approvals, authorizations or orders required to obtainbe obtained or made by Acquisition Co. or the Company or any of their subsidiaries in connection with the authorization, in execution and delivery of this Agreement and the case of Sellers, the Authorizations set forth in Schedule 3.05 to the Sellers' Disclosure Letter and, in the case consummation of the Buyer PartiesMerger, the Authorizations set forth in Schedule 4.03 and (iii) as promptly as practicable, make all necessary filings, and thereafter make any other required submissions, with respect to the Buyer Parties' Disclosure Letter. Sellers this Agreement and the Buyer Parties Merger required under (A) the Securities Act and the Exchange Act, and any other applicable federal or state securities Laws, and (B) any other applicable Law; provided that Acquisition Co. and 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 nonfiling party's outside antitrust counsel non-filing party and its advisors prior to filing and, if requested, shall to accept all reasonable additions, deletions or changes suggested in connection therewith. Sellers The Company and the Buyer Parties Acquisition Co. shall use reasonable best efforts to furnish or cause to be furnished 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 Transaction Statement) in connection with obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.
(bi) Sellers Each of Acquisition Co. and the Buyer Parties Company shall each timely give, and give (or shall cause their respective Subsidiaries, as applicable, subsidiaries to give, ) any notices to third Persons parties, and shall use, and cause their respective Subsidiaries, as applicable, subsidiaries to use, commercially their reasonable best efforts to obtainobtain any third party consents, (A) necessary to consummate the Merger, (B) disclosed or required to be disclosed in the case of SellersCompany Disclosure Schedule or (C) required to prevent a Material Adverse Effect from occurring prior to or after the Effective Time.
(ii) In the event that Acquisition Co. or the Company shall fail to obtain any third party consent described in subsection (b)(i) above, (x) it shall use its reasonable best efforts, and shall take any such actions reasonably requested by the Third Person Consents set forth in Schedule 3.05 other party, to minimize any adverse effect upon the Sellers' Disclosure Letter Company and (y) if so requested in writing by ParentAcquisition Co., any additional Third Party Consents set forth in Schedule 3.14 their respective subsidiaries, and their respective businesses resulting, or which could reasonably be expected to result after the Sellers' Disclosure LetterEffective Time, and, in from the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 failure to the Buyer Parties' Disclosure Letterobtain such consent.
(c) Sellers and From the Buyer Parties date of this Agreement until the Effective Time, each party shall each give prompt notice promptly notify the other party of any pending or, to the actual knowledge of the executive officers of the first party, threatened action, proceeding or investigation by any Governmental Authority or any other of person (i) any notice challenging or other communication from any Person alleging that the consent of such Person is or may be required seeking material damages in connection with the transactions contemplated hereby, Merger or the conversion of the Company Common Stock into the Merger Consideration pursuant to the Merger or (ii) any notice seeking to restrain or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to prohibit the consummation of the transactions contemplated hereby and (iv) the occurrence or nonoccurrence of any event that would be likely to cause any of the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement Merger or otherwise limit the right of Acquisition Co. to own or affect the remedies available hereunder to the party receiving such notice.
(d) Sellers and the Buyer Parties each agree to cooperate and use commercially reasonable efforts to eliminate the antitrust concern(s) of operate all or any Governmental Authority or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation portion of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation businesses or assets of the transactions and attempt to have vacated, lifted, reversed Company or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this AgreementCompany Subsidiaries.
(e) Sellers and the Buyer Parties each agree that the terms and provisions of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d).
Appears in 1 contract
Samples: Merger Agreement (Enstar Inc)
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 Buyer, on the one hand, and Seller, on the other hand, shall apply to the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers and the Buyer Parties shall each use all commercially reasonable efforts to to: (i) take, or to cause to be taken, all actions appropriate action, and to do, or to cause to be done, all thingsthings necessary, proper, or advisable under applicable Law to consummate and make effective the transactions contemplated by this Agreement; (ii) obtain all consents, licenses, Permits, waivers, approvals, authorizations, or Orders required under Law (including all foreign and domestic (federal, state, and local) governmental and regulatory rulings and approvals and parties to Contracts) in connection with the making authorization, execution, and delivery of this Agreement and the consummation of the transactions contemplated hereby; and (iii) make all necessary filings filings, and thereafter make any other required submissions, that are necessary, proper or advisable with respect to this Agreement and the transactions contemplated hereby required under applicable Legal Requirements or otherwise are reasonably required to obtainLaw; provided, in the case of Sellershowever, the Authorizations set forth in Schedule 3.05 to the Sellers' Disclosure Letter and, in the case of the that Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers and the Buyer Parties Seller shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the nonfiling party's outside antitrust counsel non-filing party and its advisors prior to filing and, if requested, shall to accept all reasonable additions, deletions deletions, or changes suggested in connection therewith. Sellers Buyer, on the one hand, and Seller, on the Buyer Parties other hand, shall furnish or cause to be furnished 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 obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.
(b) Sellers . Prior to the Closing Date, Buyer and the Buyer Parties Seller shall each timely give, and shall cause their respective Subsidiaries, as applicable, to give, any notices to third Persons and shall use, and cause their respective Subsidiaries, as applicable, to use, use commercially reasonable efforts and cooperate to obtain, in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter.
(c) Sellers and the Buyer Parties shall each give prompt notice to the other of (i) respond at the earliest practicable date to any notice requests for additional information made by any Governmental Authority with respect to all filings made under applicable Laws, (ii) take all actions reasonably necessary to cause the waiting periods for all filings made under applicable Laws to terminate or other communication from expire as soon as practical and (iii) take or cause to be taken all actions reasonably necessary to obtain any Person alleging that appropriate approvals of any Governmental Authority, all to the consent end of such Person is or may be required in connection with expediting consummation of the transactions contemplated hereby, (ii) . Buyer and Seller each agree to promptly inform each other of any notice or other material communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) regarding any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby and (iv) the occurrence or nonoccurrence of shall permit each other to review in advance any event proposed communication to any Governmental Authority, subject to applicable Law, and provided that would neither Party shall be likely required to cause any of the Closing Conditions of provide the other party not with any documents or other materials related to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such notice.
(d) Sellers and the Buyer Parties each agree to cooperate and use commercially reasonable efforts to eliminate the antitrust concern(s) of any Governmental Authority or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation Party's valuation of the transactions contemplated by this Agreement.
(e) Sellers and the Buyer Parties each agree that the terms and provisions of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d).
Appears in 1 contract
Appropriate Action; Consents; Filings. The covenants (a) Buyer and Sellers, as applicable, shall (i) (a) promptly (and in this Section 7.01 shall apply to no event more than thirty (30) days, or if Buyer or any of its Affiliates is already licensed by the parties hereto from and Gaming Authorities in the State of Nevada, fifteen (15) Business Days, after the date of this Agreement until the Closing:
(aAgreement) Sellers and the Buyer Parties shall each use commercially reasonable efforts to take, or to cause to be taken, make all actions and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any notifications with the Gaming Authorities and (b) promptly make all filings and notifications to the Xxxxx County Board (including in respect of the Liquor Licenses) within the timeframe mandated by the Xxxxx County Board and (c) promptly make all other required submissions, filings and notifications to all other Governmental Entities that are may be or may become reasonably necessary, proper or advisable under this Agreement and applicable Legal Requirements or otherwise are reasonably required to obtain, in the case of Sellers, the Authorizations set forth in Schedule 3.05 to the Sellers' Disclosure Letter and, in the case of the Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers and the Buyer Parties shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the nonfiling party's outside antitrust counsel prior to filing and, if requested, shall accept all reasonable additions, deletions or changes suggested in connection therewith. Sellers and the Buyer Parties shall furnish or cause to be furnished all information required for any application or other filing to be made in connection with obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not Laws to consummate and make effective the transactions contemplated by this Agreement.
Agreement in the most expeditious manner possible and (bii) Sellers and the Buyer Parties shall each timely give, and shall cause make their respective Subsidiariesfilings pursuant to the HSR Act with respect to the transactions contemplated by this Agreement within ten (10) Business Days of the date hereof, as applicable, unless mutually agreed otherwise by Buyer and Sellers. Buyer and Sellers shall promptly provide to give, any notices to third Persons and shall use, and cause each other evidence of their respective Subsidiaries, as applicable, to use, commercially reasonable efforts to obtain, in the case filings or a copy of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter.
(c) Sellers and the Buyer Parties shall each 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 their respective applications in connection with the transactions contemplated hereby. Buyer shall have responsibility for any filing fees associated with the Gaming Approvals and any filing fees associated with any filings made pursuant to the HSR Act.
(b) Buyer and Sellers hereby agree to (i) respond as promptly as practicable and advisable to any inquiries or requests for information and documentary material received from any Governmental Entity in connection with any Gaming Approvals or any antitrust, competition or financial regulatory matters related to the Agreement and the transactions contemplated by this Agreement and to otherwise take such reasonable actions so as to promptly obtain all actions or non-actions, consents, Permits, waivers, approvals, authorizations and orders from Governmental Entities necessary or advisable in connection with the consummation of the transactions contemplated hereby, including the Gaming Approvals (provided, however, that such reasonable actions shall not require Buyer or Sellers to take any action that would not be required pursuant to Section 6.03(c)), (ii) promptly notify the other party of any notice material communication between that party and any Governmental Entity in respect of any filings, investigation, inquiry or other proceeding relating to the transactions and of any material communication from received or given in connection with any proceeding by a private party relating to the transactions, (iii) subject to applicable Law, discuss with and permit the other party (or its counsel) to review in advance, and consider in good faith the other party’s reasonable comments in connection with, any proposed material filing or communication to any Governmental Authority Entity or, in connection with any proceeding by a private party to any other person, relating to any filing, investigation, inquiry or other proceeding in connection with the transactions contemplated herebyby this Agreement, (iiiiv) not participate or agree to participate in any Actions commenced substantive meeting, telephone call or threatened discussion with any Governmental Entity in writing againstrespect of any filings, investigation or inquiry relating to any filing, investigation, inquiry, or involving or otherwise affecting the Seller Companies other proceeding in connection with this Agreement or the Buyer Partiestransactions contemplated by this Agreement 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, telephone call or discussion, and (v) subject to applicable Law, furnish the other party (or its counsel) promptly with copies of all correspondence, filings and communications relating to any filing, investigation, inquiry or other proceeding pursuant to any Antitrust Law between the party, its Affiliates or Representatives on the one hand, and any Governmental Entity or members of their respective staffs on the other hand, with respect to this Agreement or the transactions contemplated hereby; provided, that relate the foregoing materials may be redacted to remove references concerning the consummation valuation of the transactions contemplated hereby by this Agreement. Buyer shall have the right to direct and (iv) determine the occurrence strategy for all matters with any Governmental Entity regarding the transactions contemplated by this Agreement consistent with its obligations hereunder, provided, however, that Buyer shall consult with and consider in good faith the views of Sellers and their counsel in connection therewith; and provided, that Buyer shall not extend any waiting period or nonoccurrence of agree to refile under the HSR Act or otherwise withdraw any event that would be likely to cause any of the Closing Conditions of the other party not application with a Governmental Entity required to be satisfied made hereunder under the Gaming Laws or of any other change that is reasonably likely applicable Law, or enter into any agreement with any Governmental Entity to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party to not consummate the transactions contemplated by this Agreement without the Sellers’ prior written consent, which consent shall not be unreasonably withheld, delayed or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such noticeconditioned.
(dc) Without limiting the foregoing, Buyer and Sellers and the Buyer Parties each agree to cooperate and use commercially reasonable best efforts to take promptly any and all steps necessary to avoid or eliminate each and every impediment under any applicable Law that may be asserted by any antitrust, competition, investment, financial regulatory or trade regulation Governmental Entity or any other party so as to enable the antitrust concern(sparties to close the transactions contemplated by this Agreement as promptly as practicable and in any event prior to the Outside Date, including committing to or effecting, the actions specified in Section 6.03(c) of the Disclosure Schedules, as is necessary or advisable in order to avoid the entry of, or to effect the dissolution of, any decree, order, judgment, injunction, temporary restraining order or other order in any suit or proceeding or to avoid or eliminate any impediment under any applicable Law that be asserted by any antitrust, competition, investment, financial regulatory or trade regulation Governmental Authority Entity, that would otherwise have the effect of delaying or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block preventing the consummation of the transactions contemplated by this Agreement (it being understood and attempt agreed by Buyer that no such action taken by Buyer shall entitle Buyer to any adjustment or reduction in the Purchase Price or shall otherwise affect any other obligation of Buyer hereunder). Notwithstanding the foregoing or any other provision of this Agreement, other than with respect to the actions specified in Section 6.03(c) of the Disclosure Schedule, Buyer and its Affiliates shall not be required to (and Sellers and their Affiliates shall not, without the prior written consent of Buyer), commit to or effect, by consent decree, hold separate orders, or otherwise, (i) the license, sale, divestiture or disposition of any assets, categories of assets, properties or businesses of Buyer or its Affiliates, or of the assets, properties or businesses to be acquired by Buyer pursuant to this Agreement, and the entrance into such other arrangements relating to any such license, sale, divestiture or disposition, or making such other commitments, (ii) the termination, amendment or assignment of any existing relationships or contractual rights relating to the foregoing assets, properties or businesses, (iii) the change or modification of any course of conduct regarding future operations of the foregoing assets, properties or businesses, or (iv) the taking of actions that would otherwise limit the freedom of action of Buyer or its Affiliates with respect to, or their ability to retain, any of the foregoing assets, properties or businesses or their rights or interests therein. In addition, without limiting the generality of the foregoing, Buyer and Sellers agree to use their reasonable best efforts to take all required actions to defend through litigation on the merits any claim asserted in court by any party in order to avoid entry of, or to have vacatedvacated or terminated, liftedany decree, reversed order or overturned any Order judgment (whether temporary, preliminary or permanent) that would prevent the Closing of the transactions contemplated by this Agreement (it being understood and agreed by Buyer that no such action taken by Buyer shall entitle Buyer to any adjustment or reduction in the Purchase Price or shall otherwise affect any other obligation of Buyer hereunder); provided, that such litigation in no way limits Buyer’s other obligations or rights under this Section 6.03(c).
(d) Neither Buyer nor Sellers shall take or cause to be taken any action that such party is aware or reasonably should be aware would have the effect of materially delaying, impairing or impeding the receipt of the Gaming Approvals or any such other approvals. Without limiting the foregoing, neither Buyer nor Sellers shall, without first consulting in good faith with the other party, take any action or enter into any previously unannounced transaction or agreement to effect any transaction (including any merger or acquisition) that might reasonably be expected to make or makes it materially more difficult, or materially increases the time required, to (i) obtain clearance or the expiration or termination of the waiting period under the HSR Act or to obtain the Gaming Approvals or any requisite approvals in respect of the Liquor Licenses or any other Law applicable to the transactions contemplated by this Agreement, (ii) avoid the entry of any Court injunction, temporary restraining order or other order that would materially delay or prevent the consummation of the transactions contemplated by this Agreement or (iii) obtain all authorizations, consents, orders and approvals of Governmental Authority that is in effect and that restricts, prevents or prohibits Entities necessary for the consummation of the transactions contemplated by this Agreement.
(e) Sellers and Each party hereto shall use its respective commercially reasonable efforts to obtain any third party (other than Governmental Entities) consents necessary or advisable in connection with the Buyer Parties each agree that transactions contemplated by this Agreement. Notwithstanding anything to the terms and provisions contrary in this Agreement, in connection with obtaining any approval or consent from any person (other than a Governmental Entity) with respect to any transaction contemplated by this Agreement, none of the Confidentiality Agreement are hereby incorporated herein Buyer, the Sellers, the Company or any Company Subsidiary 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 due to such person.
(f) In connection with any New Propco Debt Financing, Buyer shall reasonably cooperate with the New Propco in connection therewith, including, without limitation, delivering such information regarding Buyer as contemplated by reference and that Section 23.2(b) of the New Operating Lease (as if such terms and provisions shall continue New Operating Lease was in full force and effect until prior to the Closing).
(g) At least thirty (30) days prior to the Closing, except as otherwise provided in Section 11.02(d)the Sellers shall cause Opco to prepare and deliver a notice to each of (i) a licensed alcoholic beverage wholesaler who currently sells liquor to the Company Group, and (ii) a licensed alcoholic beverage wholesaler who has sold liquor to the Company Group within the immediately preceding twelve (12) months. Such notice shall contain the information required by Nevada Revised Statutes (“NRS”) 369.4867.
Appears in 1 contract
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers The Seller and the Buyer Parties shall each use commercially reasonable efforts to (i) take, or to cause to be taken, all actions appropriate action, and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are things necessary, proper or advisable under applicable Legal Requirements Law or otherwise are reasonably to consummate and make effective the Acquisition as promptly as practicable; (ii) obtain in a timely manner from any Governmental Authorities any consents, licenses, permits, waivers, approvals, authorizations or orders required to obtainbe obtained or made by Buyer or the Seller or any of their subsidiaries in connection with the authorization, in execution and delivery of this Agreement and the case of Sellers, the Authorizations set forth in Schedule 3.05 to the Sellers' Disclosure Letter and, in the case consummation of the Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers Acquisition and the other transactions contemplated hereby; and (iii) as promptly as practicable make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement and the Acquisition required under any applicable Law; provided that Buyer Parties and 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 nonfiling party's outside antitrust counsel non-filing party and its advisors prior to filing and, if requested, shall to accept all reasonable additions, deletions or changes suggested in connection therewith. Sellers The Seller and the Buyer Parties shall furnish or cause to be furnished 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 obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.
(bi) Sellers Each of Buyer and the Buyer Parties Seller shall each timely give, and give (or shall cause their its respective Subsidiaries, as applicable, subsidiaries to give, ) any notices to third Persons parties, and shall use, and cause their its respective Subsidiaries, as applicable, subsidiaries to use, commercially their reasonable best efforts to obtainobtain any third party consents, (A) necessary, proper or advisable to consummate the transactions contemplated in this Agreement, (B) disclosed or required to be disclosed in the case of SellersDisclosure Schedule or (C) required to prevent a Material Adverse Effect from occurring prior to or after the Closing Date.
(ii) In the event that either Buyer or the Seller shall fail to obtain any third party consent described in subsection (b)(i) above, (x) it shall use its reasonable best efforts, and shall take any such actions reasonably requested by the Third Person Consents set forth in Schedule 3.05 other party, to minimize any adverse effect upon the Sellers' Disclosure Letter Seller and (y) if so requested in writing by ParentBuyer, any additional Third Party Consents set forth in Schedule 3.14 their respective subsidiaries, and their respective businesses resulting, or which could reasonably be expected to result after the Sellers' Disclosure LetterClosing Date, and, in from the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 failure to the Buyer Parties' Disclosure Letterobtain such consent.
(c) Sellers and Each party shall promptly notify the Buyer Parties shall each give prompt notice 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 of person (i) any notice challenging or other communication from any Person alleging that the consent of such Person is or may be required seeking, material damages in connection with the transactions contemplated hereby, Acquisition; or (ii) any notice seeking to restrain or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to prohibit the consummation of the transactions contemplated hereby and (iv) Acquisition or otherwise limit the occurrence right of Buyer or, to the knowledge of such first party, Buyer's subsidiaries to own or nonoccurrence of operate all or any event that would be likely to cause any portion of the Closing Conditions businesses or Acquired Assets of the other party not to be satisfied Seller or of any other change that its subsidiaries, which in either case is reasonably likely to cause have, individually or in the aggregate, a breach of Material Adverse Effect prior to or after the covenants of such party under this Agreement or to delay or impede the ability of either party to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such noticeClosing Date.
(d) Sellers and the Buyer Parties each agree to cooperate and use commercially reasonable efforts to eliminate the antitrust concern(s) of any Governmental Authority or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this Agreement.
(e) Sellers and the Buyer Parties each agree that the terms and provisions of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d).
Appears in 1 contract
Samples: Asset Purchase Agreement (Medical Technology Systems Inc /De/)
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to the parties hereto from and after the date of this Agreement until the Closing:
(a) Upon the terms and subject to the conditions set forth herein, from the date hereof until the Closing Date, the Sellers and the Buyer Parties Buyers shall each use commercially their respective reasonable best efforts to take, or to cause to be taken, all actions appropriate action, and to do, or to cause to be done, and to assist and cooperate with the other Parties in doing all things, including the making of all necessary filings and thereafter any other required submissions, that are things necessary, proper or advisable under applicable Legal Requirements Law or otherwise are reasonably to consummate and make effective the transactions contemplated hereby as promptly as practicable, including (i) executing and delivering any additional instruments necessary, proper or advisable to consummate the transactions contemplated hereby, and to carry out fully the purposes of this Agreement, (ii) making all necessary Filings, and thereafter making any other required submissions, with respect to the transactions contemplated hereby required under any applicable Law and (iii) using reasonable best efforts to obtain all Consents of any Governmental Entity or third party necessary for the consummation of the transactions contemplated hereby, including providing Sellers within five (5) Business Days of executing this Agreement information that Seller will include in the application to the PRC Authorities to approve the equity transfer of Company to Buyers (including but not limited to the list of Buyer’s post Closing officers and directors of the Company); and (iv) Sellers shall cooperate with Buyers regarding the preparation of the Assets in Sellers’ Glenrothes, Scotland facility to be shipped within 14 days after the Closing to Buyers’ facility and LUK shall provide Buyers access to the Glenrothes, Scotland facility up through the date of shipment for the limited purpose of such preparation of Assets and shipment; provided, however, that the Sellers shall not be required to obtain, in commence any litigation or offer or grant any accommodation (financial or otherwise) to any third party. In addition to the case of Sellersforegoing, the Authorizations set forth Buyers agree to provide such security and assurances as to financial capability, resources and creditworthiness as may be reasonably requested by any Governmental Entity or other third party whose consent or approval is sought in Schedule 3.05 to connection with the Sellers' Disclosure Letter and, in the case of the Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Lettertransactions contemplated hereby. Sellers The Buyers and the Buyer Parties Sellers shall cooperate with each other in connection with the making of all such filingsany Filings in accordance with this Section 5.1(a), including providing copies of all such documents to the nonfiling party's outside antitrust counsel non-filing Party and its advisors prior to filing and, if requested, shall accept and discussing all reasonable additions, deletions or changes suggested in connection therewith. All fees payable to any Governmental Entity in connection with the Filings pursuant to this Section 5.1(a) shall be paid by the Buyers. The Sellers and the Buyer Parties Buyers shall furnish or cause to be furnished each other all information required for any application or other filing Filing to be made pursuant to the rules and regulations of any applicable Law in connection with obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreementhereby.
(b) From the date hereof until the Closing Date, the Sellers and the Buyer Parties Buyers shall promptly notify each timely giveother in writing of any pending or, and shall cause their respective Subsidiariesto the Knowledge of the Sellers or the Buyers, as applicable, to givethreatened action, proceeding or investigation by any notices to third Persons and shall use, and cause their respective Subsidiaries, as applicable, to use, commercially reasonable efforts to obtain, in the case of Sellers, (x) the Third Governmental Entity or any other Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter.
(c) Sellers and the Buyer Parties shall each give prompt notice to the other of (i) any notice challenging or other communication from any Person alleging that the consent of such Person is or may be required seeking damages in connection with the transactions contemplated hereby, or (ii) any notice seeking to restrain or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to prohibit the consummation of the transactions contemplated hereby and (iv) the occurrence or nonoccurrence of any event that would be likely to cause any of the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement or otherwise limit the right of the Buyers to own or affect operate all or any portion of the remedies available hereunder to the party receiving such notice.
(d) Business. The Sellers and the Buyer Parties Buyers shall cooperate with each agree to cooperate and use commercially reasonable efforts to eliminate the antitrust concern(s) of other in defending any Governmental Authority such action, proceeding or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactionsinvestigation, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt including seeking to have vacated, lifted, reversed any stay or overturned temporary restraining order entered by any Order (whether temporary, preliminary court or permanent) of any Court other Governmental Entity vacated or Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this Agreementreversed.
(e) Sellers and the Buyer Parties each agree that the terms and provisions of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d).
Appears in 1 contract
Samples: Share and Asset Purchase and Sale Agreement (Simclar Inc)
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers The Company, Parent and the Buyer Parties Parent Sub shall each use commercially reasonable its best efforts to to: (i) take, or to cause to be taken, all actions appropriate action, and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are things necessary, proper or advisable under applicable Legal Requirements Law or otherwise are reasonably to consummate and make effective the THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. transactions contemplated by this Agreement; (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations or orders required to obtainbe obtained or made by Parent, Parent Sub or the Company in connection with the case authorization, execution and delivery of Sellersthis Agreement and the consummation of the transactions contemplated hereby, including, without limitation, the Authorizations set forth in Schedule 3.05 Merger; (iii) make all necessary filings, and thereafter make any other required submissions, with respect to the Sellers' Disclosure Letter and, in the case of the Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers this Agreement and the Buyer Parties Merger required under (A) Delaware Law and New Jersey law (including holding a stockholders meeting and/or sending notice of merger and appraisal rights) and the federal securities laws and the rules and regulations thereunder, if any, and any other applicable federal or state securities laws, and (B) any other applicable Law; provided that Parent, Parent Sub and 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 nonfiling party's outside antitrust counsel non-filing party and its advisors prior to filing and, if requested, shall accept accepting all reasonable additions, deletions or changes suggested in connection therewith. Sellers The Company, Parent and the Buyer Parties Parent Sub shall furnish or cause to be furnished 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 obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.
(b) Sellers (i) Each of the Company, Parent and the Buyer Parties Parent Sub shall each timely give, and shall cause their respective Subsidiaries, as applicable, to give, give any notices to third Persons and shall useparties, and cause their respective Subsidiaries, as applicable, to use, commercially reasonable use its best efforts to obtainobtain any third party consents (A) necessary, proper or advisable to consummate the transactions contemplated in this Agreement, (B) disclosed or required to be disclosed in the case of Sellersschedules contained herein, (xC) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parentotherwise required under any Contracts, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letterlicenses, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter.
(c) Sellers and the Buyer Parties shall each give prompt notice to the other of (i) any notice leases or other communication from any Person alleging that the consent of such Person is or may be required agreements in connection with the transactions contemplated hereby, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby and herein or (ivD) required to prevent a Company Material Adverse Effect from occurring prior to or after the occurrence Effective Time or nonoccurrence of any event that would be likely a Parent Material Adverse Effect from occurring prior to cause any of or after the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such noticeEffective Time.
(d) Sellers and the Buyer Parties each agree to cooperate and use commercially reasonable efforts to eliminate the antitrust concern(s) of any Governmental Authority or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this Agreement.
(e) Sellers and the Buyer Parties each agree that the terms and provisions of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d).
Appears in 1 contract
Samples: Merger Agreement (Daou Systems Inc)
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to During the parties hereto from and after the date of this Agreement until the ClosingInterim Period:
(a) Sellers Subject to Seller's and Buyer's additional Obligations in clauses (b), (c) and (d) of this Section 6.3 and the other terms and conditions of this Agreement, Seller and Buyer Parties shall each use commercially reasonable efforts Commercially Reasonable Efforts to (i) take, or to cause to be taken, all actions actions, and to do, or to cause to be done, all thingsthings that, including the making of all necessary filings and thereafter any other required submissionsin either case, that are necessary, proper or advisable under applicable Legal Requirements Law or otherwise are reasonably to consummate and make effective the transactions contemplated by this Agreement and the Related Agreements; provided, however, that the foregoing shall not require or cause any Party to waive any right it may have under other provisions of this Agreement and (ii) obtain from the relevant Governmental Authorities all Authorizations required to obtainbe obtained at or prior to the Closing by Buyer, Seller, the Company or the Acquired Subsidiary in connection with the authorization, execution, delivery and performance of this Agreement and the Related Agreements and the consummation of the transactions contemplated hereby and thereby.
(b) As promptly as practicable, Seller and Buyer shall make all necessary filings, including filings under the HSR Act and other filings and registrations referred to in the case of SellersDisclosure Schedules, and thereafter make any other required submissions, with respect to this Agreement and the Authorizations set forth in Schedule 3.05 transactions contemplated hereby required under any Law at or prior to the Sellers' Disclosure Letter andClosing. Buyer and Seller shall bear the costs and expenses of their respective filings; provided, that Buyer shall pay the filing fee in the case of the connection with any such filings. Seller and Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers and the Buyer Parties shall reasonably cooperate with each other in connection with the making of all such filings, including providing copies of all such documents filings and subsequent submissions to any Governmental Authority. Seller and Buyer shall each use Commercially Reasonable Efforts to furnish to the nonfiling party's outside antitrust counsel prior to filing and, if requested, shall accept all other Party such necessary information and reasonable additions, deletions or changes suggested in connection therewith. Sellers and assistance as the Buyer Parties shall furnish or cause to be furnished all information required for any application or other filing to be made Party may reasonably request in connection with obtaining the foregoing and will keep the other Party reasonably informed with respect to any such Authorizationsconsent, authorization, order or approval sought from, or exemption, review, investigation or inquiry conducted by, any Governmental Authority in connection with this Agreement and the transactions contemplated hereby. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to Each Party shall (i) make their initial HSR Act filings have the right to review in respect of this transaction on or prior advance, and to the 21st day after the date hereof and (ii) extent practicable consult on, any written materials submitted to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate in connection with the transactions contemplated by this Agreement.
(b) Sellers and the Buyer Parties shall each timely give, and shall cause their respective Subsidiaries(ii) consult with and consider in good faith the views of the other Party, as applicableprior to making any submission, to give, providing any notices to third Persons and shall use, and cause their respective Subsidiaries, as applicable, to use, commercially reasonable efforts to obtain, in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 material correspondence or entering into any agreement with any Governmental Authority with respect to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Lettertransactions contemplated hereby.
(c) Sellers Buyer and the Buyer Parties Seller shall each give prompt notice to the other of the receipt of and if in writing, furnish the others with copies of (ior, in the case of oral communications, advise the others of the contents of) any notice or other communication from (i) any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated hereby, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced Governmental Authority or threatened in writing other Person regarding the initiation or threat of initiation of any Claims or Proceedings against, relating to to, or involving or otherwise affecting the Company, the Acquired Subsidiary, Buyer or Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby hereby, and (iv) any Person regarding the occurrence or nonoccurrence of any event that the occurrence or nonoccurrence of which would be reasonably likely to (A) cause any of condition to the Closing Conditions Obligations of the other party Party to consummate the transactions contemplated hereby not to be satisfied or of any other change that is reasonably likely to satisfied, (B) cause a breach of the representations, warranties or covenants of such party Party under this Agreement Agreement, or to (C) delay or impede the ability of either party Buyer or Seller, respectively, to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations Obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such notice.
(d) Sellers Buyer and the Buyer Parties Seller each agree to cooperate and to use commercially reasonable efforts Commercially Reasonable Efforts to eliminate the antitrust concern(s) of contest and to resist any Governmental Authority or Court. If there is no commercially reasonable solution to an action, including legislative, administrative or judicial challenge to the consummation of the transactionsaction, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court court or other Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this Agreement or the Related Agreements, including the pursuit of all available avenues of administrative and judicial appeal and all available legislative action. Notwithstanding the foregoing, nothing in this Section 6.3 shall require, or be construed to require any Party or its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of the Parties or any of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, could reasonably be expected to result in a Material Adverse Effect or materially and adversely impact the economic or business benefits to the Parties of the transactions contemplated by this Agreement; or (iii) any material modification or waiver of the terms and conditions of this Agreement. Neither Buyer nor Seller nor any of their respective Affiliates shall purchase or otherwise acquire or agree to purchase or otherwise acquire, whether directly or indirectly, any assets or interest in any assets or Persons that would reasonable be expected to materially and adversely affect the filings made pursuant to Section 6.3(b).
(e) Sellers Buyer and Seller shall each timely give or cause to be given all notices to third Persons and use Commercially Reasonable Efforts to obtain all Third Person Consents (i) set forth in Section 3.3(a) and Section 5.3(a) of the Disclosure Schedules, (ii) required under any Material Company Contract or Seller Contract in connection with the consummation of the transactions contemplated hereby or (iii) otherwise required to prevent a Material Adverse Effect from occurring prior to or after the Closing.
(f) Buyer shall use Commercially Reasonable Efforts to secure the release of Seller and its Affiliates from liability for any post-Closing Obligations of the Companies under any Authorizations or Material Contracts assigned or transferred from Seller or its Affiliates to the Companies, and to secure the release of Seller and its Affiliates from any guarantees of the Companies" post-Closing Obligations under any Authorizations or Material Contracts to which the Companies remain a party after Closing. Buyer's efforts in this regard shall include, if necessary, causing the Buyer Guarantor to guarantee the Obligations of the Company under the affected Authorizations or Material Contracts. Buyer acknowledges that Seller and its Affiliates shall have the right to cancel or revoke all guarantees, bonds, letters of credit and similar undertakings provided by them or on their behalf to secure any post-Closing Obligations of the Companies. The provisions of this paragraph shall survive the Closing.
(g) Notwithstanding Section 6.3(f), prior to the Closing Buyer shall deliver to the applicable beneficiary or counterparty replacement or substitute guaranties, letters of credit, bonds, security deposits, and other surety obligations and evidence of financial capacity, in each case acceptable to Buyer and the Buyer Parties each agree that the terms relevant beneficiary or counterparty, in substitution and provisions replacement of those credit support arrangements set forth in Section 6.3(g) of the Confidentiality Agreement are hereby incorporated herein by reference Disclosure Schedules (the "Credit Support Arrangements"), in form and that such terms substance acceptable to Seller, and provisions shall continue in full force cause the release as of the Closing of Seller and effect until its Affiliates from all Obligations relating to the Closing, except as otherwise provided in Section 11.02(d)Credit Support Arrangements.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Par Petroleum Corp/Co)
Appropriate Action; Consents; Filings. The covenants (a) Subject to the terms and conditions of this Agreement (including the limitations set forth in this Section 7.01 shall apply to 6.5), the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers and the Buyer Parties shall each will use commercially their respective reasonable best efforts to take, or to cause to be taken, all actions consummate and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are necessary, proper or advisable under applicable Legal Requirements or otherwise are reasonably required to obtain, in the case of Sellers, the Authorizations set forth in Schedule 3.05 to the Sellers' Disclosure Letter and, in the case of the Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers and the Buyer Parties shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the nonfiling party's outside antitrust counsel prior to filing and, if requested, shall accept all reasonable additions, deletions or changes suggested in connection therewith. Sellers and the Buyer Parties shall furnish or cause to be furnished all information required for any application or other filing to be made in connection with obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.
(b) Sellers and the Buyer Parties shall each timely give, and shall cause their respective Subsidiaries, as applicable, to give, any notices to third Persons and shall use, and cause their respective Subsidiaries, as applicable, to use, commercially reasonable efforts to obtain, in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter.
(c) Sellers and the Buyer Parties shall each 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 transactions contemplated hereby, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby and (iv) the occurrence or nonoccurrence of any event that would be likely to cause any of the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party to consummate effective the transactions contemplated by this Agreement or and to fulfill their respective obligations cause the conditions to the Merger set forth herein. No delivery of any notice pursuant in Article VII to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such notice.
(d) Sellers and the Buyer Parties each agree to cooperate and use commercially be satisfied, including using reasonable best efforts to eliminate accomplish the antitrust concern(sfollowing: (i) the obtaining of any all necessary actions or non-actions, Consents and approvals from Governmental Authority or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is Authorities necessary in effect and that restricts, prevents or prohibits connection with the consummation of the transactions contemplated by this Agreement, including the Merger, and the making of all necessary notices, 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 necessary in connection with the consummation of the transactions contemplated by this Agreement, including the Merger; (ii) the obtaining of all other necessary Consents, approvals or waivers from or the making of notices to Third Parties; and (iii) responding as promptly as reasonably practicable to any inquiries from, and supplying as promptly as reasonably practicable any additional information or documentation that may be requested by, a Governmental Authority in connection with the transactions contemplated by this Agreement. Each of the parties hereto shall promptly (and in no event later than thirty five (35) Business Days following the date that this Agreement is executed) make its respective filings under the HSR Act, and any other applications and filings required under any Antitrust Laws in the jurisdictions listed in Section 6.3(a) of the Company Disclosure Letter with respect to the transactions contemplated by this Agreement, including the Merger. Notwithstanding anything in this Agreement to the contrary, obtaining any Consents, approvals or waivers of or making any notice to any Third Party pursuant to Section 6.3(a)(ii) above or otherwise shall not be considered a condition to the obligations of Parent and Acquisition Sub to consummate the Merger.
(b) Parent and Acquisition Sub agree to use reasonable best efforts (and to cause their Subsidiaries to use reasonable best efforts) to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case, with competent jurisdiction, so as to enable the parties to consummate the transactions contemplated by this Agreement, including the Merger, prior to the Termination Date, including committing to or effecting, by consent decree, hold separate orders, trust, or otherwise, the sale or other disposition of such assets or businesses of Parent, the Company or their respective Subsidiaries as are required to be divested 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 materially delaying the consummation of the Merger and the other transactions contemplated by this Agreement as promptly as practicable prior to the Termination Date (collectively, a “Remedy”); provided that Parent and Acquisition Sub shall not be required or obligated (and nothing contained in this Section 6.3 or this Agreement shall require or obligate Parent and Acquisition Sub) to take or agree to any Remedy or any other action that would result in or account for, either individually or in the aggregate, the one year loss of net worldwide sales revenues (as measured by 2019 sales revenue) in excess of ninety five million dollars ($95,000,000) to Parent, the Company and their respective Subsidiaries (taken as a whole, after giving effect to the Merger); provided, further, that any such action contemplated by this Section 6.3(b) is conditioned upon the consummation of the Merger. Without limiting the foregoing, in no event shall the Company or any of its respective Subsidiaries propose, negotiate, effect or agree to any action contemplated by this Section 6.3(b) without the prior written consent of Parent.
(c) Each of the parties hereto will, subject to applicable Law, 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 or substantive communications and will cooperate in responding to any inquiry from a Governmental Authority, including (i) promptly informing the other party of such inquiry, (ii) consulting in advance before making any presentations or submissions to a Governmental Authority, (iii) giving the other party the opportunity to attend and participate in any meetings, discussions or substantive telephone calls with any Governmental Authority, to the extent not prohibited by such Governmental Authority, and (iv) supplying each other with copies of all material correspondence, filings or communications between any party and any Governmental Authority with respect to this Agreement. Parent and the Company shall (to the extent permitted under applicable Law) consult with the other party in advance of any meeting, discussion or teleconference with any Governmental Entity or, in connection with any proceeding by a private party, with any other person, and, to the extent not prohibited by the Governmental Entity or other person, give the other party the opportunity to attend and participate in such meetings, discussions and teleconferences. The parties shall discuss in advance the strategy and timing for obtaining any clearances required or advisable under any applicable Law in connection with this Agreement or the transactions contemplated by this Agreement; provided, however, that Parent shall take the lead in all meetings and communications with any Governmental Authority in connection with obtaining such clearances required under any Antitrust Law. Any materials exchanged by the parties pursuant to this Section 6.3 may be redacted or withheld as necessary to address reasonable privilege or confidentiality concerns, and to remove references concerning the valuation of the Company or Parent’s consideration of the transactions contemplated by this Agreement or other competitively sensitive material; provided, further, that the parties hereto may, as they deem advisable and necessary, designate any materials provided to the other under this Section 6.3 as “outside counsel only.”
(d) Each party shall, and shall cause its Affiliates to, use its reasonable best efforts to obtain the CFIUS Approval. Such efforts shall include promptly (and not later than fifteen (15) Business Days after the date of this Agreement, unless otherwise agreed by the parties) making any draft filing required in connection with the CFIUS Approval in accordance with the DPA, promptly making any final filing in connection with the CFIUS Approval and in accordance with the DPA after receipt of confirmation that CFIUS has no further comment to the draft filing, and providing any information requested by CFIUS or any other agency or branch of the U.S. government in connection with the CFIUS review or investigation of the transactions contemplated by this Agreement within the timeframes set forth in the DPA, and if CFIUS suggests or requests that, or if the parties determine it to be appropriate that, the parties withdraw and resubmit the filing submitted to CFIUS pursuant to this Section 6.3(d), each party shall cooperate in withdrawing and resubmitting the CFIUS filing; provided, however, that neither party shall be under any obligation to cooperate to resubmit such filing if the CFIUS Approval could not be obtained before the Termination Date because the Termination Date would occur before the conclusion of the forty-five (45) day review period as defined by the DPA.
(e) Sellers and With respect to Parent, such efforts shall also include taking or causing to be taken all action necessary to obtain the Buyer Parties each agree CFIUS Approval that is customary for obtaining such approval so as to enable the terms and provisions consummation of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until the Closing, except as including entering into a mitigation agreement, letter of assurance, national security agreement, proxy agreement, trust agreement or other similar arrangement or agreement in relation to the business and assets of Parent or the Company, or otherwise provided divesting or agreeing to divest assets of Parent, with mitigation and related terms and conditions that are customary for such arrangements or agreements; provided, however, that Company and Parent shall not be required to take or cause to be taken or agree to take any action in Section 11.02(d)connection with this Agreement or any transactions contemplated by this Agreement unless such action would be conditioned upon or occur subsequent to the Closing.
(f) Parent and Acquisition Sub agree to use reasonable best efforts (and to cause their Subsidiaries to use reasonable best efforts) to avoid or eliminate each and every impediment and to obtain the approvals of foreign investment and investment in mainland China for the purpose of the Merger and the other transactions contemplated by this Agreement issued by the Investment Commission, Ministry of Economic Affairs, Taiwan.
(g) If required by applicable Law, each party shall, and shall cause its respective Affiliates to, use reasonable best efforts to provide prior notifications, and obtain any approvals or clearance from any applicable governmental bodies, including, in connection with Japanese foreign exchange Law.
Appears in 1 contract
Samples: Merger Agreement (Kemet Corp)
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers The Company and the Buyer Parties Parent shall each use (and cause their respective Subsidiaries to use) their commercially reasonable efforts to (i) take, or to cause to be taken, all actions appropriate action and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are things necessary, proper or advisable under applicable Legal Requirements Law or otherwise are reasonably to consummate and make effective the transactions contemplated by this Agreement as promptly as practicable, (ii) obtain from any Governmental Authorities any consents, licenses, permits, waivers, approvals, authorizations or orders required to obtainbe obtained by Parent or the Company or any of their respective Subsidiaries, or to avoid any Action or Order by any Governmental Authority, in connection with the case authorization, execution and delivery of Sellersthis Agreement and the consummation of the transactions contemplated hereby, including the Offer and the Merger, and (iii) promptly make all necessary filings, and thereafter make any other required submissions, and pay any fees due in connection therewith, with respect to this Agreement, the Authorizations set forth in Schedule 3.05 to Offer and the Sellers' Disclosure Letter and, in Merger required under (A) the case of the Buyer PartiesExchange Act, the Authorizations set forth in Schedule 4.03 to Securities Act and any other applicable securities Laws, (B) the Buyer Parties' Disclosure Letter. Sellers HSR Act and the Buyer Parties Foreign Antitrust Laws, and (C) any other applicable Law, if any; provided, that the Company and Parent shall cooperate with each other in all respects in connection with (x) preparing and filing the Offer Documents, the Schedule 14D-9 and any other filings made or required to be made with the SEC in connection with the Offer or the Merger and the transactions contemplated thereby, (y) making an appropriate filing pursuant to the HSR Act and the Foreign Antitrust Laws as set forth in Section 5.4(d) and determining whether any other action by or in respect of, or filing with, any Governmental Authority is required, in connection with the consummation of all the Offer or the Merger, and (z) seeking any such actions, consents, approvals or waivers or timely making any such filings, including providing copies of all such documents to the nonfiling party's outside antitrust counsel prior to filing and, if requested, shall accept all reasonable additions, deletions or changes suggested in connection therewith. Sellers The Company and the Buyer Parties Parent shall furnish or cause to be furnished each other all information required for any application or other filing to be made under the rules and regulations of any applicable Law in connection with obtaining the transactions contemplated by this Agreement. The Company and Parent may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other pursuant to this Section 5.4 as “Outside Counsel Only Material.”
(b) The Company and Parent shall give (or shall cause their respective Subsidiaries to give) any notices to Third Parties required to be given by such Authorizations. In particularPerson, each of the Buyer Parties and Sellers agrees use, and cause their respective Subsidiaries to use use, their commercially reasonable efforts to obtain any Third Party consents applicable to the Company or Parent, as the case may be, (i) make their initial HSR Act filings in respect of this transaction on necessary, proper or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not advisable to consummate the transactions contemplated by this Agreement.
, (bii) Sellers and required to be disclosed in the Buyer Parties shall each timely give, and shall cause their respective SubsidiariesCompany Disclosure Schedule or the Parent Disclosure Schedule, as applicable, to give, any notices to third Persons and shall use, and cause their respective Subsidiaries, as applicable, to use, commercially reasonable efforts to obtain, in the case of Sellers, or (xiii) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer PartiesCompany, required to prevent a 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. In the event that the Company shall fail to obtain any Third Party consent described in the first sentence of this Section 5.4(b), the Third Person Consents set forth in Schedule 4.03 Company shall use its commercially reasonable efforts, and shall take any such actions reasonably requested by Parent, to minimize any adverse effect upon the Company and its Subsidiaries, and their respective businesses resulting, or which could reasonably be expected to result, after the consummation of the Offer or the Effective Time, from the failure to obtain such consent. Notwithstanding anything to the Buyer Parties' Disclosure Lettercontrary 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 due to such Person.
(c) Sellers and Without limiting the Buyer Parties shall generality of anything contained in this Section 5.4, each give prompt notice to the other of party hereto shall: (i) give the other parties prompt notice of any notice request, inquiry, objection, charge or other communication from Action, actual or threatened, by or before the United States Federal Trade Commission (“FTC”), the United States Department of Justice (“DOJ”) or any Person alleging that other applicable Governmental Authority or any Third Party with respect to the consent Offer, the Merger or any of such Person is or may be required in connection with the other transactions contemplated herebyby this Agreement, (ii) keep the other parties informed as to the status of any notice such request, inquiry, objection, charge or other Action, and (iii) promptly inform the other parties of any communication to or from any Governmental Authority in connection with or any Third Party regarding the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies Offer or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby and Merger. Each party hereto shall (ivi) the occurrence or nonoccurrence of any event that would be likely to cause any of the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such notice.
(d) Sellers and the Buyer Parties each agree to cooperate and use its commercially reasonable efforts to eliminate the antitrust concern(s) of resolve any Governmental Authority such request, inquiry, objection, charge or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactionsother Action, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (Order, whether temporary, preliminary or permanent) of any Court or Governmental Authority , that is in effect and that restrictsprohibits, prevents or prohibits restricts consummation of the transactions contemplated by this Agreement so as to permit consummation of the transactions contemplated by this Agreement, and (ii) 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 in connection with the Offer, the Merger or any of the other transactions contemplated by this Agreement (such cooperation shall include consultation with each other in advance of any meeting or conference with the FTC, the DOJ or any other Governmental Authority or, in connection with any Action by a Third Party, with any other Person, and to the extent permitted by the FTC, the DOJ or such other applicable Governmental Authority or other Person, providing the other party the opportunity to attend and participate in such meetings and conferences).
(d) Without limiting the generality of anything contained in this Section 5.4, each party hereto agrees to: (i) on the date of the commencement of the Offer, make an appropriate filing of a Notification and Report Form pursuant to the HSR Act (including seeking early termination of the waiting period under the HSR Act) with respect to the transactions contemplated by this Agreement, (ii) on the later of (x) the date of the commencement of the Offer and (y) 10 Business Days following the date of this Agreement, make the appropriate initial filings pursuant to the Foreign Antitrust Laws with respect to the transactions contemplated by this Agreement, (iii) supply as promptly as reasonably practicable any additional information and documentary material that may be requested pursuant to the HSR Act by the FTC or the DOJ or pursuant to the Foreign Antitrust laws by the applicable Governmental Authorities, and (iv) use its commercially reasonable efforts to take or cause to be taken all other actions necessary, proper or advisable consistent with this Section 5.4 to cause the expiration or termination of the applicable waiting periods, or receipt of required authorizations, as applicable, under the HSR Act and the Foreign Antitrust Laws as soon as practicable. Parent shall be entitled to direct the antitrust defense of the Offer, the Merger or any other transactions contemplated thereby, or negotiations with, any Governmental Authority or other Third Party relating to the Offer, the Merger or regulatory filings under applicable competition Law, subject to the provisions of this Section 5.4. The Company shall use its commercially reasonable efforts to provide full and effective support of Parent in all material respects in all such negotiations and other discussions or actions to the extent requested by Parent. The Company shall 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, or, in the event of litigation, discovery, admissibility of evidence, timing or scheduling, except as specifically requested by or agreed with Parent. Each party hereto shall bear its own Expenses in connection with any such filings and actions contemplated pursuant to this Section 5.4(d). None of Parent, the Purchaser or the Company shall commit to or agree with any Governmental Authority to stay, toll or extend any applicable waiting period under the HSR Act or applicable competition Laws, without the prior written consent of the other parties. If any request for additional information and documents, including a “second request” under the HSR Act, is received from any Governmental Authority then the Parties shall substantially comply with any such request at the earliest practicable date. If any administrative or judicial action or proceeding is instituted (or threatened to be instituted) by a Governmental Authority challenging the transactions contemplated by this Agreement as violative of the HSR Act or any applicable antitrust or competition Law, each of Parent and the Company shall, and shall cause their respective Representatives to, cooperate to contest and resist, except insofar as Parent and the Company 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 transactions contemplated by this Agreement.
(e) Sellers Notwithstanding the foregoing or any other provision of this Agreement (but subject in all respects to Section 5.1), (i) nothing in this Section 5.4 shall limit a party’s right to terminate this Agreement pursuant to ARTICLE VII hereof and (ii) nothing in this Agreement shall obligate Parent, the Purchaser or any of their respective Affiliates to agree to (and none of the Company or any Company Subsidiary shall, without the prior written consent of Parent): (A) sell, hold separate or otherwise dispose of all or a portion of its respective business, assets or properties, or conduct its business in a specified manner, (B) pay any amounts (other than the payment of filing fees and expenses and fees of counsel), or grant any counterparty to any Contract any material accommodation, (C) limit in any manner whatsoever the ability of such entities to conduct, own, operate or control any of their respective businesses, assets or properties or of the businesses, properties or assets of the Company and the Buyer Parties each agree that the terms and provisions Company Subsidiaries, or (D) waive any of the Confidentiality conditions set forth in Annex I of this Agreement.
(f) Parent and the Purchaser agree that, between the date of this Agreement are hereby incorporated herein by reference and the Effective Time, each of Parent and the Purchaser shall not, and shall ensure that such terms and provisions shall continue none of their Subsidiaries or other Affiliates shall, take any action or propose, announce an intention or agree, in full force and effect until writing or otherwise, to take any action that would reasonably be expected to materially delay or prevent the Closing, except as otherwise provided in Section 11.02(d)consummation of the transactions contemplated hereby.
Appears in 1 contract
Samples: Merger Agreement (Emulex Corp /De/)
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers The Company, Parent and the Buyer Parties Parent Sub shall each use commercially reasonable its best efforts to to: (i) take, or to cause to be taken, all actions appropriate action, and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are things necessary, proper or advisable under applicable Legal Requirements Law or otherwise are reasonably 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 obtainbe obtained or made by Parent, Parent Sub or the Company or any of their Subsidiaries in connection with the case authorization, THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. execution and delivery of Sellersthis Agreement and the consummation of the transactions contemplated herein, including, without limitation, the Authorizations set forth in Schedule 3.05 Merger; (iii) make all necessary filings, and thereafter make any other required submissions, with respect to the Sellers' Disclosure Letter and, in the case of the Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers this Agreement and the Buyer Parties Merger required under (A) Delaware Law and Indiana Law (including holding a stockholders meeting and/or sending notice of merger and appraisal rights) and the federal securities laws and the rules and regulations thereunder, if any, and any other applicable federal or state securities laws, and (B) the HSR Act, and (C) any other applicable Law; provided that Parent, Parent Sub and 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 nonfiling party's outside antitrust counsel non-filing party and its advisors prior to filing and, if requested, shall accept accepting all reasonable additions, deletions or changes suggested in connection therewith. Sellers The Company, Parent and the Buyer Parties Parent Sub shall furnish or cause to be furnished 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 obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.
(b) Sellers (i) Each of the Company, Parent and the Buyer Parties Parent Sub shall each timely give, and shall cause each of their respective Subsidiaries, as applicable, Subsidiaries to give, any notices to third Persons parties, and shall use, and cause each of their respective Subsidiaries, as applicable, Subsidiaries to use, commercially reasonable its best efforts to obtainobtain any third party consents (A) necessary, proper or advisable to consummate the transactions contemplated in this Agreement, (B) disclosed or required to be disclosed in the case of Sellersschedules contained herein, (xC) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parentotherwise required under any Contracts, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letterlicenses, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter.
(c) Sellers and the Buyer Parties shall each give prompt notice to the other of (i) any notice leases or other communication from any Person alleging that the consent of such Person is or may be required agreements in connection with the transactions contemplated hereby, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby and herein or (ivD) required to prevent a Company Material Adverse Effect from occurring prior to or after the occurrence Effective Time or nonoccurrence of any event that would be likely a Parent Material Adverse Effect from occurring prior to cause any of or after the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such noticeEffective Time.
(d) Sellers and the Buyer Parties each agree to cooperate and use commercially reasonable efforts to eliminate the antitrust concern(s) of any Governmental Authority or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this Agreement.
(e) Sellers and the Buyer Parties each agree that the terms and provisions of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d).
Appears in 1 contract
Samples: Merger Agreement (Daou Systems Inc)
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers The Target Companies, the Canadian Ancillary Service Entities, the Target Shareholders and the Buyer Parties Acquiror shall each use commercially all reasonable efforts to (i) take, or to cause to be taken, all actions appropriate action, and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are things necessary, proper or advisable under applicable Legal Requirements Laws or otherwise are reasonably to consummate and make effective the transactions contemplated by this Agreement as promptly as practicable, (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations or orders required to obtainbe obtained or made by the Target Companies, Canadian Ancillary Service Entities, Target Shareholders or Acquiror or any of their respective subsidiaries in connection with the case authorization, execution and delivery of Sellersthis Agreement and the consummation of the transactions contemplated herein, including, without limitation, the Authorizations set forth in Schedule 3.05 Unitary Transaction, and (iii) make all necessary filings, and thereafter make any other required submissions, with respect to the Sellers' Disclosure Letter and, in the case of the Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers this Agreement and the Buyer Parties Unitary Transaction required under (A) the Securities Act and the Exchange Act, and any other applicable Canadian, federal or state securities Laws, (B) the HSR Act, (C) the Competition Act, and (D) any other applicable Law; provided, however,that the Target Companies. Canadian Ancillary Service Entities and Acquiror shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the nonfiling party's outside antitrust counsel non- filing party and its advisors prior to filing and, if requested, shall to accept all reasonable additions, deletions or changes suggested in connection therewith. Sellers The Target Companies, Canadian Ancillary Service Entities, Target Shareholders and the Buyer Parties Acquiror shall furnish or cause to be furnished 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 Registration Statement and the Proxy Statement) in connection with obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.
(bi) Sellers The Target Companies, Canadian Ancillary Service Entities, Target Shareholders and the Buyer Parties Acquiror shall each timely give, and give (or shall cause their respective Subsidiaries, as applicable, subsidiaries or affiliates to give, ) any notices to third Persons parties, and shall use, and cause their respective Subsidiaries, as applicable, subsidiaries to use, commercially all reasonable efforts to obtain, in the case of Sellersobtain any third party consents, (xA) necessary or advisable to consummate the Third Person Consents set forth transactions contemplated in Schedule 3.05 this Agreement, or (B) required to prevent a Target Company Adverse Effect from occurring prior to or after the Sellers' Disclosure Letter Effective Time or an Acquiror Adverse Effect from occurring after the Effective Time (collectively, "Material Consents").
(ii) In the event that any party shall fail to obtain a third party consent described in subsection (b)(i), above, such party shall use best reasonable efforts, and (y) if so shall take any such actions reasonably requested in writing by Parentthe other party hereto, to minimize any additional Third Party Consents set forth in Schedule 3.14 to adverse effect upon the Sellers' Disclosure Letter, and, in the case of the Buyer PartiesTarget Companies, the Third Person Consents set forth in Schedule 4.03 Canadian Ancillary Service Entities and Acquiror, their respective subsidiaries, and their respective businesses resulting, or which could reasonably be expected to result after the Buyer Parties' Disclosure LetterEffective Time, from the failure to obtain such consent.
(c) Sellers From the date of this Agreement until the Effective Time, the Target Companies, Canadian Ancillary Service Entities and the Buyer Parties Target Shareholders shall each give prompt notice promptly notify Acquiror in writing of any pending or, to the knowledge of any Target Company, threatened action, proceeding or investigation by any Governmental Entity or any other of person (i) any notice challenging or other communication from any Person alleging that the consent of such Person is or may be required seeking damages in connection with the transactions contemplated herebyU.S. Merger, the Canada Amalgamation, the Ancillary Asset Acquisition, the Unitary Transaction, the conversion of U.S. Company Common Stock into Acquiror Common Stock pursuant to the U.S. Merger, the conversion of Canada Company Common Stock into Acquiror Common Stock pursuant to the Canada Amalgamation, the conversion of Acquiror Sub-1 capital stock into capital stock of the U.S. Surviving Corporation, and/or the conversion of Acquiror Sub-2 capital stock into capital stock of the Amalgamated Canada Corporation, or (ii) any notice seeking to restrain or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to prohibit the consummation of the Unitary Transaction, the other transactions contemplated hereby and (iv) under this Agreement, or otherwise limit the occurrence right of Acquiror or nonoccurrence of its subsidiaries to own or operate all or any event that would be likely to cause any portion of the Closing Conditions businesses or assets of the other party not to be satisfied Target Companies, the Canadian Ancillary Service Entities or of any other change that their subsidiaries, which in either case is reasonably likely to cause have a breach of Target Company Adverse Effect prior to or after the covenants of such party under this Agreement Effective Time, or to delay or impede an Acquiror Adverse Effect after the ability of either party to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such noticeEffective Time.
(d) Sellers From the date of this Agreement until the Effective Time, Acquiror shall promptly notify the Target Companies and the Buyer Parties each agree to cooperate and use commercially reasonable efforts to eliminate the antitrust concern(s) Target Shareholders in writing of any pending or, to the knowledge of Acquiror, threatened action, proceeding or investigation by any Governmental Authority Entity or Court. If there is no commercially reasonable solution any other person (i) challenging or seeking damages in connection with the U.S. Merger, the Canada Amalgamation, the Ancillary Asset Acquisition, the Unitary Transaction, the conversion of U.S. Company Common Stock into Acquiror Common Stock pursuant to an administrative the U.S. Merger, the conversion of Canada Company Common Stock into Acquiror Common Stock pursuant to the Canada Amalgamation, the conversion of Acquiror Sub-1 capital stock into capital stock of the U.S. Surviving Corporation, and/or the conversion of Acquiror Sub-2 capital stock into capital stock of the Amalgamated Canada Corporation, or judicial challenge (ii) seeking to restrain or prohibit the consummation of the transactionsUnitary Transaction or the other transactions contemplated under this Agreement, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt or in either case reasonably likely to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is in effect and that restricts, prevents or prohibits an Acquiror Adverse Effect prior to the consummation of the transactions contemplated by this AgreementEffective Time.
(e) Sellers and the Buyer Parties each agree that the terms and provisions of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d).
Appears in 1 contract
Samples: Merger Agreement (Okner Seymour N)
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers The Company, Parent and the Buyer Parties Parent Sub shall each use commercially reasonable its best efforts to to: (i) take, or to cause to be taken, all actions appropriate action, and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are things necessary, proper or advisable under applicable Legal Requirements Law or otherwise are reasonably 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 obtainbe obtained or made by Parent, Parent Sub or the Company or any of their Subsidiaries in connection with the case authorization, execution and delivery of Sellersthis Agreement and the consummation of the transactions contemplated herein, including, without limitation, the Authorizations set forth in Schedule 3.05 Merger; (iii) make all necessary filings, and thereafter make any other required submissions, with respect to the Sellers' Disclosure Letter and, in the case of the Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers this Agreement and the Buyer Parties Merger required under (A) Delaware Law and Maryland Law (including holding a stockholders meeting and/or sending notice of merger and appraisal rights) and the federal securities laws and the rules and regulations thereunder, if any, and any other applicable federal or state securities laws, and (B) any other applicable Law; provided that Parent, Parent Sub and 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 nonfiling party's outside antitrust counsel non-filing party and its advisors prior to filing and, if requested, shall accept accepting all reasonable THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. additions, deletions or changes suggested in connection therewith. Sellers The Company, Parent and the Buyer Parties Parent Sub shall furnish or cause to be furnished 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 obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.
(b) Sellers (i) Each of the Company, Parent and the Buyer Parties Parent Sub shall each timely give, and shall cause their respective Subsidiaries, as applicable, to give, give any notices to third Persons and shall useparties, and cause their respective Subsidiaries, as applicable, to use, commercially reasonable use its best efforts to obtainobtain any third party consents (A) necessary, proper or advisable to consummate the transactions contemplated in this Agreement, (B) disclosed or required to be disclosed in the case of Sellersschedules contained herein, (xC) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parentotherwise required under any Contracts, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letterlicenses, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter.
(c) Sellers and the Buyer Parties shall each give prompt notice to the other of (i) any notice leases or other communication from any Person alleging that the consent of such Person is or may be required agreements in connection with the transactions contemplated hereby, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby and herein or (ivD) required to prevent a Company Material Adverse Effect from occurring prior to or after the occurrence Effective Time or nonoccurrence of any event that would be likely a Parent Material Adverse Effect from occurring prior to cause any of or after the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such noticeEffective Time.
(d) Sellers and the Buyer Parties each agree to cooperate and use commercially reasonable efforts to eliminate the antitrust concern(s) of any Governmental Authority or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this Agreement.
(e) Sellers and the Buyer Parties each agree that the terms and provisions of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d).
Appears in 1 contract
Samples: Merger Agreement (Daou Systems Inc)
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply (i) Subject to the parties hereto from terms and after the date conditions of this Agreement until and except to the Closing:
extent that (ax) Sellers the Board of Directors of WABCO shall have withdrawn or modified its approval or recommendation of this Agreement or the Merger or (y) the Board of Directors of MotivePower shall have withdrawn or modified its approval or recommendation of this Agreement or the Merger, in each case as permitted by Section 5.1(b), MotivePower and the Buyer Parties WABCO shall each use commercially their reasonable best efforts to (A) take, or to cause to be taken, all actions actions, and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are necessary, proper or advisable under applicable Legal Requirements laws to consummate the Merger and the other transactions contemplated by this Agreement as promptly as practicable, (B) obtain from any Governmental Entity any consents, licenses, permits, waivers, approvals, authorizations or otherwise are reasonably orders required to obtainbe obtained or made by MotivePower and WABCO or any 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 case authorization, execution and delivery of Sellersthis Agreement and the consummation of the transactions contemplated herein, and (C) make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement and the Merger required under the Securities Act, the Authorizations set forth in Schedule 3.05 to the Sellers' Disclosure Letter andExchange Act and any other applicable law; provided, in the case of the Buyer Partieshowever, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers that MotivePower and the Buyer Parties WABCO shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the nonfiling party's outside antitrust counsel non-filing party and its advisors prior to filing and, if requested, shall accept accepting all reasonable additions, deletions or changes suggested in connection therewith. Sellers MotivePower and the Buyer Parties WABCO shall furnish or cause to be furnished 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 obtaining any such Authorizationsthe transactions contemplated by this Agreement. In particular, each of Subject to the Buyer Parties terms and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect conditions of this transaction on or prior Agreement and except to the 21st day after extent that (x) the date hereof and Board of Directors of WABCO shall have withdrawn or modified its approval or recommendation of this Agreement or the Merger or (iiy) to comply as expeditiously as possible with all lawful requests the Board of Governmental Authorities for additional information and documents pursuant to Directors of MotivePower shall have withdrawn or modified its approval or recommendation of this Agreement or the HSR Act. Each of the parties further agrees that, except with the prior consent of ICOMerger, in the each case of the Buyer Partiesas permitted by Section 5.1(b), MotivePower and WABCO shall not take any action, or Parentrefrain from taking any action, in the case effect of Sellers, it will not (A) extend any waiting period under which would be to delay or impede the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not ability of MotivePower and WABCO to consummate the transactions contemplated by this Agreement.
(ii) Notwithstanding any other provision of this Agreement and except as provided in Section 5.6(a)(iii), in connection with seeking any approval of a Governmental Entity relating to this Agreement or the consummation of the transactions contemplated hereby, without the other party's prior written consent, neither party shall, and neither party shall be required to, commit to any divestiture transaction, agree to sell or hold separate, before or after the Effective Time, any of MotivePower's or WABCO's businesses, product lines, properties or assets, or agree to any changes or restrictions in the operation of such businesses, product lines, properties or assets, in any such case if such divestiture or such restrictions would, individually or in the aggregate, be reasonably expected to have a material adverse effect on the financial condition or results of operations of MotivePower and its Subsidiaries, taken as a whole, after giving effect to the Merger.
(b) Sellers In furtherance and not in limitation of the Buyer Parties foregoing, the parties shall each timely use reasonable best efforts to resolve such objections, if any, as may be asserted with respect to the transactions contemplated by this Agreement under any antitrust, competition or trade regulatory laws, rules or regulations of any domestic or foreign government or governmental authority or any multinational authority ("Antitrust Laws"). If any suit is instituted challenging any of the transactions contemplated by this Agreement as violative of any Antitrust Law, the parties shall take such action (including without limitation, agreeing to hold separate or to divest any of the businesses, product lines or assets of WABCO or its Subsidiaries or of MotivePower or its Subsidiaries (a "Business Unit") (but only if the Business Units required to be held separate or divested do not in the aggregate have a fair market value of more than $25,000,000 or revenues for the most recently completed 12 months of more than $25,000,000) as may be required (a) by the applicable government or governmental or multinational authority (including, without limitation, the Antitrust Division of the United States Department of Justice or the Federal Trade Commission) in order to resolve such objections as such government or authority may have to such transactions under such Antitrust Law, or (b) by any domestic or foreign court or similar tribunal, in any suit brought by a private party or governmental or multinational authority challenging the transactions contemplated by this Agreement as violative of any Antitrust Law, in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order that has the effect of preventing the consummation of any of such transactions. The entry by a court, in any suit brought by a private party or governmental or multinational authority challenging the transactions contemplated by this Agreement as violative of any Antitrust Law, of an order or decree permitting the transactions contemplated by this Agreement, but requiring that any Business Unit of WABCO or its Subsidiaries or MotivePower or its Subsidiaries be divested or held separate (but only if such Business Units required to be held separate or divested do not in the aggregate have a fair market value of more than $25,000,000 or revenues for the most recently completed 12 months of more than $25,000,000), or that would otherwise limit the Surviving Corporation's freedom of action with respect to, or its ability to retain, the Subsidiaries, other assets or businesses of the Constituent Corporations, shall not be deemed a failure to satisfy the conditions specified in Section 6.1(b) or Section 6.1(c) hereof.
(i) MotivePower and WABCO shall give, and or shall cause their respective Subsidiaries, as applicable, Subsidiaries to give, any notices to third Persons parties, and shall use, and cause their respective Subsidiaries, as applicable, Subsidiaries to use, commercially their reasonable best efforts to obtainobtain any third party consents (A) necessary, proper or advisable in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter.
(c) Sellers and the Buyer Parties shall each 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 transactions contemplated hereby, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby and (iv) the occurrence or nonoccurrence of any event that would be likely to cause any of the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party order to consummate the transactions contemplated by this Agreement or (B) required to fulfill their respective obligations set forth herein. No delivery of any notice pursuant prevent a Material Adverse Effect on MotivePower or a Material Adverse Effect on WABCO from occurring prior to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of after the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such noticeEffective Time.
(dii) Sellers and In the Buyer Parties each agree event that either party shall fail to cooperate and use commercially reasonable efforts to eliminate the antitrust concern(s) of obtain any Governmental Authority or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this Agreement.
(e) Sellers and the Buyer Parties each agree that the terms and provisions of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided third party consent described in Section 11.02(d)5.6(b)(i) above, such party shall use its reasonable best efforts, and shall take any such actions reasonably requested by the other party hereto, to minimize any adverse effect upon MotivePower and WABCO, their respective Subsidiaries, and their respective businesses resulting, or which could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
Appears in 1 contract
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers Each of Buyer, the Majority Shareholder and the Buyer Parties Company shall use (and shall cause each use commercially of their respective subsidiaries to use, as applicable) all reasonable efforts to (i) take, or to cause to be taken, all actions appropriate action, and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are things necessary, proper or advisable under applicable Legal Requirements Law or otherwise are reasonably to consummate and make effective the transactions contemplated by this Agreement, and (ii) obtain from any Governmental Entities or other third parties any consents, licenses, permits, waivers, approvals, authorizations or orders required to obtainbe obtained or made by Buyer or the Company or any of their subsidiaries or affiliates, in the case of Sellersas applicable, the Authorizations set forth in Schedule 3.05 to the Sellers' Disclosure Letter and, in the case of the Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers and the Buyer Parties shall cooperate with each other in connection with the making authorization, execution and delivery of all such filings, including providing copies of all such documents to the nonfiling party's outside antitrust counsel prior to filing and, if requested, shall accept all reasonable additions, deletions or changes suggested in connection therewith. Sellers this Agreement and the consummation of the transactions contemplated hereby, including, without limitation, the Merger; provided, however, that the Company and the Majority Stockholder need not seek consent to assignment with respect to those contracts of the Company that do not contain any term or provision regarding assignment, nor is the Company or Majority Stockholder required to obtain consent to assignment of the Company's agreement with 24/7. The Majority Shareholder, the Company and Buyer Parties shall furnish or cause to be furnished 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 obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.
(b) Sellers Each of Buyer, the Majority Shareholder and the Buyer Parties Company shall each timely give, and give (or shall cause their respective Subsidiariessubsidiaries and affiliates, as applicable, to give, ) any notices to third Persons parties, and shall use, use (and cause their respective Subsidiariessubsidiaries and affiliates, as applicable, to use, commercially ) all reasonable efforts to obtain, in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, obtain any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter.
(c) Sellers and the Buyer Parties shall each give prompt notice to the other of third party consents (i) any notice necessary, proper or other communication from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated hereby, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby and (iv) the occurrence or nonoccurrence of any event that would be likely to cause any of the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party advisable to consummate the transactions contemplated by this Agreement Agreement, or (ii) otherwise required under any Material Contracts, or other agreements in connection with, or in order to fulfill their respective obligations set forth herein. No delivery of any notice pursuant allow the Company to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder continue to be entitled to the party receiving such notice.
(d) Sellers and the Buyer Parties each agree to cooperate and use commercially reasonable efforts to eliminate the antitrust concern(s) of any Governmental Authority or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactionsbenefits thereof following, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this Agreement.
(e) Sellers hereby; provided, however, that the Company and the Buyer Parties each agree that the terms and provisions Majority Stockholder need not seek consent to assignment with respect to those contracts of the Confidentiality Agreement are hereby incorporated herein Company that do not contain any term or provision regarding assignment, nor is the Company or Majority Stockholder required to obtain consent to assignment of the Company's agreement with 24/7. In the event that any party shall fail to obtain any third party consent described above and the parties agree to consummate the Merger without such consent, such party shall use commercially reasonable efforts, and shall take any such actions reasonably requested by reference the other parties, to limit the adverse effect upon the Company and that such terms Buyer, their respective subsidiaries, and provisions shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d).their
Appears in 1 contract
Samples: Merger Agreement (Cnet Inc /De)
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers The Company and the Buyer Parties Parent shall each use commercially their reasonable best efforts to (i) take, or to cause to be taken, all actions appropriate action and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are things necessary, proper or advisable under applicable Legal Requirements Law or otherwise are reasonably to consummate and make effective the Merger as promptly as practicable, (ii) obtain in a timely manner from any Governmental Authorities any consents, licenses, permits, waivers, approvals, authorizations or orders required to obtainbe obtained or made by Parent or the Company or any of their subsidiaries in connection with the authorization, in execution and delivery of this Agreement and the case of Sellers, the Authorizations set forth in Schedule 3.05 to the Sellers' Disclosure Letter and, in the case consummation of the Buyer PartiesMerger, the Authorizations set forth in Schedule 4.03 and (iii) as promptly as practicable, make all necessary filings, and thereafter make any other required submissions, with respect to the Buyer Parties' Disclosure Letter. Sellers this Agreement and the Buyer Parties Merger required under (A) the Securities Act and the Exchange Act, and any other applicable federal or state securities Laws, (B) the HSR Act and any related governmental request thereunder and (C) any other applicable Law; provided that Parent and 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 nonfiling party's outside antitrust counsel non-filing party and its advisors prior to filing and, if requested, shall accept accepting all reasonable additions, deletions or changes suggested by the other party in connection therewith. Sellers The Company and the Buyer Parties Parent shall furnish or cause to be furnished 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 obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.
(bi) Sellers Each of Parent and the Buyer Parties Company shall each timely give, and give (or shall cause their its respective Subsidiaries, as applicable, subsidiaries to give, ) any notices to third Persons parties and shall use, and cause their its respective Subsidiaries, as applicable, subsidiaries to use, commercially their reasonable best efforts to obtain, in the case of Sellersobtain any third party consents, (xA) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parentnecessary, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter.
(c) Sellers and the Buyer Parties shall each give prompt notice to the other of (i) any notice proper or other communication from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated hereby, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby and (iv) the occurrence or nonoccurrence of any event that would be likely to cause any of the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party advisable to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement Agreement, (B) disclosed or otherwise limit required to be disclosed in the Company Disclosure Schedule or affect the remedies available hereunder Parent Disclosure Schedule or (C) required to prevent a Company Material Adverse Effect from occurring prior to or after the party receiving such noticeEffective Time or a Parent Material Adverse Effect from occurring after the Effective Time.
(dii) Sellers In the event that Parent or the Company shall fail to obtain any third party consent described in subsection (b)(i) above, it shall use its reasonable best efforts, and shall take any such actions reasonably requested by the Buyer Parties each agree other party, to cooperate minimize any adverse effect upon the Company and use commercially reasonable efforts Parent, their respective subsidiaries, and their respective businesses resulting, or which could reasonably be expected to eliminate result after the antitrust concern(s) of any Governmental Authority or Court. If there is no commercially reasonable solution Effective Time, from the failure to an administrative or judicial challenge to the consummation of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this Agreementobtain such consent.
(e) Sellers and the Buyer Parties each agree that the terms and provisions of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d).
Appears in 1 contract
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers Inteuro, the Inteuro Shareholders and the Buyer Parties Keystone shall each use commercially reasonable their respective best efforts to (i) take, or to cause to be taken, all actions appropriate action, and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are things necessary, proper or advisable under applicable Legal Requirements law or required to be taken by any Governmental Entity or otherwise are reasonably to consummate the Merger and the transactions contemplated by this Agreement as promptly as practicable, (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations or orders required to obtainbe obtained or made by Inteuro or Keystone in connection with the authorization, in execution and delivery of this Agreement and the case of Sellers, the Authorizations set forth in Schedule 3.05 to the Sellers' Disclosure Letter and, in the case consummation of the Buyer Partiestransactions contemplated hereby, the Authorizations set forth in Schedule 4.03 and (iii) as promptly as practicable, make all necessary filings, and thereafter make any other required submissions, with respect to the Buyer Parties' Disclosure Letter. Sellers this Agreement and the Buyer Parties Merger required under any applicable law; provided that Keystone and Inteuro shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the nonfiling party's outside antitrust counsel Other Party and its advisors prior to filing and, if requested, shall to accept all reasonable additions, deletions or changes suggested in connection therewith. Sellers All fees and expenses relating to compliance with the Xxxx-Xxxxx- Xxxxxx Antitrust Improvements Act of 1976 by Inteuro and the Buyer Parties Inteuro Shareholders shall be borne by Inteuro. All fees and expenses relating to compliance with the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 by Keystone shall be borne by Keystone. Inteuro and Keystone shall use reasonable best efforts to furnish or cause to be furnished the Other Party 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 obtaining any such Authorizations. In particular, each of the Buyer Parties transactions contemplated by the Merger and Sellers agrees to use commercially reasonable efforts to this Agreement.
(i) make Inteuro and Keystone shall give any notices to third parties, and use their initial HSR Act filings in respect of this transaction on or prior reasonable best efforts to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees thatobtain any third party consents, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not necessary to consummate the Merger and the transactions contemplated by this Agreement, (B) disclosed or required to be disclosed in the schedules to this Agreement or (C) required to prevent a Material Adverse Effect on Inteuro or Keystone.
(bii) Sellers and In the Buyer Parties event that Inteuro or Keystone shall each timely givefail to obtain any third party consent described in subsection (b)(i) above, Inteuro or Keystone, as appropriate, shall use its reasonable best efforts, and shall cause take any such actions reasonably requested by the Other Party, to minimize any adverse effect on Inteuro, its subsidiaries and Keystone and their respective Subsidiariesbusinesses resulting, as applicableor which could reasonably be expected to result after the Effective Time, from the failure to give, any notices to third Persons and shall use, and cause their respective Subsidiaries, as applicable, to use, commercially reasonable efforts to obtain, in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letterobtain such consent.
(c) Sellers From the date of this Agreement until the Effective Time, each of Inteuro and Keystone shall promptly notify the Buyer Parties shall each give prompt notice Other Party of any pending or, to the Knowledge of such party, threatened action, proceeding or investigation by any Governmental Entity or any other of Person (i) any notice challenging or other communication from any Person alleging that the consent of such Person is or may be required seeking material damages in connection with the transactions contemplated hereby, (ii) any notice Merger or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby and (iv) the occurrence or nonoccurrence of any event that would be likely to cause any of the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party to consummate the transactions contemplated by this Agreement or (ii) seeking to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation restrain or warranty prohibit the consummation of the party giving such notice contained in this Agreement Merger or otherwise limit or affect the remedies available hereunder right of Keystone or, to the party receiving Knowledge of such noticefirst party, any subsidiary of Keystone to own or operate all or any portion of the businesses or assets of Inteuro, which in either case is reasonably likely to have a Material Adverse Effect on Keystone.
(d) Sellers Each party shall execute and deliver on and after the Buyer Parties each agree execution of this Agreement such further documents and instruments and take such other actions as the Other Party may reasonably request to cooperate implement and use commercially reasonable efforts to eliminate effect the antitrust concern(s) purposes of any Governmental Authority or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this Agreement.
(e) Sellers and the Buyer Parties each agree that the terms and provisions of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d).
Appears in 1 contract
Samples: Merger Agreement (Keystone Automotive Industries Inc)
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers The Company, Parent and the Buyer Parties Merger Sub shall each use commercially their reasonable best efforts to (i) take, or to cause to be taken, all actions appropriate action and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are things necessary, proper or advisable under applicable Legal Requirements Applicable Law, including Antitrust Laws to consummate and make effective the Transactions as promptly as practicable, (ii) obtain from any Governmental Authorities any consents, licenses, permits, waivers, approvals, authorizations or otherwise are reasonably orders required to obtainbe obtained by Parent, Merger Sub or the Company, or any of their respective Subsidiaries, or to avoid any Proceeding by any Governmental Authority (including those in the case of Sellersconnection with Antitrust Laws), the Authorizations set forth in Schedule 3.05 to the Sellers' Disclosure Letter and, in the case of the Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers and the Buyer Parties shall cooperate with each other in connection with the making authorization, execution and delivery of this Agreement and the consummation of the Transactions and (iii) (A) as promptly as reasonably practicable, and in any event within ten (10) Business Days after the date hereof, make all such necessary filings, including providing copies of and thereafter make any other required submissions, with respect to this Agreement required under the HSR Act and (B) as promptly as reasonably practicable after the date hereof, make all such documents necessary filings, and thereafter make any other required submissions, with respect to the nonfiling party's outside antitrust counsel prior to filing and, if requested, shall accept all reasonable additions, deletions or changes suggested in connection therewiththis Agreement required under any other Applicable Law. Sellers The Company and the Buyer Parties Parent shall furnish or cause to be furnished each other all information required for any application or other filing to be made under the rules and regulations of any Applicable Law in connection with obtaining the Transactions. No party shall give consent to any such Authorizations. In particular, each voluntary extension of the Buyer Parties any statutory deadline or withdraw its notification and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents report form pursuant to the HSR Act. Each Act or any other filing made pursuant to any other Antitrust Law unless the other party has given its prior written consent to such extension or delay, which consent will not be unreasonably withheld, conditioned or delayed; provided, that, Parent may withdraw and refile its Notification and Report Form initially filed pursuant to the HSR Act with respect to the Transactions on one occasion, consistent with the procedure set forth in 16.C.F.R. 803.12, without obtaining the consent of the parties further agrees thatCompany. Neither Parent nor the Company shall be entitled to make additional commitments to, except with or agreements with, Governmental Authorities to delay the prior consent of ICO, in Closing following the case expiration or termination of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary commitment to, or agreement with with, any Governmental Authority not to consummate close the transactions contemplated by this AgreementTransactions before a certain date unless the other party shall have agreed to such commitment or agreement, such agreement not to be unreasonably withheld, conditioned, or delayed.
(b) Sellers and Without limiting the Buyer Parties generality of anything contained in this Section 6.03, each party hereto shall each timely give, and shall cause their respective Subsidiaries, as applicable, to give, any notices to third Persons and shall use, and cause their respective Subsidiaries, as applicable, to use, commercially use reasonable best efforts to obtain, in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing extent not prohibited by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter.
(c) Sellers and the Buyer Parties shall each give prompt notice to the other of Governmental Authority or Applicable Law): (i) give the other parties prompt notice of the making or commencement of any notice request or Proceeding by or before any Governmental Authority with respect to the Merger or any of the other Transactions; (ii) keep the other parties reasonably informed as to the status of any such request or Proceeding; (iii) promptly inform the other parties of any communication to or from any Governmental Authority regarding the approval of the Merger or any of the other Transactions; (iv) respond as promptly as reasonably practicable to any additional requests for information received by any party from any Governmental Authority with respect to the Transactions or filings contemplated by this Section 6.03; and (v) (A) obtain termination or expiration of the waiting period under the HSR Act and (B) prevent the entry in any Proceeding brought by a Governmental Authority or any other Person alleging that of any Governmental Order which would prohibit, make unlawful or delay the consent consummation of such Person is the Transactions. To the extent not prohibited by Governmental Authority or may be required Applicable Law, each party hereto will consult and reasonably cooperate with the other parties, provide each other with advance copies of and a reasonable opportunity to comment on, and will consider in good faith the views of the other parties in connection with any filing (except for HSR filings), analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with the transactions contemplated herebyMerger or any of the other Transactions; provided, (ii) however, that Parent shall make the final determination as to the appropriate course of action and determine the strategy and tactics for obtaining any notice necessary consents, licenses, permits, waivers, approvals, authorizations or orders from any Governmental Authority, and the Company shall take all reasonable actions to support Parent in connection therewith. In addition, except as may be prohibited by any Governmental Authority or by Applicable Law, in connection with any such request, or Proceeding, each party hereto will permit Representatives of the other communication from parties to be present at each meeting or conference, whether in-person, telephonic, or videoconference, relating to such request, or Proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Authority in connection with such request, or Proceeding. Materials required to be provided pursuant to this section may be redacted (A) to remove references concerning the transactions contemplated herebyvaluation of the Company, (iiiB) as necessary to comply with contractual arrangements, (C) as necessary to comply with applicable law, and (D) as necessary to address reasonable privilege or confidentiality concerns; provided that a party may reasonably designate any Actions commenced competitively sensitive material provided to another party under this section as “Outside Counsel Only.”
(c) Notwithstanding anything to the contrary in this Agreement, in connection with obtaining any approval or consent related to any Applicable Law, Parent shall cooperate in good faith with the Governmental Authorities and shall undertake promptly any action reasonably necessary to complete lawfully the Transactions as soon as reasonably practicable (but in any event prior to the End Date) and any and all action reasonably necessary or advisable to avoid, prevent, eliminate or remove the actual or threatened commencement of any Proceeding in writing againstany forum by or on behalf of any Governmental Authority or the issuance of any Governmental Order that would (or to obtain the agreement or consent of any Governmental Authority to the Transactions the absence of which would) delay, relating to or involving enjoin, prevent, restrain or otherwise affecting the Seller Companies or the Buyer Parties, that relate to prohibit the consummation of the transactions contemplated hereby Merger, including by (i) proffering and consenting and/or agreeing to a Governmental Order or other agreement providing for the sale, licensing or other disposition, or the holding separate of, or other limitations or restrictions on, or limiting any freedom of action with respect to, particular assets, categories of assets or lines of business of the Company, (ii) promptly effecting the disposition, licensing or holding separate of assets or lines of business of the Company, and (iviii) the occurrence contesting, defending and appealing any Proceeding, whether judicial or nonoccurrence of any event that would be likely to cause any of the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under administrative, challenging this Agreement or the consummation of the Transactions, in each case, at such time as may be necessary to delay permit the lawful consummation of the Transactions on or impede prior to the ability of either party End Date; provided, however, that Parent shall have no obligation to consummate the transactions offer, negotiate, commit to or effect any actions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (ivi) or (ii) of this Section 7.01(c6.03(c) (x) if such action would have a material adverse effect on the business of the Acquired Companies, taken as a whole, and (y) unless the effectiveness of such action is conditioned upon the Closing; provided, further, that Parent shall not be obligated to obtain “prior approval” or other affirmative approval from a Governmental Authority to carry out any future transaction, and shall not be required to agree to make any notification or provide prior notice to any Governmental Authority regarding any proposed transaction. For the avoidance of doubt, this Section 6.03(c) shall cure any breach not be construed as binding Affiliates of any representation Parent or warranty of the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such noticeMerger Sub.
(d) Sellers Parent shall be solely responsible for and the Buyer Parties each agree to cooperate and use commercially reasonable efforts to eliminate the antitrust concern(s) of pay all filing fees required in connection with obtaining any Governmental Authority consents or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation approvals of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is type described in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this AgreementSection 6.03.
(e) Sellers and the Buyer Parties each agree that the terms and provisions of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d).
Appears in 1 contract
Samples: Merger Agreement (Model N, Inc.)
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers Each Target Company, Parent and the Buyer Parties Parent Sub shall each use commercially reasonable its best efforts to to: (i) take, or to cause to be taken, all actions appropriate action, and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are things necessary, proper or advisable under applicable Legal Requirements Law or otherwise are reasonably 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 obtainbe obtained or made by Parent, Parent Sub or any Target Company in connection with the case authorization, execution and delivery of Sellersthis Agreement and the consummation of the transactions contemplated herein, including, without limitation, the Authorizations set forth in Schedule 3.05 Merger; (iii) make all necessary filings, and thereafter make any other required submissions, with respect to the Sellers' Disclosure Letter and, in the case of the Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers this Agreement and the Buyer Parties Merger required under (A) Delaware Law and Indiana Law (including holding a shareholders meeting and/or sending notice of merger and appraisal rights) and the federal securities laws and the rules and regulations thereunder, if any, and any other applicable federal or state securities laws, and (B) the HSR Act, and (C) any other applicable Law; provided that Parent, Parent Sub and the Target Companies shall THIS EXHIBIT HAS BEEN REDACTED AND IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST. REDACTED MATERIAL IS MARKED WITH A *** AND HAS BEEN FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION. CONFIDENTIAL TREATMENT REQUESTED cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the nonfiling party's outside antitrust counsel non-filing party and its advisors prior to filing and, if requested, shall accept accepting all reasonable additions, deletions or changes suggested in connection therewith. Sellers Each Target Company, Parent and the Buyer Parties Parent Sub shall furnish or cause to be furnished 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 obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.
(bi) Sellers Each Target Company, Parent and the Buyer Parties Parent Sub shall each timely give, and shall cause each of their respective Subsidiaries, as applicable, Subsidiaries to give, any notices to third Persons parties, and shall use, and cause each of their respective Subsidiaries, as applicable, Subsidiaries to use, commercially reasonable its best efforts to obtainobtain any third party consents (A) necessary, proper or advisable to consummate the transactions contemplated in this Agreement, (B) disclosed or required to be disclosed in the case of Sellersschedules contained herein, (xC) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parentotherwise required under any Contracts, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letterlicenses, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter.
(c) Sellers and the Buyer Parties shall each give prompt notice to the other of (i) any notice leases or other communication from any Person alleging that the consent of such Person is or may be required agreements in connection with the transactions contemplated hereby, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby and herein or (ivD) required to prevent a Target Company Material Adverse Effect from occurring prior to or after the occurrence Effective Time or nonoccurrence of any a Parent Material Adverse Effect from occurring prior to or after the Effective Time.
(ii) In the event that would be likely any party shall fail to cause obtain any of the Closing Conditions of third party consent described in subsection (b) (i) above, such party shall use its best efforts, and shall take any such actions reasonably requested by the other party not hereto, to be satisfied or of minimize any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party to consummate the transactions contemplated by this Agreement or to fulfill adverse effect upon each Target Company, Parent, Parent Sub and their respective obligations set forth herein. No delivery of any notice pursuant businesses resulting, or which could reasonably be expected to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of result after the party giving Effective Time, from the failure to obtain such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such noticeconsent.
(d) Sellers and the Buyer Parties each agree to cooperate and use commercially reasonable efforts to eliminate the antitrust concern(s) of any Governmental Authority or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this Agreement.
(e) Sellers and the Buyer Parties each agree that the terms and provisions of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d).
Appears in 1 contract
Samples: Merger Agreement (Daou Systems Inc)
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to From the parties hereto from and after the date of this Agreement Execution Date until the Closing:
(a) Sellers Subject to Seller’s and the Buyer’s additional obligations in clauses (b), (c) and (d) of this Section 6.2, Seller and Buyer Parties shall each use all commercially reasonable efforts to (i) take, or to cause to be taken, all actions actions, and to do, or to cause to be done, all thingsthings that, including the making of all necessary filings and thereafter any other required submissionsin either case, that are necessary, proper or advisable under applicable Legal Requirements Law or otherwise are reasonably to consummate and make effective the transactions contemplated by this Agreement and the Other Agreements, and (ii) obtain from the relevant Governmental Authorities all Authorizations required to obtainbe obtained at or prior to the Closing by Buyer, Seller or the Company in connection with the authorization, execution, delivery and performance of this Agreement and the Other Agreements and the consummation of the transactions contemplated hereby and thereby.
(b) As promptly as practicable, Seller and Buyer shall make all necessary filings, including filings under the HSR Act, with CFIUS and other filings and registrations referred to in the case of SellersDisclosure Schedules, and thereafter make any other required submissions, with respect to this Agreement and the Authorizations set forth in Schedule 3.05 transactions contemplated hereby required under any Law at or prior to the Sellers' Disclosure Letter andClosing. Buyer and Seller shall bear the costs and expenses of their respective filings; provided, that Buyer shall pay the filing fee in the case of the connection with any such filings. Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers and the Buyer Parties Seller shall reasonably cooperate with each other in connection with the making of all such filings, including by providing copies of all such documents to the nonfiling party's outside antitrust counsel party and its advisors prior to filing and, if requested, shall accept accepting all reasonable additions, deletions or changes suggested in connection therewith. Sellers Buyer and the Buyer Parties Seller shall each use all commercially reasonable efforts to furnish or cause to be furnished all information required for any application or other filing to be made pursuant to any Law in connection with obtaining the transactions contemplated by this Agreement and the Other Agreements. If any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on party hereto or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities Affiliate thereof shall receive a request for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with documentary material from any Governmental Authority not with respect to consummate the transactions contemplated by this Agreement.
(b) Sellers and the Buyer Parties , then such party shall each timely give, and shall cause their respective Subsidiaries, as applicable, to give, any notices to third Persons and shall use, and cause their respective Subsidiaries, as applicable, to use, use its commercially reasonable efforts to obtainmake, or cause to be made, as soon as reasonably practicable and after consultation with the other party, an appropriate response in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Lettercompliance with such request.
(c) Sellers Buyer and the Buyer Parties Seller shall each give prompt notice to the other of the receipt of any written notice or other written communication from (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 transactions contemplated hereby, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced Governmental Authority or threatened in writing other Person regarding the initiation or threat of initiation of any claims, actions, suits, proceedings, arbitrations or investigations against, relating to to, or involving or otherwise affecting the Company, Buyer or Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby hereby, and (iv) any Person regarding the occurrence or nonoccurrence of any event that the occurrence or nonoccurrence of which would be reasonably likely to (A) cause any of condition to the Closing Conditions obligations of the other party to consummate the transactions contemplated hereby not to be satisfied or of any other change that is reasonably likely to satisfied, (B) cause a breach of the representations, warranties or covenants of such party under this Agreement Agreement, or to (C) delay or impede the ability of either party Buyer or Seller, respectively, to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such notice.
(d) Sellers Buyer and the Buyer Parties Seller each agree to cooperate and to use all commercially reasonable efforts to eliminate the antitrust concern(s) of vigorously contest and to resist any Governmental Authority or Court. If there is no commercially reasonable solution to an action, including legislative, administrative or judicial challenge to the consummation of the transactionsaction, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order order (whether temporary, preliminary or permanent) of any Court court or other Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this Agreement or the Other Agreements, including the vigorous pursuit of all available avenues of administrative and judicial appeal and all available legislative action. Notwithstanding anything to the contrary in this Agreement, Buyer shall take, or cause to be taken, any and all commercially reasonable actions required by any Governmental Authority as a condition to the granting of any Authorization necessary for the consummation of the transactions contemplated by this Agreement or the Other Agreements, or as may be required to avoid, lift, vacate or reverse any legislative, administrative or judicial action that would otherwise cause any closing condition not to be satisfied; provided, however, that in no event shall Buyer or any of its Affiliates be required, in connection with any demand therefor by any Governmental Authority or otherwise, to agree or commit to (i) divest, hold separate, offer for sale, abandon, limit its operation of or take similar action with respect to any assets (tangible or intangible) or any business interest of any of them (including with respect to the Company after consummation of the transactions contemplated by this Agreement), or (ii) any restrictions or actions that after the Closing Date would limit the freedom of the Company’s businesses, product lines or assets.
(e) Sellers Buyer and Seller shall each timely give or cause to be given all notices to third Persons and use all commercially reasonable efforts to obtain all Third Person Consents (i) set forth on Sections 3.3(a), 5.3(a) and 8.3(c) of the Disclosure Schedules, (ii) required under any Material Contract or Seller Contract in connection with the consummation of the transactions contemplated hereby or (iii) otherwise required to prevent a Material Adverse Effect from occurring prior to or after the Closing.
(f) Buyer Parties each agree shall use commercially reasonable efforts to secure the release of Seller and its Affiliates from liability for any post-Closing obligations of Company under any Authorizations or Material Contracts assigned or transferred from Seller or its Affiliates to Company, and to secure the release of Seller and its Affiliates from any guarantees of the Company’s post-Closing obligations under any Authorizations or Material Contracts to which the Company remains a party after Closing. Buyer’s efforts in this regard shall include, if necessary, providing a bond, letter of credit or other form of payment and/or performance assurance reasonably acceptable to the contract counterparty, except to the extent prohibited under Buyer’s or any of its Affiliates’ existing credit facilities. Buyer acknowledges that Seller and its Affiliates shall have the terms right to cancel or revoke all guarantees, bonds, letters of credit and similar undertakings provided by them or on their behalf to secure any post-Closing obligations of Company. The provisions of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions this paragraph shall continue in full force and effect until the survive Closing, except as otherwise provided in Section 11.02(d).
Appears in 1 contract
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers The Company and the Buyer Parties Acquiror shall each use, and shall cause each of their respective subsidiaries to use, and each of the Shareholders shall use commercially all reasonable efforts promptly (i) to take, or to cause to be taken, all actions appropriate action, and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are things necessary, proper or advisable under applicable Legal Requirements Law or otherwise are reasonably to consummate and make effective the transactions contemplated by this Agreement, (ii) to obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations or orders required to obtainbe obtained by the Company, Acquiror or any of the Shareholders, respectively, or any of the Company's or Acquiror's respective subsidiaries, in connection with the case authorization, execution, delivery and performance of Sellers, this Agreement and the Authorizations set forth in Schedule 3.05 to the Sellers' Disclosure Letter and, in the case consummation of the Buyer Partiestransactions contemplated hereby, the Authorizations set forth in Schedule 4.03 (iii) to the Buyer Parties' Disclosure Letter. Sellers make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement and the Buyer Parties Merger required under (A) 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 (C) any other applicable Law; provided that Acquiror and 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 nonfiling party's outside antitrust counsel party and its advisors prior to filing and, if requested, shall accept all reasonable additions, deletions or changes suggested in connection therewith. Sellers The Company and the Buyer Parties Acquiror shall furnish or cause to be furnished 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 obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.
(bc) Sellers The Company, Acquiror and each of the Buyer Parties Shareholders shall each timely give, and promptly give (or shall cause their respective Subsidiaries, as applicable, subsidiaries to give, ) any notices to third Persons and shall useregarding the Merger, and cause their respective Subsidiaries, as applicable, to use, commercially reasonable efforts to obtain, in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter.
(c) Sellers and the Buyer Parties shall each give prompt notice to the other of (i) any notice this Agreement or other communication from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated hereby, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby to third parties required by Law or by any contract, license, lease or other agreement to which such person is a party or by which such person is bound, and use (ivand cause its subsidiaries to use) the occurrence all reasonable efforts to obtain any third party consents (i) necessary, proper or nonoccurrence of any event that would be likely to cause any of the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party advisable to consummate the transactions contemplated by this Agreement Agreement, (ii) otherwise required under any contracts, licenses, leases or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained other agreements in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such notice.
(d) Sellers and the Buyer Parties each agree to cooperate and use commercially reasonable efforts to eliminate the antitrust concern(s) of any Governmental Authority or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is in effect and that restricts, prevents or prohibits connection with the consummation of the transactions contemplated by this AgreementAgreement or (iii) required to prevent a Company Material Adverse Effect or an Acquiror Material Adverse Effect, respectively, from occurring after the Effective Time.
(ed) Sellers If any party shall fail to obtain any third party consent described in subsection (c)(i) above, such party shall use all reasonable efforts, and shall take any such actions reasonably requested by the Buyer Parties each agree that other parties, to limit the terms adverse effect upon the Company and provisions of Acquiror, their respective subsidiaries, and their respective businesses resulting, or which could reasonably be expected to result after the Confidentiality Agreement are hereby incorporated herein by reference and that Effective Time, from the failure to obtain such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d)consent.
Appears in 1 contract
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to During the parties hereto from and after the date of this Agreement until the ClosingInterim Period:
(a) Sellers Subject to Seller’s and Buyer’s additional Obligations in clauses (b), (c) and (d) of this Section 6.3 and the other terms and conditions of this Agreement, Seller and Buyer Parties shall each use commercially reasonable efforts Commercially Reasonable Efforts to (i) take, or to cause to be taken, all actions actions, and to do, or to cause to be done, all thingsthings that, including the making of all necessary filings and thereafter any other required submissionsin either case, that are necessary, proper or advisable under applicable Legal Requirements Law or otherwise are reasonably to consummate and make effective the transactions contemplated by this Agreement and the Related Agreements; provided, however, that the foregoing shall not require or cause any Party to waive any right it may have under other provisions of this Agreement and (ii) obtain from the relevant Governmental Authorities all Authorizations required to obtainbe obtained at or prior to the Closing by Buyer, Seller, the Company or the Acquired Subsidiary in connection with the authorization, execution, delivery and performance of this Agreement and the Related Agreements and the consummation of the transactions contemplated hereby and thereby.
(b) As promptly as practicable, Seller and Buyer shall make all necessary filings, including filings under the HSR Act and other filings and registrations referred to in the case of SellersDisclosure Schedules, and thereafter make any other required submissions, with respect to this Agreement and the Authorizations set forth in Schedule 3.05 transactions contemplated hereby required under any Law at or prior to the Sellers' Disclosure Letter andClosing. Buyer and Seller shall bear the costs and expenses of their respective filings; provided, that Buyer shall pay the filing fee in the case of the connection with any such filings. Seller and Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers and the Buyer Parties shall reasonably cooperate with each other in connection with the making of all such filings, including providing copies of all such documents filings and subsequent submissions to any Governmental Authority. Seller and Buyer shall each use Commercially Reasonable Efforts to furnish to the nonfiling party's outside antitrust counsel prior to filing and, if requested, shall accept all other Party such necessary information and reasonable additions, deletions or changes suggested in connection therewith. Sellers and assistance as the Buyer Parties shall furnish or cause to be furnished all information required for any application or other filing to be made Party may reasonably request in connection with obtaining the foregoing and will keep the other Party reasonably informed with respect to any such Authorizationsconsent, authorization, order or approval sought from, or exemption, review, investigation or inquiry conducted by, any Governmental Authority in connection with this Agreement and the transactions contemplated hereby. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to Each Party shall (i) make their initial HSR Act filings have the right to review in respect of this transaction on or prior advance, and to the 21st day after the date hereof and (ii) extent practicable consult on, any written materials submitted to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate in connection with the transactions contemplated by this Agreement.
(b) Sellers and the Buyer Parties shall each timely give, and shall cause their respective Subsidiaries(ii) consult with and consider in good faith the views of the other Party, as applicableprior to making any submission, to give, providing any notices to third Persons and shall use, and cause their respective Subsidiaries, as applicable, to use, commercially reasonable efforts to obtain, in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 material correspondence or entering into any agreement with any Governmental Authority with respect to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Lettertransactions contemplated hereby.
(c) Sellers Buyer and the Buyer Parties Seller shall each give prompt notice to the other of the receipt of and if in writing, furnish the others with copies of (ior, in the case of oral communications, advise the others of the contents of) any notice or other communication from (i) any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated hereby, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced Governmental Authority or threatened in writing other Person regarding the initiation or threat of initiation of any Claims or Proceedings against, relating to to, or involving or otherwise affecting the Company, the Acquired Subsidiary, Buyer or Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby hereby, and (iv) any Person regarding the occurrence or nonoccurrence of any event that the occurrence or nonoccurrence of which would be reasonably likely to (A) cause any of condition to the Closing Conditions Obligations of the other party Party to consummate the transactions contemplated hereby not to be satisfied or of any other change that is reasonably likely to satisfied, (B) cause a breach of the representations, warranties or covenants of such party Party under this Agreement Agreement, or to (C) delay or impede the ability of either party Buyer or Seller, respectively, to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations Obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such notice.
(d) Sellers Buyer and the Buyer Parties Seller each agree to cooperate and to use commercially reasonable efforts Commercially Reasonable Efforts to eliminate the antitrust concern(s) of contest and to resist any Governmental Authority or Court. If there is no commercially reasonable solution to an action, including legislative, administrative or judicial challenge to the consummation of the transactionsaction, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court court or other Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this Agreement or the Related Agreements, including the pursuit of all available avenues of administrative and judicial appeal and all available legislative action. Notwithstanding the foregoing, nothing in this Section 6.3 shall require, or be construed to require any Party or its Affiliates to agree to (i) sell, hold, divest, discontinue or limit, before or after the Closing Date, any assets, businesses or interests of the Parties or any of their respective Affiliates; (ii) any conditions relating to, or changes or restrictions in, the operations of any such assets, businesses or interests which, in either case, could reasonably be expected to result in a Material Adverse Effect or materially and adversely impact the economic or business benefits to the Parties of the transactions contemplated by this Agreement; or (iii) any material modification or waiver of the terms and conditions of this Agreement. Neither Buyer nor Seller nor any of their respective Affiliates shall purchase or otherwise acquire or agree to purchase or otherwise acquire, whether directly or indirectly, any assets or interest in any assets or Persons that would reasonable be expected to materially and adversely affect the filings made pursuant to Section 6.3(b).
(e) Sellers Buyer and Seller shall each timely give or cause to be given all notices to third Persons and use Commercially Reasonable Efforts to obtain all Third Person Consents (i) set forth in Section 3.3(a) and Section 5.3(a) of the Disclosure Schedules, (ii) required under any Material Company Contract or Seller Contract in connection with the consummation of the transactions contemplated hereby or (iii) otherwise required to prevent a Material Adverse Effect from occurring prior to or after the Closing.
(f) Buyer shall use Commercially Reasonable Efforts to secure the release of Seller and its Affiliates from liability for any post-Closing Obligations of the Companies under any Authorizations or Material Contracts assigned or transferred from Seller or its Affiliates to the Companies, and to secure the release of Seller and its Affiliates from any guarantees of the Companies’ post-Closing Obligations under any Authorizations or Material Contracts to which the Companies remain a party after Closing. Buyer’s efforts in this regard shall include, if necessary, causing the Buyer Guarantor to guarantee the Obligations of the Company under the affected Authorizations or Material Contracts. Buyer acknowledges that Seller and its Affiliates shall have the right to cancel or revoke all guarantees, bonds, letters of credit and similar undertakings provided by them or on their behalf to secure any post-Closing Obligations of the Companies. The provisions of this paragraph shall survive the Closing.
(g) Notwithstanding Section 6.3(f), prior to the Closing Buyer shall deliver to the applicable beneficiary or counterparty replacement or substitute guaranties, letters of credit, bonds, security deposits, and other surety obligations and evidence of financial capacity, in each case acceptable to Buyer and the Buyer Parties each agree that the terms relevant beneficiary or counterparty, in substitution and provisions replacement of those credit support arrangements set forth in Section 6.3(g) of the Confidentiality Agreement are hereby incorporated herein by reference Disclosure Schedules (the “Credit Support Arrangements”), in form and that such terms substance acceptable to Seller, and provisions shall continue in full force cause the release as of the Closing of Seller and effect until its Affiliates from all Obligations relating to the Closing, except as otherwise provided in Section 11.02(d)Credit Support Arrangements.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Tesoro Corp /New/)
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers North Star, the North Star Shareholders and the Buyer Parties Keystone shall each use commercially reasonable their respective best efforts to (i) take, or to cause to be taken, all actions appropriate action, and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are things necessary, proper or advisable under applicable Legal Requirements law or required to be taken by any Governmental Entity or otherwise are reasonably to consummate the Merger and the transactions contemplated by this Agreement as promptly as practicable, (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations or orders required to obtainbe obtained or made by North Star or Keystone in connection with the authorization, in execution and delivery of this Agreement and the case consummation of Sellersthe transactions contemplated hereby, and (iii) as promptly as practicable, make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement and the Merger required under (A) the Securities Act, the Authorizations set forth in Schedule 3.05 to the Sellers' Disclosure Letter and, in the case of the Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers Exchange Act and the Buyer Parties any other applicable federal or state securities laws and (B) any other applicable law; provided that Keystone and North Star shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the nonfiling party's outside antitrust counsel Other Party and its advisors prior to filing and, if requested, shall to accept all reasonable additions, deletions or changes suggested in connection therewith. Sellers All fees and expenses relating to compliance with the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 by North Star and the Buyer Parties North Star Shareholders shall be borne by North Star. All fees and expenses relating to compliance with the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976 by Keystone shall be borne by Keystone. North Star and Keystone shall use reasonable best efforts to furnish or cause to be furnished the Other Party 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 Registration Statement) in connection with obtaining any such Authorizations. In particular, each of the Buyer Parties transactions contemplated by the Merger and Sellers agrees to use commercially reasonable efforts to this Agreement.
(i) make North Star and Keystone shall give any notices to third parties, and use their initial HSR Act filings in respect of this transaction on or prior reasonable best efforts to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees thatobtain any third party consents, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not necessary to consummate the Merger and the transactions contemplated by this Agreement, (B) disclosed or required to be disclosed in the schedules to this Agreement or (C) required to prevent a Material Adverse Effect on North Star or Keystone.
(bii) Sellers and In the Buyer Parties event that North Star or Keystone shall each timely givefail to obtain any third party consent described in subsection (b)(i) above, North Star or Keystone, as appropriate, shall use its reasonable best efforts, and shall cause take any such actions reasonably requested by the Other Party, to minimize any adverse effect on North Star, its subsidiaries and Keystone and their respective Subsidiariesbusinesses resulting, as applicableor which could reasonably be expected to result after the Effective Time, from the failure to give, any notices to third Persons and shall use, and cause their respective Subsidiaries, as applicable, to use, commercially reasonable efforts to obtain, in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letterobtain such consent.
(c) Sellers From the date of this Agreement until the Effective Time, each of North Star and Keystone shall promptly notify the Buyer Parties shall each give prompt notice Other Party of any pending or, to the Knowledge of such party, threatened action, proceeding or investigation by any Governmental Entity or any other of Person (i) any notice challenging or other communication from any Person alleging that the consent of such Person is or may be required seeking material damages in connection with the transactions contemplated hereby, (ii) any notice Merger or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby and (iv) the occurrence or nonoccurrence of any event that would be likely to cause any of the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party to consummate the transactions contemplated by this Agreement or (ii) seeking to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation restrain or warranty prohibit the consummation of the party giving such notice contained in this Agreement Merger or otherwise limit or affect the remedies available hereunder right of Keystone or, to the party receiving Knowledge of such noticefirst party, any subsidiary of Keystone to own or operate all or any portion of the businesses or assets of North Star, which in either case is reasonably likely to have a Material Adverse Effect on Keystone.
(d) Sellers Each party shall execute and deliver on and after the Buyer Parties each agree execution of this Agreement such further documents and instruments and take such other actions as the Other Party may reasonably request to cooperate implement and use commercially reasonable efforts to eliminate effect the antitrust concern(s) purposes of any Governmental Authority or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this Agreement.
(e) Sellers and the Buyer Parties each agree that the terms and provisions of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d).
Appears in 1 contract
Samples: Merger Agreement (Keystone Automotive Industries Inc)
Appropriate Action; Consents; Filings. The covenants (a) Sellers, the Company and Purchaser shall use their reasonable best efforts to (i) obtain from any Governmental Authorities any consents, licenses, permits, waivers, approvals, authorizations or orders required to be obtained by Purchaser, Sellers or the Company, or any of the Company’s respective Subsidiaries, respectively, or to avoid any action or proceeding by any Governmental Authority (including those in connection with the Antitrust Laws, the PL Approval, the Football Association Approval and Rule 18.2 of the WSL Rules) in connection with the authorization, execution and delivery of this Section 7.01 shall apply to Agreement and the parties hereto from consummation of the Transactions, and (ii) (A) as promptly as reasonably practicable after the date of this Agreement until the Closing:
(a) Sellers and the Buyer Parties shall each use commercially reasonable efforts to takehereof, or to cause to be taken, all actions and to do, or to cause to be done, all things, including the making of make all necessary filings filings, and thereafter make any other required submissions, that are necessarywith respect to this Agreement required under any applicable Antitrust Laws, proper or advisable (B) as promptly as reasonably practicable after the date hereof, make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement required under applicable Legal Requirements or otherwise are reasonably required to obtain, in the case of SellersPL Rules, the Authorizations set forth WSL Rules and the FA Rules, (C) as promptly as reasonably practicable, and in Schedule 3.05 any event within fifteen (15) Business Days after the date hereof, make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement and the Sellers' Disclosure Letter and, in the case consummation of the Buyer PartiesTransactions as required under section 178 of FSMA, and (D) as promptly as reasonably practicable after the Authorizations set forth in Schedule 4.03 date hereof, make all necessary filings, and thereafter make any other required submissions, with respect to the Buyer Parties' Disclosure Letterthis Agreement required under any other Applicable Law. Sellers and the Buyer Parties The parties shall cooperate with promptly furnish to each other in connection with the making of all such filings, including providing copies of all such documents to the nonfiling party's outside antitrust counsel prior to filing and, if requested, shall accept all reasonable additions, deletions or changes suggested in connection therewith. Sellers and the Buyer Parties shall furnish or cause to be furnished all information required for any application or other filing to be made under the rules and regulations of any Applicable Law in connection with obtaining the Transactions. Each party hereto shall promptly (but in any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to case within two Business Days) (i) make their initial HSR Act filings in respect inform the other if it becomes aware of any event, circumstance or condition that would be reasonably likely to prevent the obtaining of any consents, licenses, permits, waivers, approvals, authorizations or orders, or the avoidance of any actions or proceedings by any Governmental Authority required to be obtained or avoided pursuant to this transaction on or prior to the 21st day after the date hereof Section 7.01(a), and (ii) to comply as expeditiously as possible with all lawful requests notify the other party upon becoming aware of Governmental Authorities for additional information the obtaining of any such consents, licenses, permits, waivers, approvals, authorizations or orders, or avoidance of any such actions or proceedings and documents pursuant (subject to the HSR Act. Each redaction of the parties further agrees that, except with the prior consent of ICOconfidential information) provide copies or, in the case of the Buyer Partiesnon-written communications, details of any such communications with or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with from any Governmental Authority not relating to consummate the transactions contemplated by this Agreementsuch consents, licenses, permits, waivers, approvals authorizations or orders.
(b) Sellers and Without limiting the Buyer Parties shall generality of anything contained in this Section 7.01, each timely giveparty 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 Authority with respect to the Transactions, (ii) keep the other parties informed as to the status of any such request, inquiry, investigation, action or legal proceeding, (iii) promptly inform the other parties of any communication to or from any Governmental Authority regarding the approval of the Transactions, (iv) respond as promptly as practicable, and shall cause their respective Subsidiaries, as applicablein any event in accordance with any relevant time limit, to give, any notices additional requests for information received by any party from any Governmental Authority with respect to third Persons and shall usethe Transactions or filings contemplated by Section 7.01(a), and cause their respective Subsidiaries, as applicable, to use, commercially (v) use reasonable best efforts to obtain(A) obtain such approvals, in the case of Sellersconsents and clearances as may be necessary, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter proper or advisable under any Applicable Laws, including any applicable Antitrust Laws and (yB) if so requested prevent the entry in writing any action or proceeding brought by Parenta Governmental Authority or any other Person of any Governmental Order which would prohibit, any additional Third Party Consents set forth in Schedule 3.14 to make unlawful or delay the Sellers' Disclosure Letter, and, in the case consummation of the Buyer PartiesTransactions. Each party hereto shall provide, or procure the Third Person Consents set forth provision of, draft copies of all filings, submissions, material correspondence and material communications intended to be sent or communicated to any Governmental Authority or otherwise in Schedule 4.03 relation to the Buyer Parties' Disclosure Letter.
(cSection 7.01(a) Sellers and the Buyer Parties shall each give prompt notice to the other party and its legal advisers at such time as will allow the receiving party a reasonable opportunity to provide comments on such filings, submissions, correspondence and communications before they are submitted, sent or made and each party shall provide the other party with copies of (i) all such filings, submissions, material correspondence and material communications in the form finally submitted or sent and will consult and cooperate with the other parties and will consider in good faith the views of the other parties in connection with any notice filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or other communication from any Person alleging that the consent of such Person is proposal made or may be required submitted in connection with the transactions contemplated herebyTransactions. In addition, (ii) except as may be prohibited by any notice Governmental Authority or by Applicable Law, in connection with any such request, inquiry, investigation, action or legal proceeding, each party hereto will permit Representatives of the other communication from 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 Authority in connection with such request, inquiry, investigation, action or legal proceeding.
(c) Notwithstanding anything to the transactions contemplated herebycontrary in this Agreement, in connection with obtaining any approval or consent related to any Applicable Law, Purchaser shall cooperate in good faith with the Governmental Authorities and shall promptly take any and all action to complete lawfully the sale and purchase of the Sale Shares pursuant to this Agreement as soon as practicable (iiibut in any event prior to the End Date) and any Actions commenced and all action necessary or advisable to avoid, prevent, eliminate or remove the actual or threatened commencement of any Proceeding (including any Proceeding initiated by the PL or the FA) in writing againstany forum by or on behalf of any Governmental Authority or the issuance of any Governmental Order that would (or to obtain the agreement or consent of any Governmental Authority to the Transactions the absence of which would) delay, relating to or involving enjoin, prevent, restrain or otherwise affecting the Seller Companies or the Buyer Parties, that relate to prohibit the consummation of the transactions contemplated hereby Transactions, including (i) proffering and consenting and/or agreeing to a Governmental Order or other agreement providing for the sale, licensing or other disposition, or the holding separate of, or other limitations or restrictions on, or limiting any freedom of action with respect to, particular assets, categories of assets or lines of business held by the Group Companies and (ivii) promptly effecting the occurrence disposition, licensing or nonoccurrence holding separate of assets or lines of business held by the Group Companies, in each case, at such time as may be necessary to permit the lawful consummation of the sale and purchase of the Sale Shares on or prior to the End Date. The entry by any event that would Governmental Authority in any Proceeding of a Governmental Order permitting the consummation of the Transactions but requiring any assets or lines of business to be likely to cause sold, licensed or otherwise disposed or held separate thereafter (including the business and assets of the Group Companies, and excluding those of Purchaser and any of the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(cAffiliates) shall cure not, individually, or in the aggregate (together with one or more other changes, events, circumstances, developments or facts) be deemed a failure to satisfy any breach of any representation or warranty of the party giving such notice contained condition specified in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such noticeArticle VIII.
(d) Sellers Purchaser shall be solely responsible for and the Buyer Parties each agree to cooperate and use commercially reasonable efforts to eliminate the antitrust concern(s) of pay all filing costs incurred in connection with obtaining any Governmental Authority consents or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation approvals of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is type described in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this AgreementSection 7.01.
(e) Sellers and the Buyer Parties each agree that the terms and provisions of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d).
Appears in 1 contract
Appropriate Action; Consents; Filings. The covenants (a) Upon the terms and subject to the conditions set forth in this Section 7.01 shall apply to the parties hereto Purchase Agreement, from and after the date of this Purchase Agreement until the Closing:
(a) Closing Date, the Sellers and the Buyer Parties shall each use commercially their respective reasonable efforts to take, or to cause to be taken, all actions appropriate action, and to do, or to cause to be done, and to assist and cooperate with the other parties in doing all things, including the making of all necessary filings and thereafter any other required submissions, that are things necessary, proper or advisable under applicable Legal Requirements Law or otherwise are reasonably to consummate and make effective the transactions contemplated hereby 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 Purchase Agreement, and (ii) obtaining from any Governmental Entities any Licenses or consents required to obtainbe obtained or made by the Buyer or the Sellers in connection with the authorization, in execution and delivery of this Purchase Agreement and the case of Sellers, the Authorizations set forth in Schedule 3.05 to the Sellers' Disclosure Letter and, in the case consummation of the Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Lettertransactions contemplated hereby. The Sellers and the Buyer Parties shall cooperate with furnish to each other in connection with the making of all such filings, including providing copies of all such documents to the nonfiling party's outside antitrust counsel prior to filing and, if requested, shall accept all reasonable additions, deletions or changes suggested in connection therewith. Sellers and the Buyer Parties shall furnish or cause to be furnished 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 obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreementhereby.
(b) From the date of this Purchase Agreement until the Closing Date, the Sellers and the Buyer Parties shall each timely give, and shall cause their respective Subsidiaries, as applicable, to give, give any notices to third Persons and shall useparties, and cause their respective Subsidiaries, as applicable, to use, commercially reasonable efforts to obtain, in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter.
(c) Sellers and the Buyer Parties shall each give prompt notice use their reasonable efforts to the other of obtain any third party consents, approvals or waivers (i) any notice necessary, proper or other communication from any Person alleging that the consent of such Person is or may be required in connection with advisable to consummate the transactions contemplated hereby, (ii) disclosed or required to be disclosed in the Business Disclosure Schedule, or (iii) required to prevent a Business Material Adverse Effect from occurring prior to or after the Closing Date or a Buyer Material Adverse Effect from occurring prior to or after the Closing Date.
(c) From the date of this Purchase Agreement until the Closing Date, the Sellers and the Buyer shall promptly notify each other in writing of any notice pending or, to the Knowledge of the Sellers or other communication from the Buyer, threatened action, proceeding or investigation by any Governmental Authority Entity or any other Person (i) challenging or seeking damages in connection with the transactions contemplated hereby, hereby or (iiiii) any Actions commenced seeking to restrain or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to prohibit the consummation of the transactions contemplated hereby and (iv) the occurrence or nonoccurrence of any event that would be likely to cause any of the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement or otherwise limit the right of the Buyer or affect its Subsidiaries to own or operate all or any portion of the remedies available hereunder to Business or the party receiving such notice.
(d) Acquired Assets. The Sellers and the Buyer Parties each agree to cooperate shall cooperate, at their own cost and use commercially reasonable efforts to eliminate the antitrust concern(s) of expense, with each other in defending any Governmental Authority such action, proceeding or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactionsinvestigation, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt including seeking to have vacated, lifted, reversed any stay or overturned temporary restraining order entered by any Order (whether temporary, preliminary court or permanent) of any Court other Governmental Entity vacated or Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this Agreementreversed.
(e) Sellers and the Buyer Parties each agree that the terms and provisions of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d).
Appears in 1 contract
Samples: Asset Purchase Agreement (Icg Communications Inc /De/)
Appropriate Action; Consents; Filings. The covenants in this (a) Subject to Section 7.01 shall apply to 6.6, the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers and the Buyer Parties shall each will use commercially their respective reasonable best efforts to take, or consummate and make effective the transactions contemplated hereby and to cause the conditions to the Merger set forth in Article VII to be taken, all actions and to do, or to cause to be done, all thingssatisfied, including (i) the making obtaining and maintaining of all necessary filings actions or nonactions, consents and thereafter any approvals from Governmental Authorities or other required submissions, that are necessary, proper or advisable under applicable Legal Requirements or otherwise are reasonably required to obtain, in the case of Sellers, the Authorizations set forth in Schedule 3.05 to the Sellers' Disclosure Letter and, in the case of the Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers and the Buyer Parties shall cooperate with each other persons necessary in connection with the making of all such filings, including providing copies of all such documents to the nonfiling party's outside antitrust counsel prior to filing and, if requested, shall accept all reasonable additions, deletions or changes suggested in connection therewith. Sellers and the Buyer Parties shall furnish or cause to be furnished all information required for any application or other filing to be made in connection with obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.
(b) Sellers and the Buyer Parties shall each timely give, and shall cause their respective Subsidiaries, as applicable, to give, any notices to third Persons and shall use, and cause their respective Subsidiaries, as applicable, to use, commercially reasonable efforts to obtain, in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter.
(c) Sellers and the Buyer Parties shall each 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 transactions contemplated hereby, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby and (iv) the occurrence or nonoccurrence of any event that would be likely to cause any of the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party to consummate the 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 necessary to obtain an approval from, or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation avoid an action or warranty of the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such notice.
(d) Sellers and the Buyer Parties each agree to cooperate and use commercially reasonable efforts to eliminate the antitrust concern(s) of proceeding by, any Governmental Authority or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is other persons necessary in effect and that restricts, prevents or prohibits connection with the consummation of the transactions contemplated by this Agreement, (ii) the defending of any lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions 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 execution and delivery of any additional instruments necessary to consummate the Merger and 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) Business Days following the date that this Agreement is executed) make its respective filings, and thereafter make any other submissions required or advisable under the HSR Act or other Antitrust Law with respect to the transactions contemplated hereby.
(eb) Sellers Parent and Acquisition Sub agree to use their reasonable best efforts to take (and to cause their affiliates to take) promptly 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 foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction, so as to enable the parties to close the transactions contemplated by this Agreement as promptly as reasonably practicable, including committing to or effecting, by consent decree, hold separate orders, trust, or otherwise, the sale or disposition of such assets or businesses as are required to be divested 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 materially delaying the consummation of the Merger and the Buyer Parties each agree other transactions contemplated 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 or other foreign or U.S. Governmental Authority, (y) no decree, judgment, injunction, temporary restraining order or any other order in any suit or proceeding, and (z) no other matter relating to any Antitrust Laws would preclude consummation of the Merger by the Termination Date.
(c) Promptly following the date hereof, Parent and the Company shall cooperate with one another to determine any notices that need to be provided to third parties, and the Company shall use its reasonable best efforts to obtain any third party consents not covered by paragraphs (a) and (b) above that are necessary, proper or advisable to consummate the Merger as reasonably determined by Parent; provided that the terms Company and provisions its subsidiaries shall not seek any such consent of their respective customers without the prior consent of Parent, which consent shall not be unreasonably withheld, delayed or conditioned. Each of the Confidentiality Agreement are hereby incorporated herein by reference parties hereto will furnish to the other such necessary information and that reasonable assistance as the other may request in connection with the preparation of any governmental filings or submissions and will cooperate in responding to any inquiry from or material communication with a Governmental Authority, including immediately informing the other party of such terms inquiry or communication, consulting in advance before making any presentations or submissions to a Governmental Authority, and provisions supplying each other with copies of all material correspondence, filings or communications between either party and any Governmental Authority with respect to this Agreement. Notwithstanding the foregoing, obtaining any third party consents pursuant to this paragraph (c) shall continue in full force not be considered a condition to the obligations of the Parent and effect until Acquisition Sub to consummate the Closing, except as otherwise provided in Merger pursuant to Section 11.02(d)7.2.
Appears in 1 contract
Appropriate Action; Consents; Filings. The covenants in (a) Subject to the terms and conditions of this Section 7.01 shall apply to Agreement, the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers and the Buyer Parties shall each will use commercially their respective reasonable best efforts to take, or to cause to be taken, all actions consummate and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are necessary, proper or advisable under applicable Legal Requirements or otherwise are reasonably required to obtain, in the case of Sellers, the Authorizations set forth in Schedule 3.05 to the Sellers' Disclosure Letter and, in the case of the Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers and the Buyer Parties shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the nonfiling party's outside antitrust counsel prior to filing and, if requested, shall accept all reasonable additions, deletions or changes suggested in connection therewith. Sellers and the Buyer Parties shall furnish or cause to be furnished all information required for any application or other filing to be made in connection with obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.
(b) Sellers and the Buyer Parties shall each timely give, and shall cause their respective Subsidiaries, as applicable, to give, any notices to third Persons and shall use, and cause their respective Subsidiaries, as applicable, to use, commercially reasonable efforts to obtain, in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter.
(c) Sellers and the Buyer Parties shall each 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 transactions contemplated hereby, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby and (iv) the occurrence or nonoccurrence of any event that would be likely to cause any of the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party to consummate effective the transactions contemplated by this Agreement or and to fulfill their respective obligations cause the conditions to the Merger set forth herein. No delivery of any notice pursuant in Article VI to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such notice.
(d) Sellers and the Buyer Parties each agree to cooperate and use commercially be satisfied, including using reasonable best efforts to eliminate accomplish the antitrust concern(sfollowing: (i) the obtaining of any all necessary actions or non-actions, consents and approvals from Governmental Authority Authorities or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is other Persons necessary in effect and that restricts, prevents or prohibits connection with the consummation of the transactions contemplated by this Agreement, including the Merger, and (ii) 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 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. 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 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 the contrary contained in this Agreement, neither Parent nor the Company or any of their respective Affiliates shall be required to, and 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 transactions contemplated by this Agreement (it being understood that this sentence does not apply to the actions required by Section 5.3(d)).
(eb) Sellers In connection with and without limiting the Buyer Parties efforts referenced in this Section 5.3, each agree that the terms and provisions of the Confidentiality 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 are hereby incorporated herein 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 party 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 reference one party to another pursuant to this Section 5.3(b) may be redacted (A) to remove references concerning the valuation of the Company, (B) as necessary to comply with contractual arrangements, and (C) 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 parties hereto will give reasonable notice to and consult with the other party in advance of any meeting or substantive telephone call or conference with any Governmental Authority, or in connection with any such Proceeding, with any other Person, and to the extent permitted by the Governmental Authority, give the other party the opportunity to attend and participate in such meeting, telephone call or conference.
(c) The parties shall consult with each other with respect to obtaining all permits and Consents necessary to consummate the transactions contemplated by this Agreement, including the Merger.
(d) Notwithstanding anything in this Agreement to the contrary, none of Parent or any of its Affiliates shall be required to enter into one or more agreements prior to the Closing with respect to any transaction to divest, hold separate or otherwise take any action that such terms and provisions shall continue in full force and effect until limits the Parent’s or any of its Affiliates’ (including, following the Closing, except as the Company’s or any of its Subsidiaries’) freedom of action, ownership or control with respect to, or their ability to retain or hold, directly or indirectly, any of their respective businesses, assets, equity interests, product lines or properties (each, a “Divestiture Action”) or take any Divestiture Action or otherwise provided agree to or proffer to sell, divest, hold separate, lease, license, transfer, dispose of or otherwise encumber or impair or take any other action with respect to Parent’s or any of its Affiliates’ ability to own or operate any assets, properties, businesses or product lines of Parent or any of its Affiliates (including, following the Closing, any assets, properties, businesses or product lines of the Company or its Subsidiaries); and none of Parent or any of its Affiliates shall be required to take any action contemplated in this Section 11.02(d5.3(d) 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 do so by Parent, commit to or effect any action contemplated in this Section 5.3(d).
Appears in 1 contract
Samples: Merger Agreement (Corindus Vascular Robotics, Inc.)
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers The Company, the Shareholders and the Buyer Parties Acquiror shall each use commercially reasonable best efforts to (i) take, or to cause to be taken, all actions appropriate action, and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are things necessary, proper or advisable under applicable Legal Requirements Law or otherwise are reasonably to consummate and make effective the transactions contemplated by this Agreement as promptly as practicable, (ii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations or orders required to obtainbe obtained or made by Acquiror or the Company in connection with the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated in this Agreement, and (iii) make all necessary notifications and filings, and thereafter make any other required submissions, with respect to this Agreement and the case of SellersMerger required under the Securities Act, the Authorizations set forth in Schedule 3.05 to the Sellers' Disclosure Letter andExchange Act, in the case of the Buyer Partiesany other applicable federal securities Laws or Blue Sky Laws, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers HSR Act and any other applicable Law; provided that, Acquiror and the Buyer Parties Company shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the nonfiling party's outside antitrust counsel non-filing party and its advisors prior to filing and, if requested, shall to accept all reasonable additions, deletions or changes suggested in connection therewith. Sellers The Company and the Buyer Parties Acquiror shall furnish or cause to be furnished 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 obtaining any such Authorizationsthe transactions contemplated by this Agreement. In particular, The Company and each of the Buyer Parties Shareholders hereby agree to file their respective pre-merger notification and Sellers agrees to use commercially reasonable efforts to (i) make their initial report forms as required under the HSR Act filings in respect of this transaction on or prior to the 21st second business day after the date hereof and to request early termination of their respective filings.
(iii) The Company, the Shareholders and Acquiror shall give any notices to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information third parties, and documents pursuant use reasonable best efforts to the HSR Act. Each of the parties further agrees thatobtain any third party consents, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act necessary, proper or (B) enter into any voluntary agreement with any Governmental Authority not advisable to consummate the transactions contemplated by in this Agreement, (B) disclosed or required to be disclosed in the Company Disclosure Schedule, or (C) required to prevent a Company Material Adverse Effect or an Acquiror Material Adverse Effect from occurring prior to or after the Effective Time.
(bii) Sellers and the Buyer Parties If a party to this Agreement fails to obtain any third party consent described in subsection (b)(i) above, such party shall each timely giveuse reasonable best efforts, and shall cause take any such actions reasonably requested by the other party, to minimize any adverse effect upon the Company and Acquiror and their respective Subsidiariesbusinesses resulting, as applicableor which could reasonably be expected to result after the Effective Time, from the failure to give, any notices to third Persons and shall use, and cause their respective Subsidiaries, as applicable, to use, commercially reasonable efforts to obtain, in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letterobtain such consent.
(c) Sellers and From the Buyer Parties date of this Agreement until the Effective Time, the Company shall each give prompt notice promptly notify Acquiror in writing of any pending or, to the knowledge of the Company or the Shareholders, threatened action, proceeding or investigation by any Governmental Entity or any other of person (i) any notice challenging or other communication from any Person alleging that the consent of such Person is or may be required seeking material damages in connection with the transactions contemplated hereby, 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 notice portion of the businesses or other communication from assets of the Company.
(d) From the date of this Agreement until the Effective Time, the Acquiror shall promptly notify the Company in writing of any pending or, to the knowledge of Acquiror, threatened action, proceeding or investigation by any Governmental Authority Entity or any other person (i) challenging or seeking material damages in connection with the transactions contemplated hereby, Merger or (iiiii) any Actions commenced seeking to restrain or threatened in writing against, relating to or involving prohibit the consummation of the Merger or otherwise affecting limit the Seller Companies right of the Acquiror or its Subsidiaries to own or operate all or any portion of the Buyer Partiesbusiness or assets of the Company.
(e) The parties hereto shall do and perform or cause to be done and performed all such further actions and things and shall execute and deliver all such other agreements, that relate certificates, instruments or documents as any other party hereby may reasonably request in order to carry out the intent and purposes of this Agreement and the consummation of the transactions contemplated hereby and (iv) hereby, including, without limitation, negotiating in good faith the occurrence or nonoccurrence of any event that would be likely to cause any of lease agreement contemplated in the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations closing condition set forth herein. No delivery of any notice pursuant to clause (ivin SECTION 9.01(A)(IV) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such noticehereof.
(d) Sellers and the Buyer Parties each agree to cooperate and use commercially reasonable efforts to eliminate the antitrust concern(s) of any Governmental Authority or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this Agreement.
(e) Sellers and the Buyer Parties each agree that the terms and provisions of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d).
Appears in 1 contract
Samples: Merger Agreement (Vincam Group Inc)
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers Target, Acquiror and the Buyer Parties Acquisition Sub shall each use their commercially reasonable efforts to (i) take, or to cause to be taken, all actions appropriate action, and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are things necessary, proper or advisable under applicable Legal Requirements Laws or required to be taken by any Governmental Authority or otherwise are reasonably to consummate and make effective the Transactions as promptly as practicable, (ii) obtain from all applicable Governmental Authorities all consents, licenses, permits, waivers, approvals, authorizations or orders legally required to obtainbe obtained or made by Acquiror or Target or any of their Subsidiaries in connection with the authorization, in execution and delivery of this Agreement and the case consummation of Sellersthe Transactions, including, without limitation, the Authorizations set forth in Schedule 3.05 Merger and the Offer, and (iii) as promptly as practicable, make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement, the Sellers' Disclosure Letter andMerger and the Offer required under (A) the Securities Act, in the case Exchange Act, and any other applicable federal or state securities Laws, (B) the rules and regulations of the Buyer PartiesNasdaq National Market or the American Stock Exchange, (C) Delaware Law, (D) the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers HSR Act and the Buyer Parties any related governmental request thereunder, and (E) all other applicable Laws; provided that Acquiror and Target shall cooperate fully with each other in connection with the making of all such filings, including providing copies of all such documents to the nonfiling party's outside antitrust counsel non-filing party and its advisors prior to filing and, if requested, shall accept accepting all reasonable additions, deletions or changes suggested in connection therewith. Sellers Target and the Buyer Parties Acquiror shall use commercially reasonable efforts to furnish or cause to be furnished each other all information required for any each application or other filing to be made pursuant to the rules and regulations of all applicable Laws (including all information required to be included in the Proxy Statement and the Offering Documents) in connection with obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to Transactions.
(i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, Acquiror and Target shall give (or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.
(b) Sellers and the Buyer Parties shall each timely give, and shall cause their respective Subsidiaries, as applicable, Subsidiaries to give, ) any notices to third Persons parties, and shall use, and cause their respective Subsidiaries, as applicable, Subsidiaries to use, their commercially reasonable efforts to obtainobtain any third party consents, (A) legally necessary to consummate the Transactions, (B) disclosed or required to be disclosed in the case of SellersTarget Disclosure Schedule or the Acquiror Disclosure Schedule or (C) required to prevent a Material Adverse Effect on Acquiror or Target from occurring prior to or after the Effective Time; provided, (x) the Third Person Consents set forth however, that "commercially reasonable efforts" as used in Schedule 3.05 this Agreement shall not require any party to the Sellers' Disclosure Letter and (y) if so requested in writing by Parentundertake extraordinary or unreasonable measures to obtain any approvals or consents, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letterincluding, and, in the case of the Buyer Partieswithout limitation, the Third Person Consents set forth initiation or prosecution of legal proceedings. Within 20 business days after the date hereof, Target will deliver landlord estoppel certificates in Schedule 4.03 form reasonably satisfactory to Acquiror.
(ii) If Acquiror or Target fails to obtain any third party consent described in subsection (b)(i) above, then it shall use its commercially reasonable efforts, and shall take any actions reasonably requested by the Buyer Parties' Disclosure Letterother party, to minimize any adverse effect upon Target and Acquiror, their respective Subsidiaries, and their respective businesses resulting, or which could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(c) Sellers From the date of this Agreement until the earlier of (x) the termination of this Agreement and (y) the Buyer Parties Effective Time, each party shall each give prompt notice promptly notify the other party of any actual or, to the knowledge of the first party, threatened action, proceeding or investigation by or before any Governmental Authority or any other of Person (i) any notice challenging or other communication from any Person alleging that the consent of such Person is or may be required seeking material damages in connection with the transactions contemplated herebyTransactions, including the Merger and the Offer, or (ii) any notice seeking to restrain or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to prohibit the consummation of the transactions contemplated hereby and (iv) Transactions or otherwise limit the occurrence right of Acquiror to own or nonoccurrence of operate all or any event that would be likely to cause any portion of the Closing Conditions businesses or assets of the other party not to be satisfied or of any other change that Target, which in either case is reasonably likely to cause have a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder Material Adverse Effect on Target prior to the party receiving such noticeEffective Time, or a Material Adverse Effect on Acquiror (including the Surviving Corporation) after the Effective Time.
(d) Sellers and the Buyer Parties each agree to cooperate and use commercially reasonable efforts to eliminate the antitrust concern(s) of any Governmental Authority or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this Agreement.
(e) Sellers and the Buyer Parties each agree that the terms and provisions of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d).
Appears in 1 contract
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to the parties hereto from Each Merging Company and after the date of this Agreement until the Closingits Shareholders will use all reasonable efforts to:
(ai) Sellers and the Buyer Parties shall each use commercially reasonable efforts to take, or to cause to be taken, all actions appropriate action, and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are things necessary, proper or advisable under applicable Legal Requirements law to consummate and make effective the transactions contemplated by this Agreement;
(ii) obtain all consents, licenses, permits, waivers, approvals, authorizations or otherwise are reasonably orders required under law (including, without limitation, all foreign and domestic federal, state and local governmental and regulatory rulings and approvals and from parties to obtaincontracts) required in connection with the authorization, in execution and delivery of this Agreement and the case consummation by them of Sellersthe transactions contemplated by this Agreement, including, without limitation, the Authorizations set forth in Schedule 3.05 Mergers; and
(iii) make all necessary filings, and thereafter make any other required submissions, with respect to the Sellers' Disclosure Letter and, in the case of the Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers this Agreement and the Buyer Parties shall Mergers required under (A) the Securities Act and the Exchange Act and the rules and regulations thereunder, and any other applicable federal or state securities laws, (B) the Hart-Xxxxx-Xxxxxx Xxx (if applicable), and (C) any other applicable law. The Merging Companies and the Shareholders will cooperate with each other in connection with the making of all such filings, including providing copies of all such documents upon request to the nonfiling party's outside antitrust counsel non-filing parties and their advisors prior to filing and, if requested, shall to accept all reasonable additions, deletions or changes suggested in connection therewithwith such filings. Sellers Each Merging Company and the Buyer Parties shall its Shareholders will furnish or cause to be furnished 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 Statements and the Registration Statement) in connection with obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.
(b) Sellers . If at any time after the Effective Time any further action is necessary or desirable to carry out the purposes of this Agreement, then the proper officers and the Buyer Parties shall directors of each timely give, and shall cause their respective Subsidiaries, as applicable, party to give, any notices to third Persons and shall use, and cause their respective Subsidiaries, as applicable, to use, commercially this Agreement will use all reasonable efforts to obtain, in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Lettertake all such necessary action.
(c) Sellers and the Buyer Parties shall each 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 transactions contemplated hereby, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby and (iv) the occurrence or nonoccurrence of any event that would be likely to cause any of the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such notice.
(d) Sellers and the Buyer Parties each agree to cooperate and use commercially reasonable efforts to eliminate the antitrust concern(s) of any Governmental Authority or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this Agreement.
(e) Sellers and the Buyer Parties each agree that the terms and provisions of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d).
Appears in 1 contract
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply Each of Tasty Baking, Parent and Purchaser has agreed to the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers and the Buyer Parties shall each use commercially their respective reasonable best efforts to take, or to cause to be taken, all actions consummate and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are necessary, proper or advisable under applicable Legal Requirements or otherwise are reasonably required to obtain, in the case of Sellers, the Authorizations set forth in Schedule 3.05 to the Sellers' Disclosure Letter and, in the case of the Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers and the Buyer Parties shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the nonfiling party's outside antitrust counsel prior to filing and, if requested, shall accept all reasonable additions, deletions or changes suggested in connection therewith. Sellers and the Buyer Parties shall furnish or cause to be furnished all information required for any application or other filing to be made in connection with obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate effective the transactions contemplated by this Agreement.
(b) Sellers the Merger Agreement and to cause the conditions to the Offer and the Buyer Parties shall each timely giveMerger to be satisfied, and shall cause their respective Subsidiaries, as applicable, to give, any notices to third Persons and shall use, and cause their respective Subsidiaries, as applicable, to use, commercially reasonable efforts to obtain, in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter.
(c) Sellers and the Buyer Parties shall each give prompt notice to the other of including (i) any notice or other communication obtaining all necessary permits, waivers, consents, approvals and actions from any Person alleging that the consent of such Person is or governmental authorities, making all necessary registrations and filings and taking all steps as may be required in connection with the transactions contemplated herebynecessary to obtain an approval or waiver from, or to avoid an action or proceeding by, any governmental authority, (ii) any notice obtaining all necessary and material consents or other communication waivers from any Governmental Authority in connection with the transactions contemplated herebythird parties, (iii) contesting and resisting any Actions commenced legal action or threatened in writing againstproceeding challenging the Offer, relating to the Merger or involving or otherwise affecting any other transaction contemplated by the Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby Merger Agreement and (iv) executing and delivering any additional instruments necessary to consummate the occurrence or nonoccurrence of any event that would be likely Offer and the Merger and to cause any fully carry out the purposes of the Closing Conditions Merger Agreement. Tasty Baking, Parent and Purchaser each agreed to promptly (and in no event later than 10 business days following the date of the other party Merger Agreement) make and not to be satisfied or of withdraw their respective filings, and thereafter make any other change that is reasonably likely required submissions under, the HSR Act with respect to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement or otherwise limit or affect Merger Agreement, including the remedies available hereunder to Offer, the party receiving such notice.
(d) Sellers Merger and the Buyer Parties each agree Top-Up Option. Public Announcements. Parent, Purchaser and Tasty Baking have agreed not to cooperate and use commercially reasonable efforts to eliminate make any press release or other public statement regarding the antitrust concern(s) of any Governmental Authority or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactions, unless Sellers and Buyers both agree otherwiseOffer, the Sellers Merger and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation of the other transactions contemplated by this Agreement.
(e) Sellers and the Buyer Parties each agree that Merger Agreement without the terms and provisions prior consultation of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until the Closingother, except as otherwise provided in Section 11.02(d)required by applicable law, court process or by obligations pursuant to any listing agreement with any national securities exchange. If a party is required to make a press release or announcement, it agreed to use its reasonable best efforts to allow the other party reasonable time to review and comment on the release or announcement prior to its issuance.
Appears in 1 contract
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply (i) Subject to the parties hereto from terms and after the date conditions of this Agreement until and except to the Closing:
extent that (ax) Sellers the Board of Directors of WABCO shall have withdrawn or modified its approval or recommendation of this Agreement or the Merger or (y) the Board of Directors of MotivePower shall have withdrawn or modified its approval or recommendation of this Agreement or the Merger, in each case as permitted by Section 5.1(b), MotivePower and the Buyer Parties WABCO shall each use commercially their reasonable best efforts to (A) take, or to cause to be taken, all actions actions, and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are necessary, proper or advisable under applicable Legal Requirements laws to consummate the Merger and the other transactions contemplated by this Agreement as promptly as practicable, (B) obtain from any Governmental Entity any consents, licenses, permits, waivers, approvals, authorizations or otherwise are reasonably orders required to obtainbe obtained or made by MotivePower and WABCO or any 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 case authorization, execution and delivery of Sellersthis Agreement and the consummation of the transactions contemplated herein, and (C) make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement and the Merger required under the Securities Act, the Authorizations set forth in Schedule 3.05 to the Sellers' Disclosure Letter andExchange Act and any other applicable law; provided, in the case of the Buyer Partieshowever, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers that MotivePower and the Buyer Parties WABCO shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the nonfiling party's outside antitrust counsel non-filing party and its advisors prior to filing and, if requested, shall accept accepting all reasonable additions, deletions or changes suggested in connection therewith. Sellers MotivePower and the Buyer Parties WABCO shall furnish or cause to be furnished 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 obtaining any such Authorizationsthe transactions contemplated by this Agreement. In particular, each of Subject to the Buyer Parties terms and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect conditions of this transaction on or prior Agreement and except to the 21st day after extent that (x) the date hereof and Board of Directors of WABCO shall have withdrawn or modified its approval or recommendation of this Agreement or the Merger or (iiy) to comply as expeditiously as possible with all lawful requests the Board of Governmental Authorities for additional information and documents pursuant to Directors of MotivePower shall have withdrawn or modified its approval or recommendation of this Agreement or the HSR Act. Each of the parties further agrees that, except with the prior consent of ICOMerger, in the each case of the Buyer Partiesas permitted by Section 5.1(b), MotivePower and WABCO shall not take any action, or Parentrefrain from taking any action, in the case effect of Sellers, it will not (A) extend any waiting period under which would be to delay or impede the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not ability of MotivePower and WABCO to consummate the transactions contemplated by this Agreement, unless in such party's reasonable judgment, taking such action is consistent with achieving the ultimate objective of consummating the Merger.
(ii) Notwithstanding any other provision of this Agreement and except as provided in Section 5.6(b), in connection with seeking any approval of a Governmental Entity relating to this Agreement or the consummation of the transactions contemplated hereby, without the other party's prior written consent, neither party shall, and neither party shall be required to, commit to any divestiture transaction, agree to sell or hold separate, before or after the Effective Time, any of MotivePower's or WABCO's businesses, product lines, properties or assets, or agree to any changes or restrictions in the operation of such businesses, product lines, properties or assets, in any such case if such divestiture or such restrictions would, individually or in the aggregate, be reasonably expected to have a material adverse effect on the financial condition or results of operations of MotivePower and its Subsidiaries, taken as a whole, after giving effect to the Merger.
(b) Sellers In furtherance and not in limitation of the Buyer Parties foregoing, the parties shall each timely use reasonable best efforts to resolve such objections, if any, as may be asserted with respect to the transactions contemplated by this Agreement under any antitrust, competition or trade regulatory laws, rules or regulations of any domestic or foreign government or governmental authority or any multinational authority ("Antitrust Laws"). If any suit is instituted challenging any of the transactions contemplated by this Agreement as violative of any Antitrust Law, the parties shall take such action (including without limitation, agreeing to hold separate or to divest any of the businesses, product lines or assets of WABCO or its Subsidiaries or of MotivePower or its Subsidiaries (a "Business Unit") (but only if the Business Units required to be held separate or divested do not in the aggregate have a fair market value of more than $25,000,000 or revenues for the most recently completed 12 months of more than $25,000,000) as may be required (a) by the applicable government or governmental or multinational authority (including, without limitation, the Antitrust Division of the United States Department of Justice or the Federal Trade Commission) in order to resolve such objections as such government or authority may have to such transactions under such Antitrust Law, or (b) by any domestic or foreign court or similar tribunal, in any suit brought by a private party or governmental or multinational authority challenging the transactions contemplated by this Agreement as violative of any Antitrust Law, in order to avoid the entry of, or to effect the dissolution of, any injunction, temporary restraining order or other order that has the effect of preventing the consummation of any of such transactions. The entry by a court, in any suit brought by a private party or governmental or multinational authority challenging the transactions contemplated by this Agreement as violative of any Antitrust Law, of an order or decree permitting the transactions contemplated by this Agreement, but requiring that any Business Unit of WABCO or its Subsidiaries or MotivePower or its Subsidiaries be divested or held separate (but only if such Business Units required to be held separate or divested do not in the aggregate have a fair market value of more than $25,000,000 or revenues for the most recently completed 12 months of more than $25,000,000), or that would otherwise limit the Surviving Corporation's freedom of action with respect to, or its ability to retain, the Subsidiaries, other assets or businesses of the Constituent Corporations, shall not be deemed a failure to satisfy the conditions specified in Section 6.1(b) or Section 6.1(c) hereof.
(i) MotivePower and WABCO shall give, and or shall cause their respective Subsidiaries, as applicable, Subsidiaries to give, any notices to third Persons parties, and shall use, and cause their respective Subsidiaries, as applicable, Subsidiaries to use, commercially their reasonable best efforts to obtainobtain any third party consents (A) necessary, proper or advisable in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter.
(c) Sellers and the Buyer Parties shall each 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 transactions contemplated hereby, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby and (iv) the occurrence or nonoccurrence of any event that would be likely to cause any of the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party order to consummate the transactions contemplated by this Agreement or (B) required to fulfill their respective obligations set forth herein. No delivery of any notice pursuant prevent a Material Adverse Effect on MotivePower or a Material Adverse Effect on WABCO from occurring prior to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of after the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such noticeEffective Time.
(dii) Sellers and In the Buyer Parties each agree event that either party shall fail to cooperate and use commercially reasonable efforts to eliminate the antitrust concern(s) of obtain any Governmental Authority or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this Agreement.
(e) Sellers and the Buyer Parties each agree that the terms and provisions of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided third party consent described in Section 11.02(d)5.6(b)(i) above, such party shall use its reasonable best efforts, and shall take any such actions reasonably requested by the other party hereto, to minimize any adverse effect upon MotivePower and WABCO, their respective Subsidiaries, and their respective businesses resulting, or which could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Motivepower Industries Inc)
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to From the parties hereto from and after the date of this Agreement Execution Date until the Closing:
(a) Sellers Seller and the Buyer Parties shall each use all commercially reasonable efforts (i) to take, or to cause to be taken, all actions actions, and to do, or to cause to be done, all thingsthings that, including in either case, are necessary, proper, or advisable under applicable Law or otherwise to consummate and make effective the making transactions contemplated by this Agreement, (ii) to obtain from the relevant Governmental Authorities all Authorizations required to be obtained by Seller or Buyer in connection with the authorization, execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby, and (iii) to make all necessary filings filings, and thereafter to make any other required submissions, that are necessary, proper or advisable under applicable Legal Requirements or otherwise are reasonably required with respect to obtain, in the case of Sellers, the Authorizations set forth in Schedule 3.05 to the Sellers' Disclosure Letter and, in the case of the Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers this Agreement and the transactions contemplated hereby required under any applicable Law. Seller and Buyer Parties shall cooperate with each other in connection with the making of all such filings, including through, among other means, providing copies of all such documents to the nonfiling party's outside antitrust counsel party and its advisors prior to filing and, if requested, shall accept accepting all reasonable additions, deletions deletions, or changes suggested in connection therewith. Sellers Seller and the Buyer Parties shall furnish or cause to be furnished all information required for any application or other filing to be made pursuant to any applicable Law in connection with obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement. Notwithstanding the foregoing, upon reasonable, prior notice to Seller, and after advising Seller concerning the subject matter of the proposed negotiations, Buyer may negotiate directly with the Government of Aruba and all Aruban Governmental Authorities regarding the transactions contemplated hereby, and in connection with such negotiations (except as described in this sentence), Buyer is not required to comply with the preceding two sentences.
(b) Sellers Without limiting the generality of Section 6.2(a), if Seller and Buyer determine that notifications under the HSR Act are required in connection with this Agreement, Seller and Buyer shall each use all commercially reasonable efforts to cause its ultimate parent entity to file, as soon as practicable following the execution of this Agreement, notifications under the HSR Act in connection with the transactions contemplated hereby and to respond as promptly as practicable to any inquiries received from the Federal Trade Commission or the Antitrust Division of the Department of Justice for additional information or documentation and to respond as promptly as practicable to all inquiries and requests received from any other Governmental Authority in connection with antitrust matters relating to the transactions contemplated by this Agreement. Each of Seller and Buyer shall provide to the other a copy of such filing materials under the HSR Act to the other prior to making such filing and the parties hereto shall confer on the matters set forth therein.
(c) Seller and Buyer Parties shall each timely give, and shall give or cause their respective Subsidiaries, as applicable, to give, any be given all notices to third Persons and shall use, and cause their respective Subsidiaries, as applicable, to use, use all commercially reasonable efforts to obtain, in the case of Sellers, (x) the obtain all Third Person Consents set forth (i) required under any Material Contract in Schedule 3.05 connection with the consummation of the transactions contemplated hereby or (ii) otherwise required to prevent a Material Adverse Effect with respect to the Sellers' Disclosure Letter Business or the Company and (y) if so requested in writing by Parentthe Transferred Subsidiaries, any additional Third Party Consents set forth in Schedule 3.14 taken as a whole, from occurring prior to or after the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure LetterClosing.
(cd) Sellers Seller and the Buyer Parties shall each give prompt notice to the other of the receipt of any written notice or other written communication (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 transactions contemplated hereby, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated herebyhereby (including a general summary of communications between Buyer or Buyer's Affiliates and any Aruban Governmental Authority consistent with Buyer's obligations pursuant to Section 6.2(a)), (iii) from any Actions commenced Governmental Authority or threatened in writing other Person regarding the initiation or threat of initiation of any claims, actions, suits, proceedings, arbitrations, or investigations against, relating to to, or involving or otherwise affecting the Company, Buyer, or Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby hereby, and (iv) from any Person regarding the occurrence or nonoccurrence of any event that the occurrence or nonoccurrence of which would be reasonably likely (A) to cause any of condition to the Closing Conditions obligations of the other party to consummate the transactions contemplated hereby not to be satisfied or of any other change that is reasonably likely satisfied, (B) to cause a breach of the representations, warranties, or covenants of such party under this Agreement Agreement, or (C) to delay or impede the ability of either party Buyer or Seller, respectively, to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c6.2(d) shall cure any breach of any representation or warranty of the party hereto giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party hereto receiving such notice.
(de) Sellers Buyer and the Buyer Parties Seller each agree to cooperate and to use all commercially reasonable efforts vigorously to eliminate the antitrust concern(s) of contest and to resist any Governmental Authority or Court. If there is no commercially reasonable solution to an administrative action, including legislative, administrative, or judicial challenge to the consummation of the transactionsaction, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed reversed, or overturned any Order order (whether temporary, preliminary preliminary, or permanent) of any Court court or other Governmental Authority that is in effect and that restricts, prevents prevents, or prohibits the consummation of the transactions contemplated by this Agreement, including the vigorous pursuit of all available avenues of administrative and judicial appeal and all available legislative action. Each of Buyer and Seller shall take, or cause to be taken, any and all actions, other than the disposition of assets or the withdrawal from doing business in particular jurisdictions, required by any Governmental Authority as a condition to the granting of any Authorization necessary for the consummation of the transactions contemplated hereby or as may be required to avoid, lift, vacate, or reverse any legislative, administrative, or judicial action that would otherwise cause any Closing Condition not to be satisfied.
(ef) Sellers El Paso and the Buyer Parties each agree that the terms and provisions other Affiliates of the Confidentiality Combined Companies, including El Paso CGP (together, the "El Paso Guarantors"), have provided support to the Combined Companies pursuant to certain guarantees and related agreements, including those guaranties set forth in Section 6.2(f) of the Disclosure Schedule (the "Support Obligations"). Buyer and its Affiliates shall use best efforts to effect the complete release of the El Paso Guarantors from all of the obligations arising from and related to the Support Obligations in a manner reasonably satisfactory to the El Paso Guarantors, including by means of substitution of a guaranty or other undertaking by Valero Energy Corporation or other Affiliate of Buyer for the Support Obligations, a letter of credit, an escrow of funds, posting a bond, or other arrangements. If the El Paso Guarantors have not been so released from the Support Obligations on or before the Closing Date, then the unreleased Support Obligations shall be included as "Unreleased Support Obligations" under, and as defined in, the Indemnification Agreement. If Valero is unsuccessful in obtaining the complete release of El Paso CGP from all of the obligations under the Refinery Agreement Guaranty prior to Closing, then until the El Paso CGP is so released, neither Buyer nor any Affiliate of Buyer:
(i) shall transfer any interest in the Downtown Parcel or any rights that are hereby incorporated herein currently held by reference CARC therein, either directly or indirectly, by the transfer of such assets, or by the transfer of an interest in a direct or indirect owner of such assets to the Government of Aruba or to any other Governmental Authority of Aruba; or
(ii) amend, or take any action (other than the transactions contemplated by this Agreement), that would have the effect of amending, the Refinery Agreement; or
(iii) sell the refinery, including the delayed petroleum xxxxx assets or any material portion thereof, or transfer any direct or indirect ownership interest in any owner of such assets to any Person that is not a wholly owned Subsidiary of Valero Energy Corporation; or
(iv) permanently cease operations or cease refining operations for thirty-six consecutive calendar months at the refinery. This Section 6.2(f) shall survive the Closing and that such terms and provisions shall continue remain in full force and effect until the complete release of El Paso CGP from all of the obligations under the Refinery Agreement Guaranty.
(g) Promptly after the Execution Date, Seller will cause CARC to notify Vitol of CARC's election to terminate the Vitol Agreement.
(i) Buyer and Seller shall cooperate with each other and shall use commercially reasonable efforts to persuade Vitol to terminate the Vitol Agreement on or before Closing; provided that neither Buyer nor Seller shall be obligated to make any payment to Vitol to induce Vitol to agree to such termination.
(ii) If the Vitol Agreement is terminated on or before Closing, except CARC (if such termination is prior to Closing) or Buyer (if such termination is on the Closing Date) shall purchase Vitol's products inventory at the price negotiated with Vitol in connection with the termination of the Vitol Agreement. If CARC purchases Vitol's products inventory, then such inventory shall be part of the inventory included in Current Assets for purposes of calculating Net Working Capital (and the value thereof shall be deemed to be the price paid for such inventory, plus interest thereon at the Applicable Rate from the date purchased until the Closing Date); provided, however, that if CARC purchases Vitol's Tank Bottoms (as otherwise provided defined in the Vitol Agreement) pursuant to Section 11.02(d15.3 of the Vitol Agreement, the value of the products inventory comprising the Tank Bottoms shall be determined using the pricing schedule attached as Exhibit D hereto.
(iii) If the Vitol Agreement is not terminated on or before the Closing Date, Seller and Buyer shall enter into an agreement on the Closing Date relating to Seller's make-whole payments to Buyer relating to the Vitol Agreement's pricing terms. Such make-whole agreement shall incorporate the terms set forth on Exhibit F attached hereto.
(iv) Regardless of whether the Vitol Agreement is terminated on or before Closing, for purposes of calculating Net Working Capital, (a) any outstanding amounts payable by Vitol to CARC under the Vitol Agreement as of the Closing Date shall be included in Current Assets and (b) any outstanding amounts payable by CARC to Vitol under the Vitol Agreement as of the Closing Date shall be included in Current Liabilities.
(v) Prior to the Closing Date, Buyer will have the right to negotiate directly with Vitol for the purchase of Vitol's product inventory.
(h) Seller and Buyer shall negotiate in good faith to agree upon the terms of a Transition Services Agreement to be executed and delivered by El Paso Merchant Energy - Petroleum Company and Buyer, which shall include the provision by El Paso Merchant Energy - Petroleum Company of services, as generally described in the form of Transition Services Agreement attached hereto as Exhibit E.
(i) In connection with the termination of the Vitol Agreement, Buyer and Seller shall use commercially reasonable efforts to obtain Marathon's consent to the assignment of the rights of EPME under the Marathon Agreement to CARC. If such consent is not obtained effective on the date of termination of the Vitol Agreement, then Seller will cause CARC (if the Vitol Agreement is terminated prior to the Closing Date), or Buyer will cause CARC (if the Vitol Agreement is terminated after the Closing Date), to enter into an agreement with EPME, the effect of which is to put EPME in the same position as if EPME had assigned the Marathon Agreement to CARC.
(j) In connection with termination of the Vitol Agreement, Buyer and Seller shall use commercially reasonable efforts to obtain AirBP's consent to the assignment of the rights of EPME under the BP Agreement to CARC. If such consent is not obtained effective on the date of termination of the Vitol Agreement, then Seller will cause CARC (if the Vitol Agreement is terminated prior to the Closing Date), or Buyer will cause CARC (if the Vitol Agreement is terminated after the Closing Date), to enter into an agreement with EPME, the effect of which is to put EPME in the same position as if EPME had assigned the BP Agreement to CARC. Notwithstanding the foregoing, at any time after the Closing, if Buyer or CARC requests, in writing, that EPME terminate the BP Agreement, so long as either the Vitol Agreement or the agreement with CARC described in this Section 6.2(j) will be in effect for the entire period beginning with the request to terminate the BP Agreement and ending with the termination of the BP Agreement, EPME shall notify AirBP of EPME's election to terminate the BP Agreement.
(k) In the event the Intercompany Debt is not eliminated by March 30, 2004, Seller, the Company or Seller's Affiliates will cause a properly completed election to be timely filed for CARC under Code Sec. 7701 (and the regulations promulgated thereunder) to treat CARC as an entity disregarded for U.S. federal income tax purposes effective not later than March 30, 2004, and Buyer agrees not to make a Section 338 election with respect to CARC.
(l) Buyer and Seller shall work diligently to execute the Other Agreement substantially in the form attached hereto as Exhibit G, on or before three Business Days after the Execution Date.
Appears in 1 contract
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers Subject to the terms and conditions herein provided, the Buyer Parties Company, Acquiror and Acquiror Sub shall each use commercially all reasonable best efforts to (i) take, or to cause to be taken, all actions appropriate action, and to do, do or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are things necessary, proper or advisable under applicable Legal Requirements law or otherwise are reasonably to consummate and make effective the transactions contemplated by this Agreement as promptly as practicable, (ii) obtain from any Governmental Entities any consents, licenses or orders required to obtainbe obtained by Acquiror or the Company or any of their respective Subsidiaries in connection with the authorization, in execution and delivery of this Agreement and the case consummation of Sellersthe transactions contemplated by this Agreement, including, without limitation, the Authorizations set forth in Schedule 3.05 Merger, and (iii) make all necessary notifications and filings and thereafter make any other required submissions with respect to this Agreement and the Sellers' Disclosure Letter and, in Merger required under [a] the case Securities Act of the Buyer Parties1933, the Authorizations set forth in Schedule 4.03 to Securities Exchange Act of 1934 and any other applicable federal or state securities laws, [b] the Buyer Parties' Disclosure Letter. Sellers BHC Act, [c] Wisconsin Law, [d] Illinois Law, and [e] any other applicable law; provided that Acquiror and the Buyer Parties Company shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the nonfiling party's outside antitrust counsel prior to filing and, if requested, shall accept all reasonable additions, deletions or changes suggested in connection therewith. Sellers The Company and the Buyer Parties Acquiror shall furnish or cause to be furnished each other all information required for any application or other filing to be made pursuant to the rules and regulations promulgated under any applicable law (including all information required to be included in the notice of the meeting of the Company's shareholders called to approve this Agreement) in connection with obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement. Notwithstanding the foregoing, Acquiror agrees, subject to receipt of all necessary cooperation by the Company and its Subsidiaries, to use its reasonable best efforts to make initial filings or provide all initial notices contemplated above no later than November 15, 1997. Acquiror shall have primary responsibility for preparation of all applications for regulatory approval of the transactions contemplated in this Agreement and Acquiror shall provide the Company with a copy of each application or document filed by it with federal or state regulatory officials to obtain such approvals. As provided above, the Company agrees to cooperate with Acquiror and use its reasonable best efforts to assist the Acquiror in preparing such applications and filings and in pursuit of such approvals.
(bi) Sellers The Company and the Buyer Parties Acquiror shall each timely give, and shall give (or cause their respective Subsidiaries, as applicable, Subsidiaries to give, ) any notices to third Persons parties, and shall use, and cause their respective Subsidiaries, as applicable, Subsidiaries to use, commercially all reasonable best efforts to obtainobtain any third-party consents, [a] necessary to consummate the transactions contemplated in this Agreement, [b] disclosed or required to be disclosed in the case of Sellersdisclosure schedules to this Agreement, (x) the Third Person Consents set forth in Schedule 3.05 or [c] required to prevent a Company Material Adverse Effect from occurring prior to the Sellers' Disclosure Letter Effective Time.
(ii) In the event that any party shall fail to obtain any third-party consent described in subsection (b)(i) above, such party shall use reasonable best efforts, and (y) if so shall take any such actions reasonably requested in writing by Parentthe Company and Acquiror to minimize any adverse effect upon the Company, any additional Third Party Consents set forth in Schedule 3.14 its Subsidiaries and its businesses resulting, or which could reasonably be expected to result after the Sellers' Disclosure LetterEffective Time, and, in from the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 failure to the Buyer Parties' Disclosure Letterobtain such consent.
(c) Sellers and From the Buyer Parties date of this Agreement until the Effective Time, the Company shall each give prompt notice promptly notify Acquiror in writing of any pending or, to the knowledge of the Company, threatened action, proceeding or investigation by any Governmental Entity or any other of Person (i) any notice challenging or other communication from any Person seeking material damages in connection with the Merger, (ii) alleging that the consent of such Governmental Entity or Person is or may be required in connection with the transactions contemplated herebyMerger or this Agreement, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced seeking to restrain or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to prohibit the consummation of the transactions contemplated hereby and (iv) the occurrence or nonoccurrence of any event that would be likely to cause any of the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement Merger or otherwise limit or affect the remedies available hereunder right of Acquiror or, to the party receiving such noticeknowledge of the Company, its Subsidiaries, to own or operate all or any portion of the businesses or assets of the Company or its Subsidiaries.
(d) Sellers and From the Buyer Parties each agree to cooperate and use commercially reasonable efforts to eliminate date of this Agreement until the antitrust concern(s) Effective Time, Acquiror shall promptly notify the Company in writing of any Governmental Authority or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactionspending or, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this Agreement.to
(e) Sellers and Immediately prior to the Buyer Parties each agree that Effective Time, the terms and provisions of Company agrees to cause the Confidentiality Agreement are hereby incorporated herein Bank to recognize a provision for loan losses in the amount specified by reference and that such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d)Acquiror.
Appears in 1 contract
Appropriate Action; Consents; Filings. The covenants (a) Buyer may, in this Section 7.01 shall apply to the parties hereto from and after its discretion, following the date of this Agreement until (x) identify an interim ownership and/or operating structure that is satisfactory to Seller (in Seller’s sole discretion) with a person (such person, the “Interim Owner/Operator”) who is approved to own and operate non-restricted Gaming Activities by Gaming Authorities, and (y) to the extent Buyer elects to utilize such Interim Owner/Operator structure, following Seller’s approval, cause such Interim Owner/Operator to enter into a written agreement with Buyer and Seller, in form and substance reasonably acceptable to Seller, pursuant to which such Interim Owner/Operator shall (A) effective as of the Closing:
, hold so much of the Interests as may be required by the Gaming Authorities to obtain all requisite Gaming Approvals and assume responsibility for the Gaming Activities at the Real Property until such time as Buyer obtains all requisite Gaming Approvals and (B) agree to be bound by all applicable covenants and obligations contained in this Section 6.03. Buyer and the Seller, as applicable, shall use its reasonable best efforts (and Buyer shall cause its Affiliates and the Interim Owner/Operator, to the extent applicable, to use their respective reasonable best efforts) to (i) (a) Sellers promptly (and in no event more than fifteen (15) Business Days from the Buyer Parties shall each use commercially reasonable efforts to take, or to cause to be taken, date hereof) make all actions and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any notifications with the Gaming Authorities, (b) promptly make all filings and notifications to the Xxxxx County Board (including in respect of the Liquor Licenses) within the timeframe mandated by the Xxxxx County Board, and (c) promptly make all other required submissionsfilings and notifications to all other Governmental Entities that may be or may become required, that are reasonably necessary, proper or advisable under this Agreement and applicable Legal Requirements or otherwise are reasonably required Laws, including with respect to obtainobtaining the FCC Approvals, to consummate and make effective the transactions contemplated by this Agreement in the case of Sellers, the Authorizations set forth in Schedule 3.05 most expeditious manner possible and (ii) make their respective filings pursuant to the Sellers' Disclosure Letter and, in HSR Act with respect to the case transactions contemplated by this Agreement within ten (10) Business Days of the date hereof, unless mutually agreed otherwise by Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers and the Seller. Buyer Parties and the Seller shall cooperate with promptly provide to each other evidence of their respective filings or a copy of their respective applications in connection with the making of all such filings, including providing copies of all such documents to transactions contemplated hereby. Buyer shall have responsibility for the nonfiling party's outside antitrust counsel prior to filing and, if requested, shall accept all reasonable additions, deletions or changes suggested in connection therewith. Sellers and the Buyer Parties shall furnish or cause to be furnished all information required for any application or other filing to be made fees it incurs in connection with obtaining Gaming Approvals required under this Agreement or any such Authorizations. In particularother approvals or filings, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act including, any filing fees associated with any filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents made pursuant to the HSR Act; provided, however, Seller shall be responsible for any fees associated with Gaming Approvals related to the HUB Designation. Buyer shall be solely responsible for all costs associated with obtaining all Approvals that are required, reasonably necessary, proper or advisable with respect to the Animals (as defined in the Letter Agreement) in connection with the consummation of the transactions contemplated hereby.
(b) Each of Buyer and Seller hereby agrees to use its reasonable best efforts (and Buyer shall cause its Affiliates and the parties further agrees thatInterim Owner/Operator, to the extent applicable, to use their respective reasonable best efforts, as applicable) to (i) respond as promptly as practicable to any inquiries or requests for information and documentary material received from any Governmental Entity in connection with any Gaming Approvals or any antitrust, competition or financial regulatory matters related to the Agreement and the transactions contemplated by this Agreement and to otherwise take such actions so as to promptly obtain all actions or non-actions, consents, Permits, waivers, approvals, authorizations and orders from Governmental Entities necessary or advisable in connection with the consummation of the transactions contemplated hereby, including the Gaming Approvals, (ii) promptly notify the other party of any communication between that party and any Governmental Entity in respect of any filings, investigation, inquiry or other proceeding relating to the transactions contemplated by this Agreement and of any communication received or given in connection with any proceeding by a private party relating to the transactions contemplated by this Agreement, (iii) subject to applicable Law, discuss with and permit the other party (or its counsel) to review in advance, and consider in good faith the other party’s reasonable comments in connection with, any proposed filing or communication to any Governmental Entity or, in connection with any proceeding by a private party to any other person, relating to any filing, investigation, inquiry or other proceeding in connection with the transactions contemplated by this Agreement, (iv) not participate or agree to participate in any substantive meeting, telephone call or discussion with any Governmental Entity in respect of any filings, investigation or inquiry relating to any filing, investigation, inquiry, or other proceeding in connection with this Agreement or the transactions contemplated by this Agreement 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, telephone call or discussion, (v) subject to applicable Law, furnish the other party (or its counsel) promptly with copies of all correspondence, filings and communications relating to any filing, investigation, inquiry or other proceeding pursuant to any Antitrust Law between the party, its Affiliates or Representatives on the one hand, and any Governmental Entity or members of their respective staffs on the other hand, with respect to this Agreement or the transactions contemplated hereby, (vi) except with the prior written consent of ICOthe other party, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period or agree to refile under the HSR Act or otherwise withdraw any application with a Governmental Entity required to be made hereunder under the Gaming Laws or any other applicable Law, and (Bvii) except with the prior written consent of the other party, not enter into any voluntary agreement with any Governmental Authority Entity to not to consummate the transactions contemplated by this Agreement.
(bc) Sellers and Without limiting the foregoing, Buyer Parties shall each timely give, and shall cause their respective Subsidiaries, as applicable, agrees to give, any notices to third Persons and shall usetake, and cause their respective Subsidiariesits Affiliates to take, as applicable, promptly any and all steps necessary to use, commercially reasonable efforts to obtain, in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter avoid or eliminate each and (y) if so requested in writing by Parent, every impediment under any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter.
(c) Sellers and the Buyer Parties shall each give prompt notice to the other of (i) any notice or other communication from any Person alleging applicable Law that the consent of such Person is or may be required in connection with asserted by any antitrust, competition, investment, financial regulatory, Gaming Authority or trade regulation Governmental Entity so as to enable the parties to close the transactions contemplated herebyby this Agreement as expeditiously as possible and in any event prior to the Outside Date, (ii) including committing to or effecting, by consent decree, hold separate orders, or otherwise, the license, sale, divestiture or disposition of such of the assets, categories of assets or businesses of Buyer or its Affiliates, or of the assets, properties or businesses to be acquired by Buyer pursuant to this Agreement, and the entrance into such other arrangements relating to any notice such license, sale, divestiture or disposition, or making such other commitments, as are necessary or advisable in order to avoid the entry of, or to effect the dissolution of, any decree, order, judgment, injunction, temporary restraining order or other communication from order in any suit or proceeding or to avoid or eliminate any impediment under any applicable Law that be asserted by any antitrust, competition, investment, financial regulatory or trade regulation Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer PartiesEntity, that relate to would otherwise have the effect of delaying or preventing the consummation of the transactions contemplated hereby and (iv) the occurrence or nonoccurrence of any event that would be likely to cause any of the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party to consummate the transactions contemplated by this Agreement (it being understood and agreed by Buyer that no such action taken by Buyer shall entitle Buyer to any adjustment or reduction in the Purchase Price or shall otherwise affect any other obligation of Buyer hereunder). In addition, without limiting the generality of the foregoing, Buyer agrees to use, and cause its Affiliates to use, reasonable best efforts and take, and cause its Affiliates to take, all required actions to defend through litigation on the merits any claim asserted in court by any party in order to avoid entry of, or to fulfill their respective obligations set forth herein. No delivery of have vacated or terminated, any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation decree, order or warranty of the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such notice.
(d) Sellers and the Buyer Parties each agree to cooperate and use commercially reasonable efforts to eliminate the antitrust concern(s) of any Governmental Authority or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order judgment (whether temporary, preliminary or permanent) that would prevent the Closing of the transactions contemplated by this Agreement (it being understood and agreed by Buyer that no such action taken by Buyer shall entitle Buyer to any adjustment or reduction in the Purchase Price or shall otherwise affect any other obligation of Buyer hereunder); provided, that such litigation in no way limits the obligation of Buyer to take, and cause its Affiliates to take, promptly any and all steps necessary to avoid or eliminate each any every impediment under any applicable Law to close the transactions contemplated as expeditiously as possible and in any event prior to the Outside Date.
(d) Neither Buyer nor the Seller shall take or cause to be taken (including by the Interim Owner/Operator, to the extent applicable) any action that it is aware or reasonably should be aware would have the effect of delaying, impairing or impeding the receipt of the Gaming Approvals or any such other approvals, other than in connection with actions that would cause either Seller or Buyer to violate any existing contractual obligation. Without limiting the foregoing, neither Buyer nor the Seller shall (and Buyer shall cause the Interim Owner/Operator not to, to the extent applicable) take any action or enter into any transaction or agreement to effect any transaction (including any merger or acquisition) that might reasonably be expected to make it more difficult, or to increase the time required, to (i) obtain clearance or the expiration or termination of the waiting period under the HSR Act or to obtain the Gaming Approvals or any requisite approvals in respect of the Liquor Licenses or any other Law applicable to the transactions contemplated by this Agreement, (ii) avoid the entry of any Court injunction, temporary restraining order or other order that would materially delay or prevent the consummation of the transactions contemplated by this Agreement or (iii) obtain all authorizations, consents, orders and approvals of Governmental Authority that is in effect and that restricts, prevents or prohibits Entities necessary for the consummation of the transactions contemplated by this Agreement.
(e) Sellers and Each party hereto shall use its respective commercially reasonable efforts to obtain any third party (other than Governmental Entities) consents necessary or advisable in connection with the Buyer Parties each agree that transactions contemplated by this Agreement. Notwithstanding anything to the terms and provisions of the Confidentiality Agreement are hereby incorporated herein contrary in this Agreement, in connection with obtaining any approval or consent from any person (other than a Governmental Entity) with respect to any transaction contemplated by reference and that such terms and provisions shall continue in full force and effect until the Closingthis Agreement, except as otherwise provided in expressly contemplated by this Section 11.02(d)6.03, none of the Buyer, the Seller nor the Company 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 due to such person.
Appears in 1 contract
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers The Company, Parent and the Buyer Parties Merger Sub shall each use commercially their reasonable best efforts to (i) take, or to cause to be taken, all actions appropriate action and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are things necessary, proper or advisable under applicable Legal Requirements Applicable Law, including Antitrust Law and the CFIUS Authorities, or otherwise are reasonably to consummate and make effective the Transactions as promptly as practicable, (ii) obtain from any Governmental Authorities any consents, licenses, permits, waivers, approvals, authorizations or orders required to obtainbe obtained by Parent, in Merger Sub or the case Company, or any of Sellerstheir respective Subsidiaries, the Authorizations set forth in Schedule 3.05 or to the Sellers' Disclosure Letter and, in the case of the Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers and the Buyer Parties shall cooperate with each other avoid any action or Proceeding by any Governmental Authority (including those in connection with the making Antitrust Laws and the CFIUS Authorities), in connection with the authorization, execution and delivery of this Agreement and the consummation of the Transactions and (iii)(A) as promptly as reasonably practicable, and in any event within ten (10) Business Days after the date hereof, make, and use commercially reasonable efforts to cause its direct or indirect shareholders to make (to the extent required by Applicable Law), all such necessary filings, including providing copies of all such documents and thereafter make any other required submissions, with respect to this Agreement required under the HSR Act, (B) as promptly as reasonably practicable after the date hereof, make, and use commercially reasonable efforts to cause its direct or indirect shareholders to make (to the nonfiling party's outside antitrust counsel prior extent required by Applicable Law), all necessary filings, and thereafter make any other required submissions, with respect to filing and, if requested, shall accept all reasonable additions, deletions or changes suggested in connection therewith. Sellers this Agreement required under any other applicable Antitrust Laws and the Buyer Parties CFIUS Authorities, and (C) as promptly as reasonably practicable after the date hereof, make, and use commercially reasonable efforts to cause its direct or indirect shareholders to make (to the extent required by Applicable Law), all necessary filings, and thereafter make any other required submissions, with respect to this Agreement required under any other Applicable Law. The Company and Parent shall furnish or cause to be furnished each other all information required for any application or other filing under the rules and regulations of any Applicable Law in connection with the Transactions.
(b) Without limiting the generality of anything contained in this Section 6.03, each party hereto shall: (i) give the other parties prompt notice of the making or commencement of any request, inquiry, investigation, action or Proceeding by or before any Governmental Authority with respect to the Merger or any of the other Transactions; (ii) keep the other parties reasonably informed as to the status of any such request, inquiry, investigation, action or Proceeding; (iii) promptly inform the other parties of any communication to or from any Governmental Authority regarding the approval of the Merger or any of the other Transactions; (iv) respond as promptly as practicable to any additional requests for information received by any party from any Antitrust Authority any other Governmental Authority with respect to the Transactions or filings contemplated by Section 6.03(a); and (v) use reasonable best efforts to (A) obtain termination or expiration of the waiting period under the HSR Act, CFIUS Clearance and such other approvals, consents and clearances as may be necessary, proper or advisable under any Applicable Laws, including any other applicable Antitrust Laws and (B) prevent the entry in any action or Proceeding brought by a Governmental Authority or any other Person of any Governmental Order which would prohibit, make unlawful or delay the consummation of the Transactions. Parent shall take the lead with respect to (w) the scheduling of, and strategic planning for, any meeting with any Governmental Authority under the HSR Act or any other Applicable Law, (x) the making of any filings under the HSR Act or any other Applicable Law, (y) the process for the receipt of any necessary approvals and (z) the resolution of any investigation or other inquiry of any such Governmental Authority. Each party hereto will consult and reasonably 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 Authority or by Applicable Law, in connection with any such request, inquiry, investigation, action or Proceeding, each party hereto will permit Representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation, action or Proceeding and to have access to and be consulted in connection with any document, opinion or proposal made or submitted to any Governmental Authority in connection with such request, inquiry, investigation, action or Proceeding.
(c) Notwithstanding anything to the contrary in this Agreement, in connection with obtaining any such Authorizations. In particularapproval or consent related to any Applicable Law, each Parent shall cooperate in good faith with the Governmental Authorities and shall undertake promptly any and all action to complete lawfully the Transactions as soon as practicable (but in any event prior to the End Date) and any and all action reasonably necessary or advisable to avoid, prevent, eliminate or remove the actual or threatened commencement of any Proceeding in any forum by or on behalf of any Governmental Authority or the issuance of any Governmental Order that would (or to obtain the agreement or consent of any Governmental Authority to the Transactions the absence of which would) delay, enjoin, prevent, restrain or otherwise prohibit the consummation of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to Merger, including (i) make their initial HSR Act filings proffering and consenting and/or agreeing to a Governmental Order or other agreement providing for the sale, licensing or other disposition, or the holding separate of, or other limitations or restrictions on, or limiting any freedom of action with respect to, particular assets, categories of assets or lines of business (a “Regulatory Remedy Action”) and (ii) promptly effecting the disposition, licensing or holding separate of assets or lines of business, in respect each case, at such time as may be necessary to permit the lawful consummation of this transaction the Transactions on or prior to the 21st day after End Date. Notwithstanding anything to the date hereof and (ii) contrary in this Agreement, Parent shall be entitled to comply as expeditiously as possible with all lawful requests of make additional commitments to, or agreements with, Governmental Authorities for additional information and documents pursuant to delay the HSR Act. Each Closing following the expiration or termination of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary commitment to, or agreement with with, any Governmental Authority not to consummate close the transactions contemplated by this Agreement.
Transactions before a certain date (bbut in no event to delay the Closing beyond the End Date) Sellers and if such delay is reasonably necessary in order to prevent a Governmental Authority from continuing to investigate the Buyer Parties shall each timely giveTransactions, and shall cause their respective Subsidiaries, as applicable, to give, any notices to third Persons and shall use, and cause their respective Subsidiaries, as applicable, to use, commercially reasonable efforts to obtain, in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 imposing conditions or remedies with respect to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter.
(c) Sellers and the Buyer Parties shall each give prompt notice to the other of (i) any notice Transactions or other communication from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated hereby, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby and (iv) the occurrence or nonoccurrence of any event that would be likely to cause any of the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause commencing a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such noticeProceeding.
(d) Sellers Parent shall be solely responsible for and the Buyer Parties each agree to cooperate and use commercially reasonable efforts to eliminate the antitrust concern(s) of pay all costs incurred in connection with obtaining any Governmental Authority consents or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation approvals of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is type described in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this AgreementSection 6.03.
(e) Sellers and the Buyer Parties each agree that the terms and provisions of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d).
Appears in 1 contract
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers Seller and the Buyer Parties ------------------------------------- Company shall each use commercially all reasonable efforts to (i) take, or to cause to be taken, all actions appropriate action, and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are things necessary, proper or advisable under applicable Legal Requirements Law to consummate and make effective the transactions contemplated by this Agreement and the Stock Option Agreement, (ii) obtain all consents, licenses, permits, waivers, approvals, authorizations or otherwise are reasonably orders required under Law (including, without limitation, all foreign and domestic (federal, state and local) governmental and regulatory rulings and approvals and parties to obtaincontracts) required in connection with the authorization, in execution and delivery of this Agreement and the case Stock Option Agreement and the consummation by them of Sellersthe transactions contemplated hereby and thereby, including, without limitation, the Authorizations set forth in Schedule 3.05 Merger and the issuance of Seller Common Stock pursuant to the Sellers' Disclosure Letter andStock Option Agreement, in the case of the Buyer Parties(iii) make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers Stock Option Agreement and the Buyer Parties Merger required under (A) the Securities Act and the Exchange Act and the rules and regulations thereunder, and any other applicable federal or state securities laws, (B) applicable federal or state banking laws and (C) any other applicable Law; provided that, the Company and 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 nonfiling party's outside antitrust counsel non-filing party and its advisors prior to filing and, if requested, shall to accept all reasonable additions, deletions or changes suggested in connection therewith. Sellers The Seller and the Buyer Parties Company shall furnish or cause to be furnished 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 obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.
(b) Sellers . In case at any time after the Effective Time any further action is necessary or desirable to carry out the purposes of this Agreement, the proper officers and the Buyer Parties directors of each party to this Agreement shall each timely give, and shall cause their respective Subsidiaries, as applicable, to give, any notices to third Persons and shall use, and cause their respective Subsidiaries, as applicable, to use, commercially use all reasonable efforts to obtain, in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Lettertake all such necessary action.
(c) Sellers and the Buyer Parties shall each 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 transactions contemplated hereby, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby and (iv) the occurrence or nonoccurrence of any event that would be likely to cause any of the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such notice.
(d) Sellers and the Buyer Parties each agree to cooperate and use commercially reasonable efforts to eliminate the antitrust concern(s) of any Governmental Authority or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this Agreement.
(e) Sellers and the Buyer Parties each agree that the terms and provisions of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d).
Appears in 1 contract
Appropriate Action; Consents; Filings. The covenants in (a) Subject to the terms and conditions of this Section 7.01 shall apply to Agreement, the parties hereto from will cooperate with the other parties and after the date of this Agreement until the Closing:
(a) Sellers and the Buyer Parties shall each use commercially their respective reasonable best efforts to take, or to cause to be taken, all actions consummate and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are necessary, proper or advisable under applicable Legal Requirements or otherwise are reasonably required to obtain, in the case of Sellers, the Authorizations set forth in Schedule 3.05 to the Sellers' Disclosure Letter and, in the case of the Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers and the Buyer Parties shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the nonfiling party's outside antitrust counsel prior to filing and, if requested, shall accept all reasonable additions, deletions or changes suggested in connection therewith. Sellers and the Buyer Parties shall furnish or cause to be furnished all information required for any application or other filing to be made in connection with obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.
(b) Sellers and the Buyer Parties shall each timely give, and shall cause their respective Subsidiaries, as applicable, to give, any notices to third Persons and shall use, and cause their respective Subsidiaries, as applicable, to use, commercially reasonable efforts to obtain, in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter.
(c) Sellers and the Buyer Parties shall each 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 transactions contemplated hereby, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby and (iv) the occurrence or nonoccurrence of any event that would be likely to cause any of the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party to consummate effective the transactions contemplated by this Agreement or and to fulfill their respective obligations cause the conditions to the Merger set forth herein. No delivery of any notice pursuant in Article VI to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such notice.
(d) Sellers and the Buyer Parties each agree to cooperate and use commercially be satisfied, including using reasonable best efforts to eliminate accomplish the antitrust concern(sfollowing: (i) the obtaining of any all necessary actions or non-actions, consents and approvals from Governmental Authority Authorities or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is other Persons necessary in effect and that restricts, prevents or prohibits connection with the consummation of the transactions contemplated 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 commercially 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 and (ii) 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.
(b) 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 fifteen (15) 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 the contrary contained in this Agreement, neither Parent or any of its Affiliates shall be required to, and 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 transactions contemplated by this Agreement (it being understood that this sentence does not apply to the actions required by Section 5.3(e)).
(c) 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(c) 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 parties hereto will give reasonable notice to and consult with the other in advance of any meeting or substantive telephone call or conference with any Governmental Authority, or in connection with any such Proceeding, with 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.
(d) The parties shall consult with each other with respect to obtaining all permits and Consents necessary to consummate the transactions contemplated by this Agreement, including the Merger.
(e) Sellers Parent agrees to take, or cause to be taken (including by its Subsidiaries), any and 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 Buyer Parties 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 agree that case, so as to enable the terms Closing to occur as promptly as practicable and provisions in any event no later than the Termination Date. Nothing in this Agreement shall require Parent or any of its Affiliates to (w) propose, negotiate, commit to and effect, by consent decree, hold separate order, or otherwise, the sale, divestiture or disposition of any businesses, assets, equity interests, product lines or properties of the Confidentiality Company or of Parent or any of their respective Affiliates, (x) create, terminate, or divest relationships, ventures, contractual rights or obligations of the Company or of Parent or any of their respective Affiliates, (y) otherwise take or commit to take any action that would limit Parent’s or its Affiliates’ freedom of action with respect to, or its ability to retain or hold, directly or indirectly, any businesses, assets, equity interests, product lines or properties of the Company or of Parent or any of their respective Affiliates, or (z) require Company or Parent or any of their respective Affiliates to take or agree to take (or cause any of its subsidiaries to take or agree to take) any other action or to agree (or cause any of its subsidiaries to agree) to any limitation or restriction on any of its or their respective businesses, product lines or assets, in each case as may be 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 Authority to prohibit the transactions contemplated by the Agreement are hereby incorporated herein 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 reference and that such terms and provisions shall continue in full force and effect until this Agreement or delay the Closing, except as otherwise provided in Section 11.02(d)Closing beyond the Termination Date.
Appears in 1 contract
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers The Company, Parent and the Buyer Parties Parent Sub shall each use commercially reasonable its best efforts to to: (i) take, or to cause to be taken, all actions appropriate action, and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are things necessary, proper or advisable under applicable Legal Requirements Law or otherwise are reasonably 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 obtainbe obtained or made by Parent, Parent Sub or the Company in connection with the case authorization, execution and delivery of Sellersthis Agreement and the consummation of the transactions contemplated herein, including, without limitation, the Authorizations set forth in Schedule 3.05 Merger; (iii) make all necessary filings, and thereafter make any other required submissions, with respect to the Sellers' Disclosure Letter and, in the case of the Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers this Agreement and the Buyer Parties Merger required under (A) Delaware Law (including holding a stockholders meeting and/or sending notice of merger and appraisal rights) and the federal securities laws and the rules and regulations thereunder, if any, and any other applicable federal or state securities laws, and (B) any other applicable Law; provided that Parent, Parent Sub and 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 nonfiling party's outside antitrust counsel party and its advisors prior to filing and, if requested, shall accept accepting all reasonable additions, deletions or changes suggested in connection therewith. Sellers The Company, Parent and the Buyer Parties Parent Sub shall furnish or cause to be furnished 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 obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.
(b) Sellers (i) Each of the Company, Parent and the Buyer Parties Parent Sub shall each timely give, and shall cause their respective Subsidiaries, as applicable, to give, give any notices to third Persons and shall useparties, and cause their respective Subsidiaries, as applicable, to use, commercially reasonable use its best efforts to obtainobtain any third party consents (A) necessary, proper or advisable to consummate the transactions contemplated in this Agreement, (B) disclosed or required to be disclosed in the case of Sellersschedules contained herein, (xC) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parentotherwise required under any Contracts, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letterlicenses, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter.
(c) Sellers and the Buyer Parties shall each give prompt notice to the other of (i) any notice leases or other communication from any Person alleging that the consent of such Person is or may be required agreements in connection with the transactions contemplated hereby, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby and herein or (ivD) required to prevent a Company Material Adverse Effect from occurring prior to or after the occurrence Effective Time or nonoccurrence of any event that would be likely a Parent Material Adverse Effect from occurring prior to cause any of or after the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such noticeEffective Time.
(d) Sellers and the Buyer Parties each agree to cooperate and use commercially reasonable efforts to eliminate the antitrust concern(s) of any Governmental Authority or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this Agreement.
(e) Sellers and the Buyer Parties each agree that the terms and provisions of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d).
Appears in 1 contract
Samples: Merger Agreement (Daou Systems Inc)
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to During the parties hereto from and after the date of this Agreement until the ClosingInterim Period:
(a) Sellers Seller, Lion and the Buyer Parties shall each use commercially reasonable efforts Commercially Reasonable Efforts to (i) take, or to cause to be taken, all actions actions, and to do, or to cause to be done, all thingsthings that, including the making of all necessary filings and thereafter any other required submissionsin either case, that are necessary, proper or advisable under applicable Legal Requirements Law or otherwise are reasonably to consummate and make effective the Contemplated Transactions, (ii) obtain from the relevant Governmental Authorities all Authorizations required to obtain, in the case of Sellers, the Authorizations set forth in Schedule 3.05 be obtained at or prior to the Sellers' Disclosure Letter andClosing by Seller, Lion or Buyer in connection with the case authorization, execution, delivery and performance of this Agreement and the consummation of the Buyer PartiesContemplated Transactions, and (iii) make all necessary filings, including filings under the Authorizations set forth in Schedule 4.03 HSR Act and the DPA, and thereafter make any other required submissions, with respect to this Agreement and the Contemplated Transactions required under any Law at or prior to the Closing. Buyer, on the one hand, and Seller, on its own behalf and on behalf of Lion, on the other hand, shall each bear the costs and expenses of their respective filings; provided that Buyer Parties' Disclosure Lettershall bear all of the filing fees in connection with any such filings other than filings under the HSR Act (which shall be borne equally by Buyer, on the one hand, and Seller, on the other). Sellers Seller, Lion and the Buyer Parties shall each cooperate with each other in connection with the making of all such filings, including by providing copies of all such documents to the nonfiling party's outside antitrust counsel non-filing party and its advisors prior to filing and, if requested, shall accept accepting all reasonable additions, deletions or changes suggested in connection therewith. Sellers Additionally, Seller and Buyer shall consult with the other prior to any meetings, by telephone or in person, with the staff of the applicable Governmental Authorities, and (when customary in such circumstances and to the extent permitted by the applicable Governmental Authority) each Party shall have the right to have a representative present at any such meeting. Seller and Buyer Parties shall each use Commercially Reasonable Efforts to furnish or cause to be furnished all information required for any application or other filing to be made pursuant to any Law in connection with obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this AgreementContemplated Transactions.
(b) Sellers Seller, Lion and the Buyer Parties shall each timely give, give or cause to be given all notices to Third Persons and shall cause their respective Subsidiariesuse all Commercially Reasonable Efforts to obtain all Third-Person Consents (i) set forth in Schedules 3.3(a)(iv) and 3.3(c)(vii), as applicable, to give, or (ii) required under any notices to third Persons and shall use, and cause their respective Subsidiaries, as applicable, to use, commercially reasonable efforts to obtain, Material Contract in connection with the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case consummation of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure LetterContemplated Transactions.
(c) Sellers Seller and the Buyer Parties shall each give prompt notice to the other of the receipt of any written notice or other written communication from (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 transactions contemplated herebyContemplated Transactions or Buyer’s ownership of the Lion Shares, (ii) any notice or other communication from any Governmental Authority or Stock Exchange in connection with the transactions contemplated herebyContemplated Transactions, (iii) any Actions commenced Governmental Authority, Stock Exchange or threatened in writing other Person regarding the initiation or threat of initiation of any Claims against, relating to to, or involving or otherwise affecting the Companies, Buyer or Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby and Contemplated Transactions or Buyer’s ownership of the Lion Shares, or (iv) any Person regarding the occurrence or nonoccurrence of any event that the occurrence or nonoccurrence of which would be reasonably likely to (A) cause any of condition to the Closing Conditions obligations of the other party hereto to consummate the Contemplated Transactions not to be satisfied or of any other change that is reasonably likely to satisfied, (B) cause a breach of the representations, warranties or covenants of such party under this Agreement Agreement, or to (C) delay or impede the ability of either party Lion, Buyer or Seller, respectively, to consummate the transactions contemplated by this Agreement Contemplated Transactions or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such notice.
(d) Sellers Buyer and the Buyer Parties Seller each agree to cooperate and to use commercially reasonable efforts Commercially Reasonable Efforts to eliminate the antitrust concern(s) of vigorously contest and to resist any Governmental Authority or Court. If there is no commercially reasonable solution to an action, including legislative, administrative or judicial challenge to the consummation of the transactionsaction, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order order (whether temporary, preliminary or permanent) of any Court court or other Governmental Authority or any Stock Exchange that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated Contemplated Transactions, including the vigorous pursuit of all available avenues of administrative and judicial appeal and all available legislative action. Buyer shall take, or cause to be taken, Commercially Reasonable Efforts required by this Agreement.
(e) Sellers and any Governmental Authority as a condition to the Buyer Parties each agree that granting of any Authorization necessary for the terms and provisions consummation of the Confidentiality Agreement are hereby incorporated herein Contemplated Transactions or as may be required to avoid, lift, vacate or reverse any legislative, administrative or judicial action that would otherwise cause any Closing Condition not to be satisfied; provided that compliance with this Section 6.2(d) by reference and that such terms and provisions Buyer shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d)not require Buyer to dispose of any of its material assets or assume any material Obligations.
Appears in 1 contract
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers Everyday Health, Parent and the Buyer Parties shall each Purchaser will use commercially their respective reasonable best efforts to take, take or to cause to be taken, all actions and file or cause to dobe filed, do or to cause to be done, and to assist and cooperate with the each other in doing, any and all things, including the making of all necessary filings and thereafter any other required submissions, that are things necessary, proper or advisable under applicable Legal Requirements antitrust laws to consummate the transactions contemplated by the Merger Agreement, including: • obtaining all necessary actions, nonactions, waivers, consents, clearances, decisions, declarations, approvals, and expirations or termination of waiting periods from governmental bodies (“Governmental Consents”), and the making of all necessary registrations and filings and the taking of all steps as may be necessary to obtain any such Governmental Consents; • obtaining all necessary consents, authorization, approvals or waivers from Third Parties; and • executing and delivering any additional instruments necessary to consummate the transactions contemplated by the Merger Agreement. Everyday Health, Parent and the Purchaser have agreed to use reasonable best efforts to, take or cause to be taken all steps necessary to avoid or eliminate each and every impediment and obtain all governmental authorizations under any antitrust laws that may be required by any foreign or U.S. federal, state or local governmental body for which such governmental authorizations are sought in connection with the transactions contemplated by the Merger Agreement, so as to enable the parties to close such transactions as promptly as practicable; provided, however, that Parent, Purchaser and their respective affiliates will not be required to (i) divest or hold separate any business or assets in connection with the consummation of the transactions Table of Contents contemplated by the Merger Agreement; (ii) agree to any condition, restriction or limitation with respect to the businesses, product lines or assets of Parent, Purchaser, Everyday Health, or any of their respective subsidiaries or affiliates; or (iii) pay any money to any person or offer or grant financial or other accommodations to any person in connection with their obligations described in this section; and provided that Everyday Health and its subsidiaries shall only be required to take or commit to take any such action, or agree to any such condition or restriction, if such action, commitment, agreement, condition or restriction is binding on such entities only in the event the Closing occurs. Each of Parent, Purchaser and Everyday Health have agreed to respond as promptly as practicable to any inquiries and requests received from any governmental body. Notwithstanding anything to the contrary in the Merger Agreement, neither Everyday Health nor any of its subsidiaries may, without the written consent of Parent, offer or agree to divest, license, hold separate (including by trust or otherwise) or otherwise are reasonably required commit any of Everyday Health, Parent, Purchaser or any of their respective subsidiaries to obtaintake any action that limits any freedom of action with respect to their ability to retain or operate any of their businesses, services or assets. Each of Parent, Purchaser and Everyday Health have agreed to (and to cause their respective affiliates to): • cooperate in the case of Sellers, the Authorizations set forth in Schedule 3.05 to the Sellers' Disclosure Letter and, in the case of the Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers all respects and the Buyer Parties shall cooperate consult with each other in connection with the making of all such filingsany filing or submission, including providing copies allowing the other Party to have a reasonable opportunity to review in advance and comment on drafts of all such documents to the nonfiling party's outside antitrust counsel prior to filing andfilings and submissions; and • cooperate with each other in determining whether, if requestedand promptly preparing and making, shall accept all reasonable additions, deletions any other filings or changes suggested in connection therewith. Sellers and the Buyer Parties shall furnish or cause to be furnished all information notifications are required for any application or other filing to be made in connection with obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Partieswith, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not Consents are required to consummate the transactions contemplated by this Agreement.
(b) Sellers and the Buyer Parties shall each timely give, and shall cause their respective Subsidiaries, as applicable, to givebe obtained from, any notices to third Persons and shall use, and cause their respective Subsidiaries, as applicable, to use, commercially reasonable efforts to obtain, in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter.
(c) Sellers and the Buyer Parties shall each 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 governmental bodies in connection with the transactions contemplated herebyby the Merger Agreement. Without limiting the above, (ii) any each of Parent, the Purchaser and Everyday Health has agreed to use its reasonable best efforts to: • give the other parties prompt notice or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby and (iv) the occurrence making or nonoccurrence commencement of any event that would be likely request, inquiry, investigation, action or legal proceeding brought by a governmental body or brought by a Third Party before any governmental body, in each case, with respect to cause any of the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party to consummate the transactions contemplated by this Agreement or the Merger Agreement, • keep the other parties informed as to fulfill their respective obligations set forth herein. No delivery the status of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach such request, inquiry, investigation, action or legal proceeding, • promptly inform the other parties of any representation communication to or warranty from any other governmental body in connection with any such request, inquiry, investigation, action or legal proceeding, • upon request, promptly furnish to the other party, subject to an appropriate confidentiality agreement to limit disclosure to outside counsel and consultants retained by such counsel, with copies of documents provided to or received from any governmental body in connection with any such request, inquiry, investigation, action or legal proceeding (other than Item “4(c)” and “4(d)” documents as those terms are used in the rules and regulations under the HSR Act), • subject to an appropriate confidentiality agreement to limit disclosure to counsel and outside consultants retained by such counsel, and to the extent reasonably practicable, consult in advance and cooperate with the other parties and consider in good faith the views of the party giving other parties in connection with any analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal to be made or submitted in connection with any such notice contained request, inquiry, investigation, action or legal proceeding, and • except as may be prohibited by applicable law, in this Agreement connection with any such request, inquiry, investigation, action or otherwise limit or affect the remedies available hereunder to the party receiving such notice.
(d) Sellers and the Buyer Parties each agree to cooperate and use commercially reasonable efforts to eliminate the antitrust concern(s) of any Governmental Authority or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is legal proceeding in effect and that restricts, prevents or prohibits the consummation respect of the transactions contemplated by this the Merger Agreement.
(e) Sellers , provide advance notice of and the Buyer Parties each agree that the terms and provisions permit authorized representatives of the Confidentiality Agreement are hereby incorporated herein by reference other party to be Table of Contents 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 advance in connection with any argument, opinion or proposal to be made or submitted to any Governmental Body in connection with such request, inquiry, investigation, action or Legal Proceeding. Purchaser has agreed to pay all filing fees under the HSR Act, but Everyday Health shall bear its own costs for the preparation of any such filings. Neither party shall commit to or agree with any governmental body to stay, toll or extend any applicable waiting period under the HSR Act, or pull and refile under the HSR Act, or other applicable antitrust laws, without the prior written consent of the other. No Other Acquisitions. Purchaser and Parent agreed that such terms and provisions shall continue in full force and effect until they will not, before the Closing, except as otherwise provided in Section 11.02(d)acquire or enter into any agreement to acquire, or announce any acquisition of any company, business or assets, that would reasonably be expected to prevent or materially delay the Merger, without Everyday Health’s prior written approval.
Appears in 1 contract
Samples: Offer to Purchase (J2 Global, Inc.)
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers Cody Company and the Buyer Parties Acquiror shall each use use, and shall cause each of their respective Subsidiaries to use, all commercially reasonable efforts to (i) take, or to cause to be taken, all actions appropriate action, and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are things necessary, proper or advisable under applicable Legal Requirements Law or otherwise are reasonably 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 obtainbe obtained or made by Acquiror or Cody Company or any of their respective Subsidiaries in connection with the authorization, in execution and delivery of this Agreement and the case consummation of Sellersthe transactions contemplated hereby, including, without limitation, the Authorizations set forth in Schedule 3.05 Merger, (iii) make all necessary filings, and thereafter make any other required submissions, with respect to the Sellers' Disclosure Letter and, in the case of the Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers this Agreement and the Buyer Parties Merger required under (A) 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 (C) any other applicable Law, including without limitation Blue Sky Laws; provided that Acquiror and Cody Company shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the nonfiling party's outside antitrust counsel party and its advisors prior to filing filings and, if requested, shall accept all reasonable additions, deletions or changes suggested in connection therewith. Sellers Cody Company and the Buyer Parties Acquiror shall furnish or cause to be furnished 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 obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.
(b) Sellers Acquiror and the Buyer Parties shall each timely giveCody Company agree to cooperate with respect to, and shall cause each of their respective Subsidiaries, as applicable, Subsidiaries to give, any notices to third Persons and shall usecooperate with respect to, and cause their respective Subsidiaries, as applicable, agree to use, use all commercially reasonable efforts vigorously to obtain, in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter contest and (y) if so requested in writing by Parentresist, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letteraction, andincluding legislative, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter.
(c) Sellers and the Buyer Parties shall each 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 transactions contemplated hereby, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby and (iv) the occurrence or nonoccurrence of any event that would be likely to cause any of the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such notice.
(d) Sellers and the Buyer Parties each agree to cooperate and use commercially reasonable efforts to eliminate the antitrust concern(s) of any Governmental Authority or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactionsaction, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order decree, judgment, injunction or other order (whether temporary, preliminary or permanent) (an "Order") of any Court or Governmental Authority 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, without limitation, by vigorously pursuing all available avenues of administrative and judicial appeal and all available legislative action.
(ei) Sellers Each of Cody Company and Acquiror shall give (or shall cause their respective Subsidiaries to give) any notices to third parties, and shall use, and cause their respective Subsidiaries to use, all commercially reasonable efforts to obtain any third party consents (A) necessary, proper or advisable to consummate the Buyer Parties each agree transactions contemplated by this Agreement, (B) otherwise required under any contracts, licenses, leases or other agreements in connection with the consummation of the transactions contemplated hereby, or (C) required to prevent a Cody Material Adverse Effect or a Cody Energy Material Adverse Effect from occurring prior to the Effective Time or an Acquiror Material Adverse Effect from occurring after the Effective Time.
(ii) In the event that any party shall fail to obtain any third party consent described in subsection (c)(i) above, such party shall use all commercially reasonable efforts, and shall take any such actions reasonably requested by the other parties, to limit the adverse effect upon Cody Company and Acquiror, their respective Subsidiaries, and their respective businesses resulting, or which could reasonably be expected to result after the Effective Time, from the failure to obtain such consent.
(d) Each of Acquiror and Cody Company shall promptly notify the other of (i) any material change in its business, financial condition or results of operations, (ii) any complaints, investigations or hearings (or communications indicating that the terms same may be contemplated) of any Governmental Entities with respect to its business or the transactions contemplated hereby, (y) the institution or the threat of Material Litigation involving it or any of its Subsidiaries or (z) 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 provisions correct at the Effective Time. As used in the preceding sentence, "Material Litigation" means any case, arbitration or ------------------- adversary proceeding or other matter which would have been required to be disclosed on the Cody Disclosure Schedule pursuant to Sections 3.08 and 4.08 or the Acquiror Disclosure Schedule pursuant to Section 5.07, as the case may be, if in existence on the date hereof, or in respect of which the legal fees and other costs to Cody Company or Acquiror (or their respective Subsidiaries), as the case may be, might reasonably be expected to exceed $[200,000] over the life of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d)matter.
Appears in 1 contract
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply Each of RC2, Parent and Purchaser has agreed to the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers and the Buyer Parties shall each use commercially their respective reasonable best efforts to as promptly as reasonably practicable: (1) take, or to cause to be taken, all actions appropriate actions, and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are things necessary, proper or advisable under applicable Legal Requirements law to consummate and make effective the transactions contemplated by the Merger Agreement (2) obtain required permits, waivers, consents or otherwise are reasonably authorizations from governmental authorities or other persons in connection with the consummation of the transactions contemplated by the Merger Agreement, including the Offer and the Merger, (3) defend any proceedings challenging the Merger Agreement or the consummation of the transactions including the Offer and the Merger and (4) make all necessary filings and other required to obtain, in 33 Table of Contents submissions required under the case of Sellers, the Authorizations set forth in Schedule 3.05 HSR Act or foreign antitrust laws with respect to the Sellers' Disclosure Letter and, in the case of the Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers Merger Agreement and the Buyer Parties shall Merger. Parent and RC2 agreed to cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the nonfiling party's outside antitrust counsel non-filing party and its advisors prior to filing and, if requested, shall to accept all reasonable additions, deletions or changes suggested in connection therewithwith such filing. Sellers RC2 and the Buyer Parties shall Parent agreed to furnish or cause to be furnished all information required for any application or other filing to be made in connection with obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each rules and regulations of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.
(b) Sellers and the Buyer Parties shall each timely give, and shall cause their respective Subsidiaries, as applicable, to give, any notices to third Persons and shall use, and cause their respective Subsidiaries, as applicable, to use, commercially reasonable efforts to obtain, in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter.
(c) Sellers and the Buyer Parties shall each 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 applicable law in connection with the transactions contemplated herebyby the Merger Agreement. RC2, Parent and Purchaser each agreed to use reasonable best efforts to: (ii1) make the applications or filings required to be made by Parent, MergerSub or RC2 or any notice or other communication from any Governmental Authority of their subsidiaries under the HSR Act in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby Merger Agreement and (iv) the occurrence or nonoccurrence of any event that would be likely to cause any of the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such notice.
(d) Sellers and the Buyer Parties each agree to cooperate and use commercially reasonable efforts to eliminate the antitrust concern(s) of any Governmental Authority or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this the Merger Agreement as promptly as is reasonably practicable (and in any event within 10 business days following the date of the Merger Agreement), and to concurrently with such filing or as soon as practicable thereafter, request early termination of the waiting period under the HSR Act, (2) comply at the earliest practicable date with any request under the HSR Act or foreign antitrust laws for additional information received by Parent or RC2 or any of their subsidiaries from the Federal Trade Commission or the Department of Justice or any other governmental authority in connection with such applications or filings or the Transactions and (3) reasonably coordinate and cooperate with each other party in the making of any applications or filings (including furnishing any information the other party may require in order to make any such application or filing), or obtaining any approvals, required in connection with the Transactions under the HSR Act or Foreign Antitrust Laws. RC2 agreed that Parent has the right to take the lead in any communications with any third person or governmental authority with respect to obtaining such approvals or consents and RC2 cannot take any action in connection therewith without the prior written consent of Parent. RC2 and Parent agreed that neither of them will be required to divest or hold separate their assets in connection with necessary HSR Act or foreign antitrust approvals, unless such action would be immaterial to Parent, RC2 or the economic or business benefits to Parent of the transactions contemplated by the Merger Agreement.
(e) Sellers and the Buyer Parties each agree that the terms and provisions of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d).
Appears in 1 contract
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers Superior and the Buyer Parties shall Parkxx xxxll each use commercially all reasonable efforts (i) to take, or to cause to be taken, all actions actions, and to do, or to cause to be done, all thingsthings that, including the making of all necessary filings and thereafter any other required submissionsin either case, that are necessary, proper or advisable under applicable Legal Requirements law or otherwise are reasonably to consummate and make effective the transactions contemplated by this Agreement, (ii) to obtain from any governmental authorities any authorizations or orders required to obtainbe obtained by Parkxx xx Superior or any of their respective subsidiaries in connection with the authorization, execution, delivery and 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, with respect -29- 34 to this Agreement and the Merger required under (A) the Securities Act (in the case of Sellers, Parkxx) xxd the Authorizations set forth in Schedule 3.05 to the Sellers' Disclosure Letter and, in the case of the Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers Exchange Act and the Buyer Parties regulations thereunder, and any other applicable federal or state securities laws, (B) the HSR Act and (C) any other applicable law. Parkxx xxx Superior shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the nonfiling party's outside antitrust counsel party and its advisors prior to filing filings and, if requested, shall accept all reasonable additions, deletions or changes suggested in connection therewith. Sellers Superior and the Buyer Parties shall Parkxx xxxll furnish or cause to be furnished all information required for any application or other filing to be made pursuant to any applicable law or any applicable regulations of any governmental authority (including all information required to be included in the Joint Proxy Statement, the Joint Proxy Statement/Prospectus or the Registration Statement) in connection with obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.
(b) Sellers Each of Superior and the Buyer Parties shall each timely give, and shall cause their respective Subsidiaries, as applicable, to give, any notices to third Persons and shall use, and cause their respective Subsidiaries, as applicable, to use, commercially reasonable efforts to obtain, in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter.
(c) Sellers and the Buyer Parties shall each Parkxx xxxll give prompt notice to the other of (i) the occurrence, or failure to occur, of any event which occurrence or failure would be likely to cause any of its representations or warranties contained in this Agreement to be untrue or inaccurate at any time from the date hereof to the Effective Time, (ii) any material failure by it or any of its officers, directors, employees or agents to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied by it hereunder, (iii) any notice or other communication from any Person alleging that the consent of such Person is or may be required in connection with the transactions contemplated herebyMerger, (iiiv) any notice or other communication from any Governmental Authority governmental authority in connection with the transactions contemplated herebyMerger, (iiiv) any Actions actions, suits, claims, investigations or proceedings commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer PartiesSuperior, Parkxx xx their respective subsidiaries that relate to the consummation of the transactions contemplated hereby Merger, and (ivvi) the occurrence or nonoccurrence of any event that would be likely to cause any of the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause have a breach of the covenants of such party under this Agreement Superior MAE or a Parkxx XXX, xxspectively, or is likely to delay or impede the ability of either party Superior or Parkxx, xxspectively, to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such notice.
(dc) Sellers and the Buyer Parties each Parkxx xxx Superior agree to cooperate and use commercially all reasonable efforts vigorously to eliminate the antitrust concern(s) of contest and resist any Governmental Authority or Court. If there is no commercially reasonable solution to an action, including legislative, administrative or judicial challenge to the consummation of the transactionsaction, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order order (whether temporary, preliminary or permanent) of any Court court or Governmental Authority governmental authority that is in effect and that restricts, prevents or prohibits the consummation of the Merger or any other transactions contemplated by this Agreement, including the vigorous pursuit of all available avenues of administrative and judicial appeal and all available legislative action.
(ei) Sellers Each of Superior and Parkxx xxxll give (or shall cause their respective subsidiaries to give) any notices to third persons, and use, and cause their respective subsidiaries to use, all reasonable efforts to obtain any consents from third persons (A) necessary, proper or advisable to consummate the Buyer Parties each agree that the terms and provisions transactions contemplated by this Agreement or to satisfy any of the Confidentiality Agreement are conditions set forth in Article VI, (B) otherwise required under any contracts, licenses, leases or other agreements in connection with the consummation of the transactions contemplated hereby incorporated herein by reference or (C) required to prevent a Superior MAE or a Parkxx XXX xxxm occurring prior to or after the Effective Time.
(ii) If any party shall fail to obtain any consent from a third person described in subsection (d)(i) above, such party shall use all reasonable efforts, and that such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d).take
Appears in 1 contract
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers The Dickxxx Xxxup, the Shareholder, the Acquiror and the Buyer Parties Acquisition Corp. shall each use commercially use, all reasonable efforts promptly (i) to take, or to cause to be taken, all actions appropriate action, and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are things necessary, proper or advisable under applicable Legal Requirements Law or otherwise are reasonably to consummate and make effective the transactions contemplated by this Agreement, (ii) to obtain from any Governmental Authority any consents, licenses, permits, waivers, approvals, authorizations or orders required to obtainbe obtained by the Dickxxx Xxxup, the Shareholder or Acquiror or Acquisition Corp., respectively, in connection with the case authorization, execution, delivery and performance of Sellersthis Agreement and the consummation of the transactions contemplated hereby and (iii) to make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement and the transactions contemplated hereby under (A) the Exchange Act, the Authorizations set forth in Schedule 3.05 to rules and regulations thereunder and any other applicable U. S. federal or state securities laws, (B) the Sellers' Disclosure Letter and, in the case of the Buyer PartiesHart-Xxxxx-Xxxxxx Xxx ("HSR" Act) and (C) any other applicable Law; provided that Acquiror, the Authorizations set forth in Schedule 4.03 to Shareholder, the Buyer Parties' Disclosure Letter. Sellers Dickxxx Xxxup and the Buyer Parties Acquisition Corp. shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the nonfiling party's outside antitrust counsel party and its advisors prior to filing (except, with respect to the HSR Act, for such documents that are not customarily provided to the other party) and, if requested, shall accept all reasonable additions, deletions or changes suggested in connection therewith. Sellers The Dickxxx Xxxup, Acquiror, the Shareholder, and the Buyer Parties Acquisition Corp. shall furnish or cause to be furnished 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 obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.
(b) Sellers and Dickxxx Xxxup, the Buyer Parties shall each timely give, and shall cause their respective Subsidiaries, as applicableAcquiror and, to givethe extent applicable to a particular Shareholder, any notices to third Persons and shall use, and cause their respective Subsidiaries, as applicable, to use, commercially reasonable efforts to obtain, in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter.
(c) Sellers and the Buyer Parties shall each 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 transactions contemplated hereby, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby and (iv) the occurrence or nonoccurrence of any event that would be likely to cause any of the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such notice.
(d) Sellers and the Buyer Parties each Shareholder agree to cooperate and to use commercially all reasonable efforts to eliminate the antitrust concern(s) of contest and resist any Governmental Authority or Court. If there is no commercially reasonable solution to an action, including legislative, administrative or judicial challenge to the consummation of the transactionsaction, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order decree, judgment, injunction or other order (whether temporary, preliminary or permanent) of any Court or Governmental Authority (an "Order") that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this Agreement, including, without limitation, by vigorously pursuing all available avenues of administrative and judicial appeal and all available legislative action. Acquiror, the Shareholder, and the Dickxxx Xxxup also agree to take all reasonable actions, including, without limitation, 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 transactions contemplated hereby 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 any party take, or be required to take, any action that could reasonably be expected to have a Material Adverse Effect.
(ec) Sellers The Dickxxx Xxxup, Acquiror, the Shareholder and Acquisition Corp. shall each promptly give any notices regarding this Agreement or the transactions contemplated 43 38 hereby to third parties required by Law or by any contract, license, lease or other agreement to which such person is a party or by which such person is bound, and use all reasonable efforts to obtain any third party consents (i) necessary to consummate the transactions contemplated by this Agreement, or (ii) otherwise required under any contracts, licenses, leases or other agreements in connection with the consummation of the transactions contemplated by this Agreement.
(d) If the Dickxxx Xxxup, the Shareholder, Acquisition Corp. or Acquiror shall fail to obtain any third party consent described in subsection (c)(i) above, such party shall use all reasonable efforts, and shall take any such actions reasonably requested by the other parties, to limit the adverse effect upon the Dickxxx Xxxup, Acquiror, the Affiliates, their respective businesses and the Buyer Parties each agree that the terms and provisions of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until Shareholder resulting, or which could reasonably be expected to result after the Closing, except as otherwise provided in Section 11.02(d)from the failure to obtain such consent.
Appears in 1 contract
Samples: Stock Purchase and Merger Agreement (Transcoastal Marine Services Inc)
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers Subject to the terms and conditions herein provided, the Buyer Parties Company, Acquiror and Acquiror Sub shall each use commercially all reasonable efforts to (i) take, or to cause to be taken, all actions appropriate action, and to do, do or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are things necessary, proper or advisable under applicable Legal Requirements law or otherwise are reasonably to consummate and make effective the transactions contemplated by this Agreement as promptly as practicable, (ii) obtain from any Governmental Entities any consents, licenses or orders required to obtainbe obtained by Acquiror or the Company or any of their respective Subsidiaries in connection with the authorization, in execution and delivery of this Agreement and the case consummation of Sellersthe transactions contemplated by this Agreement, including, without limitation, the Authorizations set forth in Schedule 3.05 Merger, and (iii) make all necessary notifications and filings and thereafter make any other required submissions with respect to this Agreement and the Sellers' Disclosure Letter and, in Merger required under [a] the case of the Buyer PartiesSecurities Act, the Authorizations set forth in Schedule 4.03 to Exchange Act and any other applicable federal or state securities laws, [b] the Buyer Parties' Disclosure Letter. Sellers HSR Act, and [c] any other applicable law; provided that Acquiror and the Buyer Parties Company shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the nonfiling party's outside antitrust counsel prior to filing and, if requested, shall accept all reasonable additions, deletions or changes suggested in connection therewith. Sellers The Company and the Buyer Parties Acquiror shall furnish or cause to be furnished 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 Registration Statement) in connection with obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.. (b)
(bi) Sellers The Company and the Buyer Parties Acquiror shall each timely give, and shall give (or cause their respective Subsidiaries, as applicable, Subsidiaries to give, ) any notices to third Persons parties, and shall use, and cause their respective Subsidiaries, as applicable, Subsidiaries to use, commercially all reasonable efforts to obtainobtain any third-party consents, in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter.
(c) Sellers and the Buyer Parties shall each 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 transactions contemplated hereby, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby and (iv) the occurrence or nonoccurrence of any event that would be likely to cause any of the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party [a] necessary to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement Agreement, [b] disclosed or otherwise limit required to be disclosed in the disclosure schedules to this Agreement, or affect the remedies available hereunder [c] required to prevent a Company Material Adverse Effect from occurring prior to the party receiving such noticeEffective Time.
(dii) Sellers In the event that any party shall fail to obtain any third-party consent described in subsection (b)(i) above, such party shall use reasonable efforts, and shall take any such actions reasonably requested by the Buyer Parties each agree Company and Acquiror to cooperate minimize any adverse effect upon the Company, its Subsidiaries and use commercially reasonable efforts its businesses resulting, or which could reasonably be expected to eliminate result after the antitrust concern(s) of any Governmental Authority or Court. If there is no commercially reasonable solution Effective Time, from the failure to an administrative or judicial challenge to the consummation of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this Agreementobtain such consent.
(e) Sellers and the Buyer Parties each agree that the terms and provisions of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d).
Appears in 1 contract
Samples: Merger Agreement (Rexworks Inc)
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 Company and the Acquiror shall apply use all reasonable efforts to the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers and the Buyer Parties shall each use commercially reasonable efforts to take, or to cause to be taken, all actions appropriate action, and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are things necessary, proper or advisable under applicable Legal Requirements Law to consummate and make effective the transactions contemplated by this Agreement and the Stock Option Agreement, (b) obtain all consents, licenses, permits, waivers, approvals, authorizations or otherwise are reasonably orders required under Law (including, without limitation, all foreign and domestic (federal, state and local) governmental and regulatory rulings and approvals and parties to obtaincontracts) required in connection with the authorization, in execution and delivery of this Agreement and the case Stock Option Agreement and the consummation by them of Sellersthe transactions contemplated hereby and thereby, (c) make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement, the Authorizations set forth in Schedule 3.05 to Stock Option Agreement and the Sellers' Disclosure Letter andMerger required under (i) the Securities Act and the Exchange Act and the rules and regulations thereunder, in and any other applicable federal or state securities laws, (ii) [the case of the Buyer PartiesHSR Act], (iii) applicable federal or state banking laws and (iv) any other applicable Law; provided that, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers Acquiror and the Buyer Parties Company shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the nonfiling party's outside antitrust counsel non-filing party and its advisors prior to filing and, if requested, shall to accept all reasonable additions, deletions or changes suggested in connection therewith. Sellers The Company and the Buyer Parties Acquiror shall furnish or cause to be furnished 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 obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.
(b) Sellers . In case at any time after the Effective Time any further action is necessary or desirable to carry out the purposes of this Agreement, the proper officers and the Buyer Parties directors of each party to this Agreement shall each timely give, and shall cause their respective Subsidiaries, as applicable, to give, any notices to third Persons and shall use, and cause their respective Subsidiaries, as applicable, to use, commercially use all reasonable efforts to obtain, in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Lettertake all such necessary action.
(c) Sellers and the Buyer Parties shall each 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 transactions contemplated hereby, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby and (iv) the occurrence or nonoccurrence of any event that would be likely to cause any of the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such notice.
(d) Sellers and the Buyer Parties each agree to cooperate and use commercially reasonable efforts to eliminate the antitrust concern(s) of any Governmental Authority or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this Agreement.
(e) Sellers and the Buyer Parties each agree that the terms and provisions of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d).
Appears in 1 contract
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to the parties hereto from Each Merging Company and after the date of this Agreement until the Closingits Shareholders will use all reasonable efforts to:
(ai) Sellers and the Buyer Parties shall each use commercially reasonable efforts to take, or to cause to be taken, all actions appropriate action, and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are things necessary, proper or advisable under applicable Legal Requirements law to consummate and make effective the transactions contemplated by this Agreement;
(ii) obtain all consents, licenses, permits, waivers, approvals, authorizations or otherwise are reasonably orders required under law (including, without limitation, all foreign and domestic federal, state and local governmental and regulatory rulings and approvals and from parties to obtaincontracts) required in connection with the authorization, in execution and delivery of this Agreement and the case consummation by them of Sellersthe transactions contemplated by this Agreement, including, without limitation, the Authorizations set forth in Schedule 3.05 Merger; and
(iii) make all necessary filings, and thereafter make any other required submissions, with respect to the Sellers' Disclosure Letter and, in the case of the Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers this Agreement and the Buyer Parties shall Merger required under (A) the Securities Act and the Exchange Act and the rules and regulations thereunder, and any other applicable federal or state securities laws, (B) the Xxxx-Xxxxx-Xxxxxx Act (if applicable), and (C) any other applicable law. The Merging Companies and the Shareholders will cooperate with each other in connection with the making of all such filings, including providing copies of all such documents upon request to the nonfiling party's outside antitrust counsel non-filing parties and their advisors prior to filing and, if requested, shall to accept all reasonable additions, deletions or changes suggested in connection therewithwith such filings. Sellers Each Merging Company and the Buyer Parties shall its Shareholders will furnish or cause to be furnished 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 Statements and the Registration Statement) in connection with obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.
(b) Sellers . If at any time after the Effective Time any further action is necessary or desirable to carry out the purposes of this Agreement, then the proper officers and the Buyer Parties shall directors of each timely give, and shall cause their respective Subsidiaries, as applicable, party to give, any notices to third Persons and shall use, and cause their respective Subsidiaries, as applicable, to use, commercially this Agreement will use all reasonable efforts to obtain, in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Lettertake all such necessary action.
(c) Sellers and the Buyer Parties shall each 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 transactions contemplated hereby, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby and (iv) the occurrence or nonoccurrence of any event that would be likely to cause any of the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such notice.
(d) Sellers and the Buyer Parties each agree to cooperate and use commercially reasonable efforts to eliminate the antitrust concern(s) of any Governmental Authority or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this Agreement.
(e) Sellers and the Buyer Parties each agree that the terms and provisions of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d).
Appears in 1 contract
Appropriate Action; Consents; Filings. The covenants (a) Subject to the terms and conditions of this Agreement (including the limitations set forth in this Section 7.01 shall apply to 6.5), the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers and the Buyer Parties shall each will use commercially their respective reasonable best efforts to take, or to cause to be taken, all actions consummate and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are necessary, proper or advisable under applicable Legal Requirements or otherwise are reasonably required to obtain, in the case of Sellers, the Authorizations set forth in Schedule 3.05 to the Sellers' Disclosure Letter and, in the case of the Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers and the Buyer Parties shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the nonfiling party's outside antitrust counsel prior to filing and, if requested, shall accept all reasonable additions, deletions or changes suggested in connection therewith. Sellers and the Buyer Parties shall furnish or cause to be furnished all information required for any application or other filing to be made in connection with obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement.
(b) Sellers and the Buyer Parties shall each timely give, and shall cause their respective Subsidiaries, as applicable, to give, any notices to third Persons and shall use, and cause their respective Subsidiaries, as applicable, to use, commercially reasonable efforts to obtain, in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter.
(c) Sellers and the Buyer Parties shall each 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 transactions contemplated hereby, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to the consummation of effective the transactions contemplated hereby and to cause the conditions to the Merger set forth in Article VII to be satisfied, including using reasonable best efforts to accomplish the following: (ivi) the occurrence obtaining of all necessary actions or nonoccurrence of any event that would be likely to cause any of the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained non-actions, consents and approvals from Governmental Authorities necessary in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such notice.
(d) Sellers and the Buyer Parties each agree to cooperate and use commercially reasonable efforts to eliminate the antitrust concern(s) of any Governmental Authority or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is in effect and that restricts, prevents or prohibits connection with the consummation of the transactions contemplated 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 necessary in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, (ii) the obtaining of all other necessary consents, approvals or waivers from Third Parties, (iii) the defending of any lawsuits or other legal proceedings brought by a Governmental Authority from an antitrust perspective, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including the Merger, and (iv) 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 promptly (and in no event later than ten (10) Business Days following the date that this Agreement is executed) make and not withdraw its respective filings under the HSR Act, if any are required, and thereafter make any other applications and filings as reasonably determined to be required or advisable by Parent under applicable Antitrust Laws with respect to the transactions contemplated hereby, including the Merger.
(eb) Sellers and the Buyer Parties each agree that the terms and provisions Each of the Confidentiality Agreement are hereby incorporated herein parties agrees to use its reasonable best efforts to take (and to cause their Affiliates to take) promptly 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 reference any foreign or U.S. federal, state or local Governmental Authority, in each case with competent jurisdiction, so as to enable the parties to consummate the transactions contemplated by this Agreement, including the Merger, as promptly as practicable. Further, and for the avoidance of doubt, each party will use its reasonable best efforts to take (and to cause its Affiliates to take) any and all actions necessary in order to ensure that (x) no requirement for any non-action by or Consent or approval of any foreign or U.S. Governmental Authority with respect to any Antitrust Laws, (y) no decree, judgment, injunction, temporary restraining order or any other Order in any suit or proceeding with respect to any Antitrust Laws, and (z) no other matter relating to any Antitrust Laws would preclude consummation of the Merger by the Termination Date.
(c) Notwithstanding anything to the contrary in this Agreement, neither Parent nor Acquisition Sub shall be required to divest or hold separate, or otherwise take or commit to take any action that limits its freedom of action with respect to, or its ability to retain, any of Parent’s assets or businesses (other than the Company and its Subsidiaries), or any material portion thereof.
(d) Each of the parties hereto will furnish to outside counsel for the other such terms necessary information and provisions shall continue reasonable assistance as the other may reasonably request in full force connection with the preparation of any required governmental filings or submissions and effect until will cooperate in responding to any inquiry from a Governmental Authority, including (i) promptly informing the Closingother party of such inquiry, except as otherwise provided (ii) consulting in Section 11.02(d)advance before making any presentations or submissions to a Governmental Authority, (iii) giving the other party or its outside counsel the opportunity to attend and participate in any substantive meetings or discussions with any Governmental Authority, to the extent not prohibited by such Governmental Authority, and (iv) supplying outside counsel for each other with copies of all material correspondence, filings or communications between either party and any Governmental Authority with respect to this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Hardinge Inc)
Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers The Company, Parent and the Buyer Parties Merger Sub shall each use commercially their reasonable best efforts to (and shall cause their respective Subsidiaries and Affiliates to) (i) take, or to cause to be taken, all actions appropriate action and to do, or to cause to be done, all things, including the making of all necessary filings and thereafter any other required submissions, that are things necessary, proper or advisable under applicable Legal Requirements Applicable Law, including Antitrust and Foreign Investment Law, or otherwise are reasonably to consummate and make effective the Transactions as promptly as practicable, (ii) obtain from any Governmental Authorities any consents, licenses, permits, waivers, approvals, authorizations or orders required to obtainbe obtained by Parent, in Merger Sub or the case Company, or any of Sellerstheir respective Subsidiaries or Affiliates, the Authorizations set forth in Schedule 3.05 or to the Sellers' Disclosure Letter and, in the case of the Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers and the Buyer Parties shall cooperate with each other avoid any action or proceeding by any Governmental Authority (including those in connection with the making Antitrust and Foreign Investment Laws), in connection with the authorization, execution and delivery of this Agreement and the consummation of the Transactions, (iii)(A) as promptly as reasonably practicable, and in any event within ten (10) Business Days after the date hereof, make all such necessary filings, including providing copies and thereafter make any other required submissions, with respect to this Agreement required under the HSR Act, (B) as promptly as reasonably practicable, and in any event using reasonable best efforts to do so within the time periods set forth on Schedule A hereto, make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement required under any other applicable Antitrust and Foreign Investment Laws, and (C) as promptly as reasonably practicable after the date hereof, make all necessary filings, and thereafter make any other required submissions, with respect to this Agreement required under any other Applicable Law, and (iv) deliver required notices to, and the obtaining of all such documents required consents or waivers from, Third Parties (provided that the Company shall not be obligated to the nonfiling party's outside antitrust counsel prior make any payment or commercial concession to filing andany Third Party, if requestedor incur any liability, shall accept all reasonable additions, deletions as a condition to (or changes suggested in connection therewithwith) obtaining any such consent or waiver, unless such payment, concession or liability is requested in writing by Parent and is conditioned and effective only upon the Closing). Sellers The Company and the Buyer Parties Parent shall furnish or cause to be furnished each other all information required for any application or other filing to be made under the rules and regulations of any Applicable Law in connection with obtaining any such Authorizations. In particularthe Transactions.
(b) Without limiting the generality of anything contained in this Section 7.01, each of party hereto shall (to the Buyer Parties and Sellers agrees to extent not prohibited by Governmental Authority or Applicable Law) use commercially reasonable best efforts to (and shall cause its Subsidiaries and Affiliates to): (i) make their initial HSR Act filings in 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 Authority with respect of this transaction on or prior to the 21st day after Merger or any of the date hereof and other Transactions; (ii) to comply keep the other parties reasonably informed as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each status of any such request, inquiry, investigation, action or legal proceeding; (iii) promptly inform the other parties of any communication to or from any Governmental Authority regarding the approval of the parties further agrees that, except with the prior consent of ICO, in the case Merger or any of the Buyer Parties, other Transactions; (iv) respond as promptly as practicable to any additional requests for information received by any party from any Antitrust and Foreign Investment Authorities any other Governmental Authority with respect to the Transactions or Parent, in the case of Sellers, it will not filings contemplated by Section 7.01(a); and (v) (A) extend any obtain termination or expiration of the waiting period under the HSR Act and such other approvals, consents and clearances as may be necessary, proper or advisable under any Applicable Laws, including any other applicable Antitrust and Foreign Investment Laws and (B) enter into prevent the entry in any voluntary agreement action or proceeding brought by a Governmental Authority or any other Person of any Governmental Order which would prohibit, make unlawful or delay the consummation of the Transactions. To the extent not prohibited by Governmental Authority or Applicable Law, 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 Governmental Authority not to consummate the transactions contemplated by this Agreement.
(b) Sellers and the Buyer Parties shall each timely givefiling, and shall cause their respective Subsidiariesanalysis, as applicableappearance, to givepresentation, any notices to third Persons and shall usememorandum, and cause their respective Subsidiariesbrief, as applicableargument, to use, commercially reasonable efforts to obtain, in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter.
(c) Sellers and the Buyer Parties shall each give prompt notice to the other of (i) any notice opinion or other communication from any Person alleging that the consent of such Person is proposal made or may be required submitted in connection with the transactions contemplated herebyMerger or any of the other Transactions. In addition, (ii) except as may be prohibited by any notice Governmental Authority or by Applicable Law, in connection with any such request, inquiry, investigation, action or legal proceeding, each party hereto will permit Representatives of the other communication from 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 Authority in connection with such request, inquiry, investigation, action or legal proceeding.
(c) Notwithstanding anything to the transactions contemplated herebycontrary in this Agreement, in connection with obtaining any approval or consent related to any Applicable Law, Parent shall (iiiand shall cause its Subsidiaries, the Guarantors and their respective Affiliates to) cooperate in good faith with the Governmental Authorities and shall undertake (and cause its Subsidiaries, the Guarantors and their respective Affiliates to undertake) promptly any Actions commenced and all action to complete lawfully the Transactions as soon as practicable (but in any event prior to the End Date) and any and all action necessary or advisable to avoid, prevent, eliminate or remove the actual or threatened commencement of any Proceeding in writing againstany forum by or on behalf of any Governmental Authority or the issuance of any Governmental Order that would (or to obtain the agreement or consent of any Governmental Authority to the Transactions the absence of which would) delay, relating to or involving enjoin, prevent, restrain or otherwise affecting the Seller Companies or the Buyer Parties, that relate to prohibit the consummation of the transactions contemplated hereby Merger, including (i) proffering and consenting and/or agreeing to a Governmental Order or other agreement providing for the sale, licensing or other disposition, or the holding separate of, or other limitations or restrictions on, or limiting any freedom of action with respect to, particular assets, categories of assets or lines of business and (ivii) promptly effecting the occurrence disposition, licensing or nonoccurrence holding separate, of assets or lines of business, in each case, at such time as may be necessary to permit the lawful consummation of the Transactions on or prior to the End Date; provided, however, that in no event shall any event that would “portfolio company” (as such term is customarily defined in the private equity industry) affiliated with any Sponsor, be likely required to cause take any of the Closing Conditions foregoing actions. The entry by any Governmental Authority in any Proceeding of a Governmental Order permitting the consummation of the other party not Transactions but requiring any assets or lines of business to be satisfied sold, licensed or of any other change that is reasonably likely to cause a breach otherwise disposed or held separate thereafter (including the business and assets of the covenants of such party under this Agreement or to delay or impede the ability of either party to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(cAcquired Companies) shall cure not, individually, or in the aggregate (together with one or more other changes, events, circumstances, developments or facts) be deemed a failure to satisfy any breach of any representation or warranty of the party giving such notice contained condition specified in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such noticeArticle VIII.
(d) Sellers Parent shall be solely responsible for and the Buyer Parties each agree to cooperate pay all filing and use commercially reasonable efforts to eliminate the antitrust concern(s) of related fees and costs required in connection with obtaining any Governmental Authority consents or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation approvals of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is type described in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this AgreementSection 7.01.
(e) Sellers and the Buyer Parties each agree that the terms and provisions of the Confidentiality Agreement are hereby incorporated herein by reference and that such terms and provisions shall continue in full force and effect until the Closing, except as otherwise provided in Section 11.02(d).
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Appropriate Action; Consents; Filings. The covenants in this Section 7.01 shall apply to the parties hereto from and after the date of this Agreement until the Closing:
(a) Sellers Canyon shall promptly prepare and file with the Buyer SEC the Proxy Statement and shall use its commercially reasonable efforts to have the Proxy Statement cleared by the SEC as promptly as practicable after such filing, and Canyon shall thereafter mail or deliver the Proxy Statement to its Shareholders. Canyon shall notify Atna of the receipt of, and immediately provide to Atna 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) Atna shall, upon request, furnish Canyon with all information concerning Atna as may be reasonably necessary for inclusion in the Proxy Statement that may be furnished to the Shareholders.
(c) Upon the terms and subject to the conditions set forth in this Agreement, the Parties shall each use their commercially reasonable efforts to take, or to cause to be taken, all actions appropriate action, and to do, or to cause to be done, all thingsthings required under applicable 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) obtaining from any Governmental Bodies any Permits required to be obtained or made by Atna, MergerSub or Canyon in connection with the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated herein and (iii) making of all necessary filings filings, and thereafter making any other required submissions, that are necessarywith respect to this Agreement under any applicable Law, proper or advisable under applicable Legal Requirements or otherwise are reasonably including without limitation making any filings required to obtain, in the case of Sellers, the Authorizations set forth in Schedule 3.05 be made pursuant to the Sellers' Disclosure Letter andHSR Act; provided that Atna, in the case of the Buyer Parties, the Authorizations set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter. Sellers MergerSub and the Buyer Parties Canyon shall cooperate with each other in connection with the making of all such filings, including providing copies of all such documents to the nonfiling party's outside antitrust counsel non-filing Party and its advisors prior to filing and, if requested, shall accept and discussing all reasonable additions, deletions or changes suggested in connection therewith. Sellers Canyon, Atna and the Buyer Parties MergerSub shall furnish or cause to be furnished 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 obtaining any such Authorizations. In particular, each of the Buyer Parties and Sellers agrees to use commercially reasonable efforts to (i) make their initial HSR Act filings in respect of this transaction on or prior to the 21st day after the date hereof and (ii) to comply as expeditiously as possible with all lawful requests of Governmental Authorities for additional information and documents pursuant to the HSR Act. Each of the parties further agrees that, except with the prior consent of ICO, in the case of the Buyer Parties, or Parent, in the case of Sellers, it will not (A) extend any waiting period under the HSR Act or (B) enter into any voluntary agreement with any Governmental Authority not to consummate the transactions contemplated by this Agreement. Any and all filing fees in respect of such filings shall be paid 50% by Atna and 50% by Canyon.
(bd) Sellers and Except as the Buyer Parties shall each timely givemay otherwise agree, Canyon, on the one hand, and Atna and MergerSub, on the other, shall cause their respective Subsidiariesgive any notices required to be given by any of them, as applicable, to give, any notices to third Persons and shall useparties, and use (and in the case of Atna, cause MergerSub to use) their respective Subsidiariescommercially reasonable efforts to obtain at the earliest practicable date all third party consents, approvals or waivers required to be obtained by them, as applicable, to use, commercially reasonable efforts to obtain, in the case of Sellers, (x) the Third Person Consents set forth in Schedule 3.05 to the Sellers' Disclosure Letter and (y) if so requested in writing by Parent, any additional Third Party Consents set forth in Schedule 3.14 to the Sellers' Disclosure Letter, and, in the case of the Buyer Parties, the Third Person Consents set forth in Schedule 4.03 to the Buyer Parties' Disclosure Letter.
(c) Sellers and the Buyer Parties shall each 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 transactions contemplated hereby, (ii) any notice or other communication from any Governmental Authority in connection with the transactions contemplated hereby, (iii) any Actions commenced or threatened in writing against, relating to or involving or otherwise affecting the Seller Companies or the Buyer Parties, that relate to the consummation of the transactions contemplated hereby and (iv) the occurrence or nonoccurrence of any event that would be likely to cause any of the Closing Conditions of the other party not to be satisfied or of any other change that is reasonably likely to cause a breach of the covenants of such party under this Agreement or to delay or impede the ability of either party order to consummate the transactions contemplated by this Agreement or to fulfill their respective obligations set forth herein. No delivery of any notice pursuant to clause (iv) of this Section 7.01(c) shall cure any breach of any representation or warranty of the party giving such notice contained in this Agreement or otherwise limit or affect the remedies available hereunder to the party receiving such notice.
(d) Sellers and the Buyer Parties each agree to cooperate and use commercially reasonable efforts to eliminate the antitrust concern(s) of any Governmental Authority or Court. If there is no commercially reasonable solution to an administrative or judicial challenge to the consummation of the transactions, unless Sellers and Buyers both agree otherwise, the Sellers and Buyer Parties will contest any judicial action to block the consummation of the transactions and attempt to have vacated, lifted, reversed or overturned any Order (whether temporary, preliminary or permanent) of any Court or Governmental Authority that is in effect and that restricts, prevents or prohibits the consummation of the transactions contemplated by this Agreement.
(e) Sellers and Subject to the Buyer Parties each agree that the terms and provisions of Section 6.3(f), in the Confidentiality Agreement are hereby incorporated herein by reference and event that such terms and provisions either Canyon or Atna shall continue in full force and effect until the Closingfail to obtain any third-party consent, except as otherwise provided approval or waiver described in Section 11.02(d6.3(d), such Party shall use its commercially reasonable efforts, and shall take any such actions reasonably requested by the other Parties, to minimize any adverse effect that would result in a material impact upon Canyon and Atna or MergerSub and their respective businesses resulting, or which could reasonably be expected to result after the Effective Time, from the failure to obtain such consent, approval or waiver.
(f) Notwithstanding anything to the contrary herein, nothing in this Agreement shall require Atna or any of its 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 Canyon or its Subsidiaries or of Atna or its subsidiaries, (ii) enter into, amend or agree to enter into or amend, any Contracts of Canyon or its Subsidiaries or of Atna or its subsidiaries that would have an adverse effect that would result in a material impact on Atna or its operations of Canyon, (iii) otherwise waive, abandon or alter any material rights or obligations of Canyon or its Subsidiaries or of Atna or its subsidiaries, (iv) file or defend any lawsuit, appeal any judgment or 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 relates to Canyon or its assets or that is otherwise binding upon Canyon or its assets.
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