Appropriate Action; Consents; Filings. (a) In accordance with the terms and subject to the conditions of this Agreement (including Section 6.5), the parties hereto will use their respective reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby and to cause the conditions to the Merger set forth in Article VII to be satisfied as expeditiously as practicable (and in any event at least five (5) Business Days prior to the Outside Date), including using reasonable best efforts to accomplish the following: (i) the obtaining of all necessary or advisable actions or non-actions, waivers, Consents and approvals from Governmental Authorities necessary or advisable in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, the Non-Arriver Extraction and the Arriver Sale and the making of all necessary or advisable registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary or advisable to obtain an approval from, or to avoid any Action by, any Governmental Authority in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, the Non-Arriver Extraction and the Arriver Sale, (ii) the obtaining of all other necessary consents, approvals or waivers from Third Parties (provided that none of the Company, the Acquiring Parties or Merger Sub shall be required to make or agree to make any payment or accept any material conditions or obligations with respect thereto, except as expressly set forth in Section 6.10(c)), including in respect of the Non-Arriver Extraction and the Arriver Sale, (iii) the defending of any Actions, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed and (iv) the execution and delivery of any additional instruments necessary to consummate the Merger and any other transactions to be performed or consummated by such party in accordance with the terms of this Agreement and to carry out fully the purposes of this Agreement. (b) Each of the parties hereto shall promptly (and, in the case of filings required under the HSR Act, in no event later than fifteen (15) Business Days following the date hereof) (i) make and not withdraw any applicable filings under the HSR Act, and thereafter make any other applications and filings required or advisable under the Antitrust Laws or Investment Screening Laws of the jurisdictions set forth on Section 6.3(a) of the Company Disclosure Letter with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale, (ii) comply at the earliest practicable date with any request under the HSR Act for additional information (including responding to any “second request”), documents or other materials received by such party from the U.S. Federal Trade Commission, the Antitrust Division of the U.S. Department of Justice or from any other Governmental Authority under any Antitrust Laws or Investment Screening Laws in respect of any such filings with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale and (iii) act in good faith and reasonably cooperate with each other party in connection with any such filings (including, if requested by another party, considering in good faith all reasonable additions, deletions or changes suggested by the other party in connection therewith) and in connection with resolving any investigation or other inquiry of such agency or other Governmental Authority under any Antitrust Laws and Investment Screening Laws. In taking the foregoing actions, each of the Company and the Acquiring Parties shall act reasonably and as promptly as practicable. Notwithstanding anything in this Agreement to the contrary, obtaining any Third Party Consents or waivers pursuant to Section 6.3(a)(ii) above or otherwise, including any Consents required in connection with the Non-Arriver Extraction or the Arriver Sale, shall not be a condition to the obligations of any party to consummate the Merger. (c) Without limiting anything in this Section 6.3 (i) none of the parties hereto or their respective Affiliates shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby, except with the prior written consent of the other parties hereto and (ii) the Acquiring Parties and Merger Sub agree to take (and to cause their Affiliates to take) promptly any and all steps necessary or reasonably advisable or as may be required by any Governmental Authority to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws or Investment Screening Laws that may be required by any Governmental Authority so as to enable the parties to consummate the transactions contemplated by this Agreement, including the Merger, the Non-Arriver Extraction and the Arriver Sale as expeditiously as possible (and in any event at least five (5) Business Days prior to the Outside Date), including committing to and effecting, by consent decree, hold separate order, trust or otherwise, (A) selling, divesting, licensing or otherwise disposing of, or holding separate and agreeing to sell, divest, license or otherwise dispose of, any assets of the Company, the Acquiring Parties, Merger Sub or their respective Affiliates, (B) terminating, amending or assigning existing relationships and contractual rights and obligations, (C) requiring the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates to grant any right or commercial or other accommodation to, or enter into any material commercial contractual or other commercial relationship with, any Third Party and (D) imposing limitations on the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates with respect to how they own, retain, conduct or operate all or any portion of their respective businesses or assets (clauses (A) through (D) shall be referred to as “Remedy Actions”). Notwithstanding anything to the contrary set forth in this Section 6.3, the Acquiring Parties and Merger Sub shall not be required to commit or agree to, and the Company shall not be permitted to commit or agree to without the consent of the Acquiring Parties, any such Remedy Action contemplated by clause (ii) above to the extent any such Remedy Action contemplated by clause (ii) above (x) is not conditioned upon the consummation of the transactions contemplated by this Agreement or (y) would require, or cause to be taken, (1) any sale, divestiture, licensing or other disposal of, or other action with respect to, any assets or businesses of QUALCOMM Technology Licensing, (2) any sale, divestiture, licensing or other disposal of any assets or businesses of the Arriver Business, or any other action with respect to any assets or businesses of the Arriver Business, that would materially diminish or materially interfere with the benefits that QUALCOMM reasonably expects to receive from its ownership of the Arriver Business, (3) any sale or divestiture of any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a fair market value (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the economic impact determined with respect to any actions taken pursuant to the following clause (4), or (4) any other action (excluding sales or divestitures) with respect to any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a net negative economic impact (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the fair market value determined with respect to any actions taken pursuant to the foregoing clause (3). (d) 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 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 substantive meetings or discussions 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 either party and any Governmental Authority with respect to this Agreement; provided that, notwithstanding anything in this Agreement to the contrary, the Acquiring Parties shall determine the strategy to be pursued for obtaining and lead the effort to obtain all necessary actions or nonactions and consents from Governmental Authorities, including any related litigation and Remedy Actions, pursuant to any Antitrust Law in connection with the transactions contemplated by this Agreement, and the Company shall take all reasonably requested actions to support the Acquiring Parties in connection therewith. Notwithstanding anything to the contrary contained in this Agreement, the Acquiring Parties shall consult with the Company and consider in good faith the views of the Company in connection with all material communications with a Governmental Authority and strategy regarding the Antitrust Laws. (e) The Company and the Acquiring Parties, in their respective sole and absolute discretion, may (x) redact materials as necessary to comply with contractual arrangements address reasonable attorney client or other privilege or confidentiality concerns, exclude any information relating to Company valuation and similar matters relating to the transactions contemplated herein, and (y) designate any competitively sensitive material as “Outside Counsel Only Material” such that such materials and the information contained therein shall be given only to the outside counsel of the recipient and will not be disclosed to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel. (f) The Acquiring Parties and Merger Sub shall not, and shall not permit any of their controlled Affiliates to, (i) acquire or agree to acquire by merging or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests or (ii) take or agree to take any other action (including entering into or agreeing to enter into any material license, joint venture or other transaction), in each case that would reasonably be expected to (A) impose any material delay in the obtaining of, or increase the risk materially of not obtaining, approval from, or avoiding an Action by, any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period, (B) materially increase the risk of any Governmental Authority entering an Order prohibiting the consummation of the transactions contemplated by this Agreement or (C) otherwise materially delay or prevent the consummation of the transactions contemplated by this Agreement.

Appears in 2 contracts

Samples: Merger Agreement (Qualcomm Inc/De), Merger Agreement (Veoneer, Inc.)

Appropriate Action; Consents; Filings. (a) ~~In accordance with~~ Upon the terms and subject to the conditions of set forth in this ~~Agreement (including Section 6.5)~~Agreement, the ~~parties hereto will~~ Company and Parent shall and shall cause the other Company Entities and the other Parent Entities, respectively, to use its or their ~~respective~~ reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other ~~parties~~ party in doing, all things necessary, proper or advisable under applicable Law or pursuant to any Contract or agreement to consummate and make ~~effective~~ effective, as promptly as practicable, the Merger and the other transactions contemplated ~~hereby and~~ by this Agreement, including (i) the taking of all actions necessary to cause the conditions to ~~the Merger~~ Closing set forth in Article VII to be ~~satisfied as expeditiously as practicable~~ satisfied, (~~and in any event at least five (5) Business Days prior to the Outside Date), including using reasonable best efforts to accomplish the following: (i~~ii) the obtaining of all necessary ~~or advisable~~ actions or non-actions, waivers, ~~Consents~~ consents and approvals from Governmental Authorities or other Persons necessary ~~or advisable~~ in connection with the consummation of the Merger and the other transactions contemplated by this ~~Agreement,~~ Agreement (including the ~~Merger, the Non-Arriver Extraction and the Arriver Sale~~ Continuing Membership Application of Securities Corp) and the making of all necessary ~~or advisable~~ registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary ~~or advisable~~ to obtain an approval or waiver from, or to avoid ~~any Action~~ an action or proceeding by, any Governmental Authority or other Persons necessary in connection with the consummation of the Merger and the other transactions contemplated by this ~~Agreement,~~ Agreement (including ~~the Merger, the Non-Arriver Extraction~~ promptly responding to all requests by a Governmental Authority or other Person for additional information in support of any such filing or request for approval or waiver) and the Arriver Sale, (ii) the obtaining of all other necessary consents, approvals or waivers from Third Parties (provided that none of the Company, the Acquiring Parties or Merger Sub shall be required to make or agree to make any payment or accept any material conditions or obligations with respect thereto, except as expressly set forth in Section 6.10(c)), including in respect of the Non-Arriver Extraction and the Arriver Sale, (iii) the defending of any Actions, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed and (iv) the execution and delivery of any additional instruments necessary to consummate the Merger and ~~any~~ the other transactions ~~to be performed or consummated~~ contemplated by ~~such party in accordance with the terms of~~ this Agreement and to fully carry out ~~fully~~ the purposes of this Agreement. Without limitation to the foregoing, within 14 days of the execution of this Agreement, the Company will prepare and file Securities Corp’s Continuing Membership Application with FINRA pursuant to FINRA (NASD) Rule 1017 in connection with the Merger and the other transactions contemplated hereby. (b) Each of the parties hereto shall promptly (and, in the case of filings required under the HSR Act, in no event later than fifteen (15) Business Days following the date hereof) (i) make and not withdraw any applicable filings under the HSR Act, and thereafter make any other applications and filings required or advisable under the Antitrust Laws or Investment Screening Laws of the jurisdictions set forth on Section 6.3(a) of the Company Disclosure Letter with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale, (ii) comply at the earliest practicable date with any request under the HSR Act for additional information (including responding to any “second request”), documents or other materials received by such party from the U.S. Federal Trade Commission, the Antitrust Division of the U.S. Department of Justice or from any other Governmental Authority under any Antitrust Laws or Investment Screening Laws in respect of any such filings with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale and (iii) act in good faith and reasonably cooperate with each other party in In connection with ~~any such filings (including, if requested by another party, considering in good faith all reasonable additions, deletions or changes suggested by~~ and without limiting the other party in connection therewith) and in connection with resolving any investigation or other inquiry of such agency or other Governmental Authority under any Antitrust Laws and Investment Screening Laws. In taking the foregoing actionsforegoing, each of Parent and the Company shall give (or shall cause the other Parent Entities or the other Company Entities, respectively, to give) any notices to third parties, and each of the Parent Entities and the ~~Acquiring Parties~~ Company shall ~~act reasonably~~ use, and as promptly as practicable. Notwithstanding anything in this Agreement to the contrary, obtaining any Third Party Consents or waivers pursuant to Section 6.3(a)(ii) above or otherwise, including any Consents required in connection with the Non-Arriver Extraction or the Arriver Sale, shall not be a condition to the obligations of any party to consummate the Merger. (c) Without limiting anything in this Section 6.3 (i) none of the parties hereto or their respective Affiliates shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby, except with the prior written consent of the other parties hereto and (ii) the Acquiring Parties and Merger Sub agree to take (and to cause ~~their Affiliates to take) promptly any and all steps necessary or reasonably advisable or as may be required by any Governmental Authority to avoid or eliminate~~ each and every impediment and obtain all Consents under any Antitrust Laws or Investment Screening Laws that may be required by any Governmental Authority so as to enable the parties to consummate the transactions contemplated by this Agreement, including the Merger, the Non-Arriver Extraction and the Arriver Sale as expeditiously as possible (and in any event at least five (5) Business Days prior to the Outside Date), including committing to and effecting, by consent decree, hold separate order, trust or otherwise, (A) selling, divesting, licensing or otherwise disposing of, or holding separate and agreeing to sell, divest, license or otherwise dispose of, any assets of the Company, the Acquiring Parties, Merger Sub or their respective Affiliates, (B) terminating, amending or assigning existing relationships and contractual rights and obligations, (C) requiring the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates to ~~grant~~ use, its or their reasonable best efforts to obtain any right or commercial or other accommodation to, or enter into any material commercial contractual or other commercial relationship with, any Third Party and (D) imposing limitations on the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates with respect to how they own, retain, conduct or operate all or any portion of their respective businesses or assets (clauses (A) through (D) shall be referred to as “Remedy Actions”). Notwithstanding anything to the contrary set forth in this Section 6.3, the Acquiring Parties and Merger Sub shall not be required to commit or agree to, and the Company shall not be permitted to commit or agree to without the consent of the Acquiring Parties, any such Remedy Action contemplated by clause (ii) above to the extent any such Remedy Action contemplated by clause (ii) above (x) is not conditioned upon the consummation of the transactions contemplated by this Agreement or (y) would require, or cause to be taken, (1) any sale, divestiture, licensing or other disposal of, or other action with respect to, any assets or businesses of QUALCOMM Technology Licensing, (2) any sale, divestiture, licensing or other disposal of any assets or businesses of the Arriver Business, or any other action with respect to any assets or businesses of the Arriver Business, that would materially diminish or materially interfere with the benefits that QUALCOMM reasonably expects to receive from its ownership of the Arriver Business, (3) any sale or divestiture of any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a fair market value (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party consents not covered by Section 6.5(a) that ~~is mutually selected by~~ are necessary, proper or advisable to consummate the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the economic impact determined with respect to any actions taken pursuant to the following clause (4), or (4) any other action (excluding sales or divestitures) with respect to any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a net negative economic impact (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the fair market value determined with respect to any actions taken pursuant to the foregoing clause (3). (d) Merger. 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 inquiry from a Governmental Authority, including ~~(i)~~ promptly informing the other ~~party~~ parties 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 substantive meetings or discussions 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 either party and any Governmental Authority with respect to this Agreement~~; provided that~~. To the extent reasonably practicable, ~~notwithstanding anything~~ the parties or their Representatives shall have the right to review in ~~this Agreement~~ advance and each of the parties will consult the others on, all the information relating to the ~~contrary~~other and each of their Affiliates that appears in any filing made with, ~~the Acquiring Parties shall determine the strategy to be pursued for obtaining and lead the effort to obtain all necessary actions~~ or ~~nonactions and consents from~~ written materials submitted to, any Governmental ~~Authorities, including any related litigation and Remedy Actions, pursuant to any Antitrust Law~~ Authority in connection with the Merger and the other transactions contemplated by this Agreement, except that confidential competitively sensitive business information may be redacted from such exchanges. To the extent reasonably practicable, none of the parties hereto shall, nor shall they permit their respective Representatives to, participate independently in any meeting or engage in any substantive conversation with any Governmental Authority in respect of any filing, investigation or other inquiry without giving the other party prior notice of such meeting or conversation and, to the extent permitted by applicable Law, without giving the other parties the opportunity to attend or participate (whether by telephone or in person) in any such meeting with such Governmental Authority. Notwithstanding the foregoing, obtaining any approval or consent from any third party pursuant to this Section 6.5(b) shall not be a condition to the obligations of Parent and Merger Sub to consummate the Merger. (c) Without limiting the generality of Section 6.5(a) and (b), the Company will use its reasonable best efforts to obtain the consents and approvals required under the Investment Advisers Act (including the SEC’s interpretive guidance thereof) to effect the assignment or continuation of the Advisory Contracts following the Closing. If consent of a Client in relation to an Advisory Contract is required under the Investment Advisers Act (including the SEC’s interpretive guidance thereof) or by such Advisory Contract as a result of the transactions contemplated by this Agreement, ~~and~~ as soon as reasonably practicable following the date of this Agreement (but in no event later than 30 days after the date of this Agreement), the Company shall ~~take all reasonably requested actions~~ send a written notice, substantially in the form attached hereto as Exhibit A (the “Initial Negative Consent Notice”). Within 45 days of sending the Initial Negative Consent Notice, the Company shall send a written notice to ~~support~~ Clients that received the ~~Acquiring Parties~~ Initial Negative Consent Notice reminding each such Client of each of the matters set forth in ~~connection therewith.~~ the Initial Negative Consent Notice. (d) Notwithstanding anything to the contrary ~~contained~~ in this Agreement, ~~the Acquiring Parties shall consult with the Company and consider in good faith the views of the Company~~ in connection with ~~all material communications~~ obtaining any approval or consent from any Person (other than any Governmental Authority) with ~~a Governmental Authority and strategy regarding~~ respect to the ~~Antitrust Laws. (e) The~~ Merger, none of the parties hereto, any of the other Company ~~and~~ Entities or any of the ~~Acquiring Parties~~other Parent Entities, in or any of the their respective ~~sole and absolute discretion~~Representatives, ~~may (x) redact materials as necessary~~ shall be obligated to ~~comply with contractual arrangements address reasonable attorney client~~ pay or commit to pay to such Person whose approval or consent is being solicited any cash or other ~~privilege~~ consideration, make any accommodation or ~~confidentiality concerns, exclude~~ commitment or incur any ~~information relating~~ liability or other obligation to ~~Company valuation and similar matters relating~~ such Person (unless expressly required by a written agreement that was entered into prior to the ~~transactions contemplated herein, and (y) designate any competitively sensitive material as “Outside Counsel Only Material”~~ date hereof with such Person). The parties shall cooperate with respect to accommodations that may be requested or appropriate to obtain such materials and the information contained therein shall be given only to the outside counsel of the recipient and will not be disclosed to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counselconsents. (f) The Acquiring Parties and Merger Sub shall not, and shall not permit any of their controlled Affiliates to, (i) acquire or agree to acquire by merging or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests or (ii) take or agree to take any other action (including entering into or agreeing to enter into any material license, joint venture or other transaction), in each case that would reasonably be expected to (A) impose any material delay in the obtaining of, or increase the risk materially of not obtaining, approval from, or avoiding an Action by, any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period, (B) materially increase the risk of any Governmental Authority entering an Order prohibiting the consummation of the transactions contemplated by this Agreement or (C) otherwise materially delay or prevent the consummation of the transactions contemplated by this Agreement.

Appears in 2 contracts

Samples: Merger Agreement (Investors Capital Holdings LTD), Merger Agreement (RCS Capital Corp)

Appropriate Action; Consents; Filings. (a) ~~In accordance with~~ Subject to Section 5.5(b) the ~~terms and subject to the conditions of this Agreement (including Section 6.5)~~Company, the ~~parties hereto will~~ Parent and Merger Sub shall use their ~~respective reasonable~~ best efforts to (i) take, or cause to be taken, all ~~actions,~~ appropriate action and to do, or cause to be done, and to assist and cooperate with the ~~other~~ parties in doing, all things necessary, proper or advisable under applicable Law or otherwise to consummate and make effective the Merger and the other transactions contemplated ~~hereby and~~ by this Agreement as promptly as practicable, (ii) take such actions as may be required to cause the ~~conditions~~ expiration of the notice periods under Competition Laws with respect to such transactions as promptly as practicable after the ~~Merger set forth in Article VII~~ execution of this Agreement, (iii) obtain from any Governmental Entities any consents, licenses, permits, waivers, approvals, authorizations or Orders required to be ~~satisfied as expeditiously as practicable (and~~ obtained by the Parent, Merger Sub or the Company, or any of their respective Subsidiaries in ~~any event at least five (5)~~ order to effect the Closing by not later than two Business Days prior to the Outside Date (or if extended, the Extended Outside Date or Second Extended Outside Date, as then applicable) and to avoid any action or proceeding by any Governmental Entity (including those in connection with Competition Laws), including using reasonable best efforts to accomplish the following: (i) the obtaining of all necessary or advisable actions or non-actions, waivers, Consents and approvals from Governmental Authorities necessary or advisable in connection with the ~~consummation~~ authorization, execution and delivery of the transactions contemplated by this Agreement, including the Merger, the Non-Arriver Extraction and the Arriver Sale and the making of all necessary or advisable registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary or advisable to obtain an approval from, or to avoid any Action by, any Governmental Authority in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, the Non-Arriver Extraction and the Arriver Sale, (ii) the obtaining of all other necessary consents, approvals or waivers from Third Parties (provided that none of the Company, the Acquiring Parties or Merger Sub shall be required to make or agree to make any payment or accept any material conditions or obligations with respect thereto, except as expressly set forth in Section 6.10(c)), including in respect of the Non-Arriver Extraction and the Arriver Sale, (iii) the defending of any Actions, whether judicial or administrative, challenging this Agreement or and the consummation of the transactions contemplated hereby, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed and~~ (iv) cause the ~~execution and delivery~~ satisfaction of ~~any additional instruments necessary~~ all conditions set forth in Article 6, (v) vigorously defend all lawsuits or other legal, regulatory or other proceedings to ~~consummate the Merger and any other transactions to be performed~~ which it is a party challenging or ~~consummated by such party in accordance with the terms of~~ affecting this Agreement ~~and to carry out fully~~ or the ~~purposes~~ consummation of the transactions contemplated by this Agreement. , in each case until the issuance of a final, non-appealable Order, (bvi) ~~Each~~ seek to have lifted or rescinded any injunction or restraining order which may adversely affect the ability of the parties hereto shall promptly (and, in the case of filings required under the HSR Act, in no event later than fifteen (15) Business Days following the date hereof) (i) make and not withdraw any applicable filings under the HSR Act, and thereafter make any other applications and filings required or advisable under the Antitrust Laws or Investment Screening Laws of the jurisdictions set forth on Section 6.3(a) of the Company Disclosure Letter with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale, (ii) comply at the earliest practicable date with any request under the HSR Act for additional information (including responding to any “second request”), documents or other materials received by such party from the U.S. Federal Trade Commission, the Antitrust Division of the U.S. Department of Justice or from any other Governmental Authority under any Antitrust Laws or Investment Screening Laws in respect of any such filings with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale and (iii) act in good faith and reasonably cooperate with each other party in connection with any such filings (including, if requested by another party, considering in good faith all reasonable additions, deletions or changes suggested by the other party in connection therewith) and in connection with resolving any investigation or other inquiry of such agency or other Governmental Authority under any Antitrust Laws and Investment Screening Laws. In taking the foregoing actions, each of the Company and the Acquiring Parties shall act reasonably and as promptly as practicable. Notwithstanding anything in this Agreement to the contrary, obtaining any Third Party Consents or waivers pursuant to Section 6.3(a)(ii) above or otherwise, including any Consents required in connection with the Non-Arriver Extraction or the Arriver Sale, shall not be a condition to the obligations of any party to consummate the Merger. (c) Without limiting anything in this Section 6.3 (i) none of the parties hereto or their respective Affiliates shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby, ~~except~~ in each case until the issuance of a final, non-appealable Order, (vii) as promptly as practicable, make or cause to be made all necessary applications and filings (and in any event file all required HSR Act notifications within ten Business Days after the date hereof), and thereafter make any other required submissions, and pay any fees due in connection therewith (all such fees to be solely the responsibility of, and to be paid by, the Parent and Merger Sub), with respect to this Agreement or the Merger required under any Competition Laws, and (viii) as promptly as reasonably practicable after the date hereof, 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 Merger required under any Competition Laws and any other applicable Law. The Company, the Parent and Merger Sub shall cooperate with each other in connection with (x) preparing and filing the Proxy Statement and any Other Filings, (y) determining whether any action by or in respect of, or filing with, any Governmental Entity is required, in connection with the ~~prior written~~ consummation of the Merger and (z) seeking any such actions, consents, approvals or waivers or making any such filings. The Company and the Parent shall furnish to 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 contemplated by this Agreement. No parties to this Agreement shall consent to any voluntary delay of the Closing at the behest of any Governmental Entity without the consent of the other parties ~~hereto~~ to this Agreement, which consent shall not be unreasonably withheld, delayed or conditioned. The Parent and ~~(ii)~~ the ~~Acquiring Parties and Merger Sub agree~~ Company shall not, except as may be consented to in writing by the other party, directly or indirectly through one or more of their respective affiliates, take ~~(and~~ any action, including acquiring or making any investment in any corporation, partnership, limited liability company or other business organization or any division or assets thereof, that would reasonably be expected to cause ~~their Affiliates~~ a material delay in the satisfaction of the conditions contained in Article 6 or the consummation of the Merger. (b) Notwithstanding anything to the contrary in Section 5.5(a), the Parent agrees to use its best efforts to take~~) promptly~~ , or cause to be taken, any and all steps and to make, or cause to be made, any and all undertakings necessary ~~or reasonably advisable or as may be required by any Governmental Authority~~ to resolve, avoid or eliminate each and every impediment ~~and obtain all Consents~~ under any ~~Antitrust Laws or Investment Screening Laws~~ Competition Law that may be ~~required~~ asserted by any Governmental ~~Authority~~ Entity with respect to the Merger so as to enable the ~~parties~~ Closing to ~~consummate the transactions contemplated by this Agreement, including the Merger, the Non-Arriver Extraction and the Arriver Sale~~ occur as ~~expeditiously~~ promptly as ~~possible~~ reasonably practicable (and in any ~~event at least five (5) Business Days prior to~~ event, no later than the Second Extended Outside Date), including (A) proposing, negotiating, committing to to, and effecting, by consent decree, hold separate order, ~~trust~~ or otherwise, ~~(A) selling, divesting, licensing or otherwise disposing of, or holding separate and agreeing to sell, divest, license or otherwise dispose of, any assets of~~ the Company, the Acquiring Parties, Merger Sub or their respective Affiliates, (B) terminating, amending or assigning existing relationships and contractual rights and obligations, (C) requiring the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates to grant any right or commercial or other accommodation to, or enter into any material commercial contractual or other commercial relationship with, any Third Party and (D) imposing limitations on the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates with respect to how they own, retain, conduct or operate all or any portion of their respective businesses or assets (clauses (A) through (D) shall be referred to as “Remedy Actions”). Notwithstanding anything to the contrary set forth in this Section 6.3, the Acquiring Parties and Merger Sub shall not be required to commit or agree to, and the Company shall not be permitted to commit or agree to without the consent of the Acquiring Parties, any such Remedy Action contemplated by clause (ii) above to the extent any such Remedy Action contemplated by clause (ii) above (x) is not conditioned upon the consummation of the transactions contemplated by this Agreement or (y) would require, or cause to be taken, (1) any sale, divestiture, licensing or ~~other disposal of, or other action with respect to, any assets or businesses of QUALCOMM Technology Licensing, (2) any sale, divestiture, licensing or other disposal~~ disposition of any ~~assets~~ assets, properties or businesses of the Arriver Business, or any other action with respect to any assets or businesses of the Arriver Business, that would materially diminish or materially interfere with the benefits that QUALCOMM reasonably expects to receive from its ownership of the Arriver Business, (3) any sale or divestiture of any assets or businesses of QUALCOMM Company or any of its Subsidiaries, or (B) accepting any operational restrictions or otherwise taking or committing to take actions that limit the Parent’s or any Parent Subsidiary’s freedom of action with respect to, or its ability to retain, any ~~assets~~ of the assets, properties, licenses, rights, product lines, operations or businesses of the Company or any of its ~~Subsidiaries~~Subsidiaries in each case, as may be required in order to avoid the entry of, or to effect the lifting or dissolution of, any injunction, temporary restraining order, or other Order in any suit or proceeding, which would otherwise have the effect of preventing or delaying the Closing, as applicable; provided, however, that neither Parent nor any Parent Subsidiary shall be required to propose, negotiate, commit to, effect, or accept any of the actions specified in Section 5.5(b)(A) or 5.5(b)(B)if such actions would reasonably be expected to have, individually or in the aggregate, ~~have~~ a ~~fair market value (measured at~~ material adverse effect on the ~~time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith~~business, ~~which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c)~~ operations or financial condition of the Company ~~Disclosure Letter less~~ and its subsidiaries, taken as a whole. In addition, Parent shall use its best efforts to defend through litigation on the ~~amount~~ merits any claim asserted before any court or administrative body with applicable jurisdiction by any party in order to avoid entry of, or to have vacated or terminated, any Order (whether temporary, preliminary or permanent) that would prevent the Closing from occurring on or prior to the Second Extended Outside Date (as it may be extended). (c) The Company and the Parent shall give (or shall cause their respective Subsidiaries to give) any notices to Third Parties, and use, and cause their respective Subsidiaries to use, commercially reasonable efforts to obtain the Third Party consents, approvals or waivers identified on Schedule 5.5(c) and the Company and Merger Sub shall coordinate and cooperate in seeking any such consents, approvals or waivers. In the event that either party shall fail to obtain any Third Party consent described in the first sentence of this Section 5.5(c) such party shall take any such actions reasonably requested by the other party hereto (at such other party’s sole cost and expense), to minimize any adverse effect upon the Company and the Parent, their respective Subsidiaries, and their respective businesses resulting, or which would reasonably be expected to result, after the Effective Time, from the failure to obtain such consent. (d) Without limiting the generality of anything contained in this Section 5.5, each party hereto shall: (i) give the other parties prompt notice of the ~~economic impact determined~~ making or commencement of any request, inquiry, Investigation, action or Proceeding by or before any Governmental Entity with respect to the Merger or any ~~actions taken pursuant~~ of the other transactions contemplated by this Agreement; (ii) keep the other parties informed as to the ~~following clause~~ status of any such request, inquiry, Investigation, action or Proceeding; (4)iii) promptly inform the other parties of any communication to or from any Governmental Entity regarding the Merger or any of the other transactions contemplated by this Agreement; and (iv) promptly provide to the other parties copies of any written communications received or provided by such party, ~~or (4) any other action (excluding sales or divestitures) with respect to any assets or businesses of QUALCOMM~~ or any of its Subsidiaries, from or to any Governmental Entity with respect to the Merger or any ~~assets or businesses~~ of the Company or its Subsidiaries, that individually or in the aggregate, have a net negative economic impact (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the fair market value determined with respect to any actions taken pursuant to the foregoing clause (3). (d) 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 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 substantive meetings or discussions 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 either party and any Governmental Authority with respect to this Agreement; provided that, notwithstanding anything in this Agreement to the contrary, the Acquiring Parties shall determine the strategy to be pursued for obtaining and lead the effort to obtain all necessary actions or nonactions and consents from Governmental Authorities, including any related litigation and Remedy Actions, pursuant to any Antitrust Law in connection with the transactions contemplated by this Agreement, . Each party hereto will consult and the Company shall take all reasonably requested actions to support the Acquiring Parties in connection therewith. Notwithstanding anything to the contrary contained in this Agreement, the Acquiring Parties shall consult cooperate with the ~~Company~~ other parties and will consider in good faith the views of the ~~Company~~ other parties in connection with ~~all material communications~~ any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with a the Merger or any of the other transactions contemplated by this Agreement. In addition, except as may be prohibited by any Governmental ~~Authority~~ Entity or by any Law, in connection with any such request, inquiry, Investigation, action or Proceeding, each party hereto will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, Investigation, action or Proceeding and ~~strategy regarding the Antitrust Laws~~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 Proceeding. (e) ~~The~~ Nothing contained in this Agreement shall give the Parent or Merger Sub, directly or indirectly, the right to control or direct the operations of the Company and the Acquiring Parties, in their respective sole and absolute discretion, may (x) redact materials as necessary to comply with contractual arrangements address reasonable attorney client or other privilege or confidentiality concerns, exclude any information relating to Company valuation and similar matters relating prior to the ~~transactions contemplated herein, and (y) designate any competitively sensitive material as “Outside Counsel Only Material” such that such materials and~~ consummation of the ~~information contained therein shall be given only~~ Merger. Prior to the ~~outside counsel~~ Effective Time, the Company shall exercise, consistent with the terms and conditions of ~~the recipient~~ this Agreement, complete unilateral control and ~~will not be disclosed to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or~~ supervision over its ~~legal counsel~~business operations. (f) Prior to the Effective Time, the Company shall use its reasonable best efforts to cause the Company Representatives to, provide all customary cooperation, including provision of customary financial information, that is reasonably requested by Parent or Merger Sub in connection with any third-party debt financing obtained by Merger Sub for the purpose of financing the Merger (it being understood that the receipt of any such debt financing is not a condition to the Merger); provided, however, that (i) no such cooperation shall be required to the extent it would (A) unreasonably disrupt the conduct of the Company’s business or (B) require the Company or the Company Subsidiaries to incur any fees, expenses or other liability prior to the Effective Time for which it is not promptly reimbursed or simultaneously indemnified and (ii) the Company and the Company Subsidiaries shall not be required to execute any credit or security documentation or similar agreement prior to the Effective Time. (g) The ~~Acquiring Parties~~ Company shall use reasonable best efforts to deliver to Parent and Merger Sub at least three Business Days’ (or such later day as shall ~~not~~be reasonably practicable) prior to the Effective Time a customary payoff letter with respect to the Credit Agreement, dated as of March 25, 2013, among the Company, Credit Suisse AG, as administrative agent, collateral agent, L/C issuer and swingline lender, and the lenders from time to time party thereto (as amended, supplemented, modified, refinanced or replaced, the “Existing Loan Agreement”). The Company shall ~~not permit~~ use reasonable best efforts to facilitate the termination and repayment in full of all obligations under the Existing Loan Agreement, and the release of any liens and termination of ~~their controlled Affiliates to~~all guarantees in connection therewith, at, and subject to the occurrence of, the Effective Time; provided that the Company shall have the necessary funds on hand, or shall have received from Parent the funds necessary, to pay in full such obligations. Parent shall reimburse the Company for any out-of-pocket expenses incurred by the Company pursuant to this Section 5.5(g). (h) The Company shall use reasonable best efforts to cooperate with Parent and Merger Sub in connection with (i) ~~acquire~~ the replacement, backstopping or ~~agree to acquire by merging or consolidating with~~amendment, ~~or by purchasing a portion~~ as of the ~~assets~~ Effective Date, of outstanding financial guaranties, letters of credit, letters of guaranty, surety bonds and other similar instruments and obligations of the Company and the Company Subsidiaries, including granting any waivers in respect thereof and facilitating the migration of such financial products to the facilities of Parent or ~~equity in, or by any other manner, any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests or~~ its affiliates and (ii) ~~take~~ the satisfaction or ~~agree to take any other action~~ amendment, as of the Effective Date, of derivative financial instruments or arrangements (including ~~entering into or agreeing to enter into any material license~~swaps, ~~joint venture or other transaction~~caps, floors, futures, forward contracts, option agreements), in each case ~~that would~~ as reasonably ~~be expected~~ requested by Parent. Parent shall reimburse the Company for any out-of-pocket expenses incurred by the Company pursuant to (A) impose any material delay in the obtaining of, or increase the risk materially of not obtaining, approval from, or avoiding an Action by, any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period, (B) materially increase the risk of any Governmental Authority entering an Order prohibiting the consummation of the transactions contemplated by this Agreement or (C) otherwise materially delay or prevent the consummation of the transactions contemplated by this AgreementSection 5.5(h).

Appears in 2 contracts

Samples: Merger Agreement (Orbitz Worldwide, Inc.), Merger Agreement (Expedia, Inc.)

Appropriate Action; Consents; Filings. (a) ~~In accordance with~~ Subject to the terms and ~~subject to the~~ conditions of this ~~Agreement (including Section 6.5)~~Agreement, the parties hereto will cooperate with each other and use (and will cause their respective Subsidiaries to use) their respective reasonable best efforts to ~~take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to~~ consummate ~~and make effective~~ the transactions contemplated ~~hereby~~ by this Agreement prior to the Termination Date and to cause the conditions to the Merger set forth in Article ~~VII~~ VI to be satisfied as ~~expeditiously~~ promptly as reasonably practicable ~~(and in any event at least five (5) Business Days~~ prior to the ~~Outside~~ Termination Date), including using reasonable best efforts to accomplish the ~~following~~following as promptly as reasonably practicable prior to the Termination Date: (i) the obtaining of all ~~necessary or advisable~~ actions or non-actions, consents, approvals, registrations, waivers, ~~Consents~~ permits, authorizations, orders, expirations or terminations of waiting periods and ~~approvals~~ other confirmations from any Governmental ~~Authorities necessary~~ Authority or other Person that are or may become necessary, proper or advisable in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, ; (ii) the ~~Non-Arriver Extraction~~ preparation and ~~the Arriver Sale and the~~ making of all ~~necessary or advisable registrations~~ registrations, filings, forms, notices, petitions, statements, submissions of information, applications and ~~filings~~ other documents (including filings with Governmental Authorities) that are or may become necessary, ~~if any) and the taking of all reasonable steps as may be necessary~~ proper or advisable ~~to obtain an approval from, or to avoid any Action by, any Governmental Authority~~ in connection with the consummation of the transactions contemplated by this Agreement, including the Merger~~, the Non-Arriver Extraction and the Arriver Sale,~~ ; (iiiii) the ~~obtaining~~ taking of all steps as may be necessary, proper or advisable to obtain an approval from, or to avoid a Proceeding by, any Governmental Authority or other ~~necessary consents, approvals or waivers from Third Parties (provided that none~~ Person in connection with the consummation of the Company, the Acquiring Parties or Merger Sub shall be required to make or agree to make any payment or accept any material conditions or obligations with respect thereto, except as expressly set forth in Section 6.10(c))transactions contemplated by this Agreement, including ~~in respect of~~ the ~~Non-Arriver Extraction and the Arriver Sale,~~ Merger; (~~iii~~iv) the defending of any ~~Actions~~lawsuits or other Proceedings, whether judicial or administrative, challenging this Agreement or that would otherwise prevent or delay the consummation of the transactions contemplated ~~hereby~~by this Agreement, including the Merger, performed or consummated by each party in accordance with the ~~Non-Arriver Extraction and the Arriver Sale~~ terms of this Agreement, including seeking to have any ~~stay or~~ stay, temporary restraining order or injunction entered by any court or other Governmental Authority vacated or ~~reversed~~ reversed; and (ivv) the execution and delivery of any additional instruments ~~necessary to consummate the Merger and any other transactions to be performed~~ that are 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 promptly (and~~may become reasonably necessary, in the case of filings required under the HSR Act, in no event later than fifteen (15) Business Days following the date hereof) (i) make and not withdraw any applicable filings under the HSR Act, and thereafter make any other applications and filings required proper or advisable under the Antitrust Laws or Investment Screening Laws of the jurisdictions set forth on Section 6.3(a) of the Company Disclosure Letter with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale, (ii) comply at the earliest practicable date with any request under the HSR Act for additional information (including responding to any “second request”), documents or other materials received by such party from the U.S. Federal Trade Commission, the Antitrust Division of the U.S. Department of Justice or from any other Governmental Authority under any Antitrust Laws or Investment Screening Laws in respect of any such filings with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale and (iii) act in good faith and reasonably cooperate with each other party in connection with any such filings (including, if requested by another party, considering in good faith all reasonable additions, deletions or changes suggested by the other party in connection therewith) and in connection with resolving any investigation or other inquiry of such agency or other Governmental Authority under any Antitrust Laws and Investment Screening Laws. In taking the foregoing actions, each of the Company and the Acquiring Parties shall act reasonably and as promptly as practicable. Notwithstanding anything in this Agreement to the contrary, obtaining any Third Party Consents or waivers pursuant to Section 6.3(a)(ii) above or otherwise, including any Consents required in connection with the Non-Arriver Extraction or the Arriver Sale, shall not be a condition to the obligations of any party to consummate the Merger. (c) Without limiting anything in this Section 6.3 (i) none of the parties hereto or their respective Affiliates shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby, except with the prior written consent of the other parties hereto and (ii) the Acquiring Parties and Merger Sub agree to take (and to cause their Affiliates to take) promptly any and all steps necessary or reasonably advisable or as may be required by any Governmental Authority to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws or Investment Screening Laws that may be required by any Governmental Authority so as to enable the parties to consummate the transactions contemplated by this Agreement, including the Merger, and to carry out fully the ~~Non-Arriver Extraction~~ purposes of this Agreement. Each of the parties hereto shall, in consultation and cooperation with the ~~Arriver Sale~~ other parties and as ~~expeditiously~~ promptly as ~~possible (and~~ reasonably practicable, but in any event ~~at least five~~ within ten (510) Business Days ~~prior to~~ after the ~~Outside Date)~~date of this Agreement, ~~including committing to~~ make its respective filings under the HSR Act, and ~~effecting,~~ make any other applications and filings as reasonably determined by consent decree, hold separate order, trust or otherwise, (A) selling, divesting, licensing or otherwise disposing of, or holding separate and agreeing to sell, divest, license or otherwise dispose of, any assets of the Company, the Acquiring Parties, Merger Sub or their respective Affiliates, (B) terminating, amending or assigning existing relationships and contractual rights and obligations, (C) requiring the Acquiring Parties, Merger Sub, the Company ~~or any of their respective Affiliates to grant any right or commercial or~~ and Parent under other accommodation to, or enter into any material commercial contractual or other commercial relationship with, any Third Party and (D) imposing limitations on the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates applicable Antitrust Laws with respect to ~~how they own~~the transactions contemplated by this Agreement, ~~retain~~as promptly as practicable, ~~conduct or operate~~ but in no event later than as required by Law. Parent shall pay all or filing fees and other charges for the filings required under any ~~portion of their respective businesses or assets (clauses (A) through (D) shall be referred to as “Remedy Actions”)~~Antitrust Law by the Company and Parent. Notwithstanding anything to the contrary ~~set forth~~ contained in this ~~Section 6.3~~Agreement, without the ~~Acquiring Parties and Merger Sub shall not be required to commit or agree to~~prior written consent of Parent, ~~and~~ none of the Company ~~shall not be permitted~~ or any of its Subsidiaries or Affiliates will grant or offer to ~~commit~~ grant any accommodation or ~~agree~~ concession (financial or otherwise), or make any payment, to ~~without the~~ any third party (other than filing fees to any Governmental Authority) in connection with seeking or obtaining its consent ~~of the Acquiring Parties, any such Remedy Action contemplated by clause (ii) above~~ to ~~the extent any such Remedy Action contemplated by clause (ii) above (x) is not conditioned upon the consummation of~~ the transactions contemplated by this Agreement or (y) would require, or cause to be taken, (1) any sale, divestiture, licensing or other disposal of, or other action with respect to, any assets or businesses of QUALCOMM Technology Licensing, (2) any sale, divestiture, licensing or other disposal of any assets or businesses of the Arriver Business, or any other action with respect to any assets or businesses of the Arriver Business, that would materially diminish or materially interfere with the benefits that QUALCOMM reasonably expects to receive from its ownership of the Arriver Business, (3) any sale or divestiture of any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a fair market value (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the economic impact determined with respect to any actions taken pursuant to the following clause (4), or (4) any other action (excluding sales or divestitures) with respect to any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a net negative economic impact (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the fair market value determined with respect to any actions taken pursuant to the foregoing clause (3)Agreement. (db) ~~Each~~ In connection with and without limiting the efforts referenced in Section 5.4(a), each of the parties hereto will (i) 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~~ filings, submissions or ~~submissions~~ other documents; (ii) give the other reasonable prior notice of any such filing, submission or other document and, to the extent reasonably practicable, of any communication with or from any Governmental Authority regarding the transactions contemplated by this Agreement, and ~~will~~ permit the other to review and discuss in advance, and consider in good faith the views, and secure the participation, of the other in connection with any such filing, submission, document or communication; and (iii) cooperate in responding as promptly as reasonably practicable to any investigation or other inquiry from a Governmental ~~Authority~~Authority or in connection with any Proceeding initiated by a Governmental Authority or private party, including ~~(i) promptly~~ informing the other party as soon as practicable of any such ~~inquiry~~investigation, ~~(ii)~~ inquiry or Proceeding, and consulting in ~~advance~~ advance, to the extent practicable, before making any presentations or submissions to a Governmental Authority, ~~(iii) giving~~ or, in connection with any Proceeding initiated by a private party, to any other Person. In addition, each of the parties hereto will give reasonable prior notice to and consult with the other ~~party the opportunity to attend and participate~~ in advance of any meeting, conference or substantive ~~meetings or discussions~~ communication with any Governmental Authority, or, in connection with any Proceeding by a private party, with any other Person, and to the extent not prohibited by ~~such~~ applicable Law or by the applicable Governmental Authority or other Person, and ~~(iv) supplying each~~ to the extent reasonably practicable, not participate or attend any meeting or conference, or engage in any substantive communication, with any Governmental Authority or such other Person in respect of the transactions contemplated by this Agreement without the other party, and in the event one party is prohibited from, or unable to participate, attend or engage in, any such meeting, conference or communication, keep such party apprised with respect thereto. Each party shall furnish to the other copies of all ~~material correspondence~~filings, ~~filings or~~ submissions, correspondence and communications between ~~either party~~ it and its Affiliates and their respective Representatives, on the one hand, and any Governmental Authority or members of any Governmental Authority’s staff (or any other Person in connection with any Proceeding initiated by a private party), on the other hand, with respect to this Agreement; provided that, notwithstanding anything in this Agreement to the contrary, the Acquiring Parties shall determine the strategy to be pursued for obtaining and lead the effort to obtain all necessary actions or nonactions and consents from Governmental Authorities, including any related litigation and Remedy Actions, pursuant to any Antitrust Law in connection with the transactions contemplated by this Agreement. Each party may, as it deems advisable and ~~the Company shall take all~~ necessary, reasonably ~~requested actions to support the Acquiring Parties in connection therewith. Notwithstanding anything~~ designate material provided to the contrary contained in this Agreement, the Acquiring Parties shall consult with the Company and consider in good faith the views of the Company in connection with all material communications with a Governmental Authority and strategy regarding the Antitrust Laws. (e) The Company and the Acquiring Parties, in their respective sole and absolute discretion, may (x) redact materials as necessary to comply with contractual arrangements address reasonable attorney client or other privilege or confidentiality concerns, exclude any information relating to Company valuation and similar matters relating to the transactions contemplated herein, and (y) designate any competitively sensitive material party as “Outside Counsel Only Material,” ~~such that such materials~~ and also may reasonably redact the information contained therein shall be given only to the outside counsel of the recipient and will not be disclosed to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel. (f) The Acquiring Parties and Merger Sub shall not, and shall not permit any of their controlled Affiliates to, (i) acquire or agree to acquire by merging or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests or (ii) take or agree to take any other action (including entering into or agreeing to enter into any material ~~license, joint venture or other transaction), in each case that would reasonably be expected~~ as necessary to (A) ~~impose any material delay~~ remove personally sensitive information, (B) remove references concerning the valuation of the Company and its Subsidiaries or Parent and its Subsidiaries conducted in connection with the approval and adoption of this Agreement and the negotiations and investigations leading thereto, (C) comply with contractual arrangements, (D) prevent the loss of a legal privilege or (E) comply with applicable Law. (c) The parties shall consult with each other with respect to obtaining ~~of, or increase the risk materially of not obtaining, approval from, or avoiding an Action by, any Governmental Authority~~ all permits and Consents necessary to consummate the transactions contemplated by this Agreement, including the Merger. (d) Each of the parties agrees that, between the date of this Agreement or and the ~~expiration or~~ earlier of the Effective Time and the termination of ~~any applicable waiting period, (B) materially increase the risk of any Governmental Authority entering an Order prohibiting the consummation of the transactions contemplated by~~ this Agreement in accordance with Section 7.1, it shall not, and shall ensure that none of its Subsidiaries shall, consummate, enter into any agreement providing for, or ~~(C) otherwise~~ announce, any investment, acquisition, divestiture or other business combination that would reasonably be expected to materially delay or prevent the consummation of the transactions contemplated by this Agreement.

Appears in 2 contracts

Samples: Merger Agreement (Exact Sciences Corp), Merger Agreement (Genomic Health Inc)

Appropriate Action; Consents; Filings. (a) ~~In accordance with~~ Subject to the terms and ~~subject to the~~ conditions of this Agreement (including the limitations set forth in Section ~~6.5~~6.6), the parties hereto will use their respective reasonable best efforts ~~to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable~~ to consummate and make effective the transactions contemplated hereby and to cause the conditions to the First Merger set forth in Article VII to be ~~satisfied as expeditiously as practicable (and in any event at least five (5) Business Days prior to the Outside Date)~~satisfied, including using reasonable best efforts to accomplish the following: (i) the obtaining of all necessary ~~or advisable~~ actions or non-actions, ~~waivers, Consents~~ consents and approvals from Governmental Authorities or other Persons necessary ~~or advisable~~ in connection with the consummation of the transactions contemplated ~~by this Agreement~~hereby, including the First Merger, ~~the Non-Arriver Extraction and the Arriver Sale~~ and the making of all necessary ~~or advisable~~ registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary ~~or advisable~~ to obtain an approval from, or to avoid ~~any Action~~ a Proceeding by, any Governmental Authority or other Persons necessary in connection with the consummation of the transactions contemplated ~~by this Agreement~~hereby, including the First Merger~~, the Non-Arriver Extraction and the Arriver Sale,~~ ; (ii) the obtaining of all other necessary consents, approvals or waivers from Third Parties (provided that none of the Company, the Acquiring Parties or Merger Sub shall be required to make or agree to make any payment or accept any material conditions or obligations with respect thereto, except as expressly set forth in Section 6.10(c)), including in respect of the Non-Arriver Extraction and the Arriver Sale, (iii) the defending of any ~~Actions~~lawsuits or other legal Proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including the First Merger, performed or consummated by such party in accordance with the ~~Non-Arriver Extraction and the Arriver Sale~~ 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~~ reversed; and (iviii) the execution and delivery of any additional instruments reasonably necessary to consummate the First 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~~ . To the extent required by Applicable Law, each of the parties hereto shall promptly (~~and, in the case of filings required under the HSR Act,~~ and in no event later than fifteen (15) Business Days following the date ~~hereof) (i~~that this Agreement is executed or on such other date as mutually agreed by the Company and Parent) make and not withdraw ~~any applicable~~ (without the Company’s consent) its respective filings under the HSR Act, and thereafter make any other applications and filings ~~required or advisable~~ as reasonably determined by the Company and Parent under ~~the~~ other applicable Antitrust Laws ~~or Investment Screening Laws of the jurisdictions set forth on Section 6.3(a) of the Company Disclosure Letter~~ with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale, (ii) comply at the earliest practicable date with any request under the HSR Act for additional information (including responding to any “second request”), documents or other materials received by such party from the U.S. Federal Trade Commission, the Antitrust Division of the U.S. Department of Justice or from any other Governmental Authority under any Antitrust Laws or Investment Screening Laws in respect of any such filings with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale and (iii) act in good faith and reasonably cooperate with each other party in connection with any such filings (including, if requested by another party, considering in good faith all reasonable additions, deletions or changes suggested by the other party in connection therewith) and in connection with resolving any investigation or other inquiry of such agency or other Governmental Authority under any Antitrust Laws and Investment Screening Laws. In taking the foregoing actions, each of the Company and the Acquiring Parties shall act reasonably and hereby as promptly as practicable, but in no event later than as required by Law. ~~Notwithstanding anything in this Agreement to~~ Parent shall pay all filing fees and other charges for the ~~contrary, obtaining~~ filings required under any ~~Third Party Consents or waivers pursuant to Section 6.3(a)(ii) above or otherwise, including any Consents required in connection with~~ Antitrust Law by the ~~Non-Arriver Extraction or the Arriver Sale, shall not be a condition to the obligations of any party to consummate the Merger~~Company and Parent. (cb) Without limiting anything in this Section 6.3 (i) none of the parties hereto or their respective Affiliates shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby, except with the prior written consent of the other parties hereto Parent and ~~(ii) the Acquiring Parties and Merger~~ Acquisition Sub agree to take (and to cause their Affiliates to take) promptly any and all steps necessary ~~or reasonably advisable or as may be required by any Governmental Authority~~ to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws ~~or Investment Screening Laws~~ that may be required by any foreign or United States federal, state or local Governmental ~~Authority~~ Authority, in each case with competent jurisdiction, so as to enable the parties to consummate the transactions contemplated ~~by this Agreement, including the Merger, the Non-Arriver Extraction and the Arriver Sale~~ hereby as ~~expeditiously~~ promptly as ~~possible (and in any event at least five (5) Business Days prior to the Outside Date)~~practicable, including committing to ~~and~~ or effecting, by consent decree, hold separate ~~order~~orders, ~~trust~~ trust, or otherwise, ~~(A) selling, divesting, licensing~~ the sale or ~~otherwise disposing~~ disposition of such assets or businesses as are required to be divested in order to avoid the entry of, or ~~holding separate and agreeing~~ to ~~sell, divest, license~~ effect the dissolution of or ~~otherwise dispose of~~vacate or lift, any ~~assets~~ Order, that would otherwise have the effect of preventing or materially delaying the consummation of the ~~Company~~transactions contemplated hereby; provided, ~~the Acquiring Parties~~however, ~~Merger Sub or their respective Affiliates, (B) terminating, amending or assigning existing relationships~~ that Parent and contractual rights and obligations, (C) requiring the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates to grant any right or commercial or other accommodation to, or enter into any material commercial contractual or other commercial relationship with, any Third Party and (D) imposing limitations on the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates with respect to how they own, retain, conduct or operate all or any portion of their respective businesses or assets (clauses (A) through (D) shall be referred to as “Remedy Actions”). Notwithstanding anything to the contrary set forth in this Section 6.3, the Acquiring Parties and Merger Acquisition Sub shall not be required to ~~commit or agree to, and the Company shall not be permitted to commit or agree to without the consent of the Acquiring Parties,~~ take any such Remedy Action contemplated by clause (ii) above to the extent any such Remedy Action contemplated by clause (ii) above (x) is not conditioned upon the consummation of the transactions contemplated by this Agreement or (y) would require, or cause to be taken, (1) any sale, divestiture, licensing or other disposal of, or other action with respect to, any assets or businesses of QUALCOMM Technology Licensing, (2) any sale, divestiture, licensing or other disposal of any assets or businesses of the Arriver Business, or any other action with respect to any assets or businesses of the Arriver Business, actions that would ~~materially diminish~~ result in either a Parent Material Adverse Effect or materially interfere with the benefits that QUALCOMM reasonably expects to receive from its ownership of the Arriver Business, (3) any sale or divestiture of any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a fair market value (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the economic impact determined with respect to any actions taken pursuant to the following clause (4), or (4) any other action (excluding sales or divestitures) with respect to any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a net negative economic impact (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the fair market value determined with respect to any actions taken pursuant to the foregoing clause (3)Material Adverse Effect. (dc) ~~Each of~~ In connection with and without limiting the ~~parties hereto~~ efforts referenced in this Section 6.4, the Company, Parent and Acquisition Sub will, and will cause the Company Investment Adviser and the Parent External Adviser, as applicable, to, 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~~Authority or in connection with any Proceeding initiated by a private party, including ~~(i) promptly~~ immediately 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~~ or in ~~any substantive meetings or discussions~~ connection with any ~~Governmental Authority~~Proceeding initiated by a private party, to ~~the extent not prohibited by such Governmental Authority~~ any other Person, and ~~(iv)~~ supplying each other with copies of all material correspondence, filings or communications between either party and any Governmental ~~Authority~~ Authority, or in connection with any Proceeding initiated by a private party, between either party and any other Person with respect to this Agreement~~; provided that~~. In addition, ~~notwithstanding anything~~ each of the parties hereto will give reasonable notice to and consult with the other in ~~this Agreement to the contrary~~advance of any meeting or conference with any Governmental Authority, ~~the Acquiring Parties shall determine the strategy to be pursued for obtaining and lead the effort to obtain all necessary actions~~ or ~~nonactions and consents from Governmental Authorities, including any related litigation and Remedy Actions, pursuant to any Antitrust Law~~ in connection with ~~the transactions contemplated~~ any Proceeding by ~~this Agreement~~a private party, with any other Person, and ~~the Company shall take all reasonably requested actions to support the Acquiring Parties in connection therewith. Notwithstanding anything~~ to the ~~contrary contained in this Agreement,~~ extent permitted by the ~~Acquiring Parties shall consult with the Company and consider in good faith the views of the Company in connection with all material communications with a~~ Governmental Authority and strategy regarding the Antitrust Laws. (e) The Company and the Acquiring Parties, in their respective sole and absolute discretion, may (x) redact materials as necessary to comply with contractual arrangements address reasonable attorney client or other ~~privilege~~ Person, give the other the opportunity to attend and participate in such meeting or confidentiality concerns, exclude any information relating to Company valuation and similar matters relating to the transactions contemplated herein, and (y) designate any competitively sensitive material as “Outside Counsel Only Material” such that such materials and the information contained therein shall be given only to the outside counsel of the recipient and will not be disclosed to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counselconference. (f) The Acquiring Parties and Merger Sub shall not, and shall not permit any of their controlled Affiliates to, (i) acquire or agree to acquire by merging or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests or (ii) take or agree to take any other action (including entering into or agreeing to enter into any material license, joint venture or other transaction), in each case that would reasonably be expected to (A) impose any material delay in the obtaining of, or increase the risk materially of not obtaining, approval from, or avoiding an Action by, any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period, (B) materially increase the risk of any Governmental Authority entering an Order prohibiting the consummation of the transactions contemplated by this Agreement or (C) otherwise materially delay or prevent the consummation of the transactions contemplated by this Agreement.

Appears in 2 contracts

Samples: Merger Agreement (Crescent Capital BDC, Inc.), Merger Agreement (Alcentra Capital Corp)

Appropriate Action; Consents; Filings. (a) ~~In accordance with~~ Subject to the terms and ~~subject to the~~ conditions of this Agreement (including the limitations set forth in Section ~~6.5~~5.6), the parties hereto will use their respective reasonable best efforts ~~to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable~~ to consummate and make effective the transactions contemplated hereby and to cause the conditions to the ~~Merger~~ Mergers set forth in Article ~~VII~~ VI to be ~~satisfied as expeditiously as practicable (and in any event at least five (5) Business Days prior to the Outside Date)~~satisfied, including using reasonable best efforts to accomplish the following: (i) the obtaining of all necessary ~~or advisable~~ actions or non-actions, ~~waivers, Consents~~ consents and approvals from Governmental Authorities or other Persons necessary ~~or advisable~~ in connection with the consummation of the transactions contemplated by this Agreement, including the ~~Merger~~Mergers, ~~the Non-Arriver Extraction and the Arriver Sale~~ and the making of all necessary ~~or advisable~~ registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary ~~or advisable~~ to obtain an approval from, or to avoid ~~any Action~~ 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, the Non-Arriver Extraction and the Arriver Sale~~Mergers, (ii) the obtaining of all other necessary consents, approvals or waivers from Third Parties (provided that none of the Company, the Acquiring Parties or Merger Sub shall be required to make or agree to make any payment or accept any material conditions or obligations with respect thereto, except as expressly set forth in Section 6.10(c)), including in respect of the Non-Arriver Extraction and the Arriver Sale, (iii) the defending of any ~~Actions~~lawsuits or other legal Proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including the ~~Merger~~Mergers, performed or consummated by such party in accordance with the ~~Non-Arriver Extraction and the Arriver Sale~~ 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 (iviii) the execution and delivery of any additional instruments reasonably necessary to consummate the ~~Merger~~ Mergers 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 promptly (~~and, in the case of filings required under the HSR Act,~~ and in no event later than ~~fifteen~~ ten (1510) Business Days following the date ~~hereof) (i~~that this Agreement is executed) make and not withdraw ~~any applicable~~ (without the other’s consent) its respective filings under the HSR Act, and thereafter make any other applications and filings ~~required or advisable~~ as reasonably determined by the Company and Parent under ~~the~~ other applicable Antitrust Laws ~~or Investment Screening Laws of the jurisdictions set forth on Section 6.3(a) of the Company Disclosure Letter~~ with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale, (ii) comply at the earliest practicable date with any request under the HSR Act for additional information (including responding to any “second request”), documents or other materials received by such party from the U.S. Federal Trade Commission, the Antitrust Division of the U.S. Department of Justice or from any other Governmental Authority under any Antitrust Laws or Investment Screening Laws in respect of any such filings with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale and (iii) act in good faith and reasonably cooperate with each other party in connection with any such filings (including, if requested by another party, considering in good faith all reasonable additions, deletions or changes suggested by the other party in connection therewith) and in connection with resolving any investigation or other inquiry of such agency or other Governmental Authority under any Antitrust Laws and Investment Screening Laws. In taking the foregoing actions, each of the Company and the Acquiring Parties shall act reasonably and hereby as promptly as practicable, but in no event later than as required by Law. ~~Notwithstanding anything in this Agreement to~~ Parent shall pay all filing fees and other charges for the ~~contrary, obtaining~~ filings required under any ~~Third Party Consents or waivers pursuant to Section 6.3(a)(ii) above or otherwise, including any Consents required in connection with~~ Antitrust Law by the ~~Non-Arriver Extraction or the Arriver Sale, shall not be a condition to the obligations of any party to consummate the Merger~~Company and Parent. (cb) Without limiting anything in this Section 6.3 (i) none of the parties hereto or their respective Affiliates shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby, except with the prior written consent of the other parties hereto Parent and ~~(ii) the Acquiring Parties and Merger~~ Acquisition Sub agree to ~~take (~~take, and to cause their Affiliates to take) , promptly any and all steps necessary ~~or reasonably advisable or as may be required by any Governmental Authority~~ to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws ~~or Investment Screening Laws~~ that may be required by any foreign or United States federal, state or local Governmental ~~Authority~~ Authority, in each case with competent jurisdiction, so as to enable the parties to consummate the transactions contemplated by this ~~Agreement, including the Merger, the Non-Arriver Extraction and the Arriver Sale~~ Agreement as ~~expeditiously~~ promptly as ~~possible (and in any event at least five (5) Business Days prior to the Outside Date)~~practicable, including committing to ~~and~~ or effecting, by consent decree, hold separate ~~order~~orders, trust or otherwise, ~~(A) selling, divesting, licensing~~ the sale or ~~otherwise disposing~~ disposition of such assets or businesses as are required to be divested in order to avoid the entry of, or ~~holding separate and agreeing~~ to ~~sell, divest, license~~ effect the dissolution of or ~~otherwise dispose of~~vacate or lift, any ~~assets~~ Order that would otherwise have the effect of ~~the Company, the Acquiring Parties, Merger Sub~~ preventing or their respective Affiliates, (B) terminating, amending or assigning existing relationships and contractual rights and obligations, (C) requiring the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates to grant any right or commercial or other accommodation to, or enter into any material commercial contractual or other commercial relationship with, any Third Party and (D) imposing limitations on the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates with respect to how they own, retain, conduct or operate all or any portion of their respective businesses or assets (clauses (A) through (D) shall be referred to as “Remedy Actions”). Notwithstanding anything to the contrary set forth in this Section 6.3, the Acquiring Parties and Merger Sub shall not be required to commit or agree to, and the Company shall not be permitted to commit or agree to without the consent of the Acquiring Parties, any such Remedy Action contemplated by clause (ii) above to the extent any such Remedy Action contemplated by clause (ii) above (x) is not conditioned upon materially delaying the consummation of the transactions contemplated by this ~~Agreement or (y) would require~~Agreement; provided, or cause to be taken, (1) any sale, divestiture, licensing or other disposal of, or other action with respect to, any assets or businesses of QUALCOMM Technology Licensing, (2) any sale, divestiture, licensing or other disposal of any assets or businesses of the Arriver Business, or any other action with respect to any assets or businesses of the Arriver Businesshowever, that ~~would materially diminish or materially interfere with the benefits that QUALCOMM reasonably expects~~ Parent and Acquisition Sub shall not be required to receive from its ownership of the Arriver Business, (3) any sale or divestiture of any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a fair market value (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the economic impact determined with respect to take any actions ~~taken pursuant~~ that would or would be reasonably expected to ~~the following clause (4),~~ result in either a Parent Material Adverse Effect or ~~(4) any other action (excluding sales or divestitures) with respect to any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the~~ Company or its Subsidiaries, that individually or in the aggregate, have a net negative economic impact (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the fair market value determined with respect to any actions taken pursuant to the foregoing clause (3)Material Adverse Effect. (dc) ~~Each~~ In connection with and without limiting the efforts referenced in this Section 5.4, 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~~Authority or in connection with any Proceeding initiated by a private party, including ~~(i) promptly~~ immediately 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~~ or in ~~any substantive meetings or discussions~~ connection with any ~~Governmental Authority~~Proceeding initiated by a private party, to ~~the extent not prohibited by such Governmental Authority~~ any other Person, and ~~(iv)~~ supplying each other with copies of all material correspondence, filings or communications between either party and any Governmental ~~Authority~~ Authority, or in connection with any Proceeding initiated by a private party, between either party and any other Person with respect to this Agreement~~; provided that~~. In addition, ~~notwithstanding anything~~ each of the parties hereto will give reasonable notice to and consult with the other in ~~this Agreement to the contrary~~advance of any meeting or conference with any Governmental Authority, ~~the Acquiring Parties shall determine the strategy to be pursued for obtaining and lead the effort to obtain all necessary actions~~ or ~~nonactions and consents from Governmental Authorities, including any related litigation and Remedy Actions, pursuant to any Antitrust Law~~ in connection with ~~the transactions contemplated~~ any Proceeding by ~~this Agreement~~a private party, with any other Person, and ~~the Company shall take all reasonably requested actions to support the Acquiring Parties in connection therewith. Notwithstanding anything~~ to the ~~contrary contained in this Agreement,~~ extent permitted by the ~~Acquiring Parties shall consult with the Company and consider in good faith the views of the Company in connection with all material communications with a~~ Governmental Authority and strategy regarding the Antitrust Laws. (e) The Company and the Acquiring Parties, in their respective sole and absolute discretion, may (x) redact materials as necessary to comply with contractual arrangements address reasonable attorney client or other ~~privilege~~ Person, give the other the opportunity to attend and participate in such meeting or confidentiality concerns, exclude any information relating to Company valuation and similar matters relating to the transactions contemplated herein, and (y) designate any competitively sensitive material as “Outside Counsel Only Material” such that such materials and the information contained therein shall be given only to the outside counsel of the recipient and will not be disclosed to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counselconference. (f) The Acquiring Parties and Merger Sub shall not, and shall not permit any of their controlled Affiliates to, (i) acquire or agree to acquire by merging or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests or (ii) take or agree to take any other action (including entering into or agreeing to enter into any material license, joint venture or other transaction), in each case that would reasonably be expected to (A) impose any material delay in the obtaining of, or increase the risk materially of not obtaining, approval from, or avoiding an Action by, any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period, (B) materially increase the risk of any Governmental Authority entering an Order prohibiting the consummation of the transactions contemplated by this Agreement or (C) otherwise materially delay or prevent the consummation of the transactions contemplated by this Agreement.

Appears in 2 contracts

Samples: Merger Agreement (Ares Capital Corp), Merger Agreement (American Capital, LTD)

Appropriate Action; Consents; Filings. ~~(a) In accordance with the terms and subject to the conditions of this Agreement (including Section 6.5)~~The Seller, the ~~parties hereto will~~ Company and the Merger Sub shall use their ~~respective~~ reasonable best efforts to (i) take, or cause to be taken, all ~~actions~~appropriate action, and to do, or cause to be done, ~~and to assist and cooperate with the other parties in doing,~~ all things necessary, proper or advisable under applicable Law to consummate and make effective the transactions contemplated ~~hereby and to cause the conditions to the Merger set forth in Article VII to be satisfied as expeditiously as practicable~~ by this Agreement, (~~and in any event at least five (5~~ii) ~~Business Days prior to the Outside Date), including using reasonable best efforts to accomplish the following: (i) the obtaining of~~ obtain all ~~necessary or advisable actions or non-actions, waivers,~~ Consents and Orders required under Law (including, without limitation, all rulings and approvals of Governmental Authorities) and from ~~Governmental Authorities necessary or advisable~~ parties to Contracts required in connection with the ~~consummation~~ authorization, execution and delivery of ~~the transactions contemplated by~~ this ~~Agreement, including the Merger, the Non-Arriver Extraction~~ Agreement and the Arriver Sale and the making of all necessary or advisable registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary or advisable to obtain an approval from, or to avoid any Action by, any Governmental Authority in connection with the consummation ~~of the transactions contemplated~~ by this Agreement, including the Merger, the Non-Arriver Extraction and the Arriver Sale, (ii) the obtaining of all other necessary consents, approvals or waivers from Third Parties (provided that none of the Company, the Acquiring Parties or Merger Sub shall be required to make or agree to make any payment or accept any material conditions or obligations with respect thereto, except as expressly set forth in Section 6.10(c)), including in respect of the Non-Arriver Extraction and the Arriver Sale, (iii) the defending of any Actions, whether judicial or administrative, challenging this Agreement or the consummation them of the transactions contemplated hereby, ~~including~~ including, without limitation, the Merger, ~~the Non-Arriver Extraction and the Arriver Sale including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed~~ and (iv) the execution and delivery of any additional instruments necessary to consummate the Merger and any other transactions to be performed or consummated by such party in accordance with the terms of this Agreement and to carry out fully the purposes of this Agreement. (b) Each of the parties hereto shall promptly (and, in the case of filings required under the HSR Act, in no event later than fifteen (15) Business Days following the date hereof) (iiii) make ~~and not withdraw any applicable filings under the HSR Act~~all necessary filings, and thereafter make any other ~~applications and filings~~ required ~~or advisable under the Antitrust Laws or Investment Screening Laws of the jurisdictions set forth on Section 6.3(a) of the Company Disclosure Letter~~ submissions, with respect to this Agreement and the ~~transactions contemplated hereby~~Merger required under (A) the Securities Act and the Exchange Act (to the extent applicable) and any other applicable federal or state securities laws, ~~including~~ (B) the ~~Merger~~BHCA and any other applicable federal or state banking laws and (C) any other applicable Law; provided that, the ~~Non-Arriver Extraction~~ Company, the Seller and the Arriver Sale, (ii) comply at the earliest practicable date with any request under the HSR Act for additional information (including responding to any “second request”), documents or other materials received by such party from the U.S. Federal Trade Commission, the Antitrust Division of the U.S. Department of Justice or from any other Governmental Authority under any Antitrust Laws or Investment Screening Laws in respect of any such filings with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale and (iii) act in good faith and reasonably Merger Sub shall cooperate with each other ~~party~~ in connection with ~~any~~ the making of all such ~~filings (including~~filings, including providing copies of all such documents to the non-filing party and its advisors prior to filing and, if ~~requested by another party~~requested, ~~considering in good faith~~ to accept all reasonable additions, deletions or changes suggested ~~by the other party~~ in connection therewith, and shall use their respective reasonable best efforts to file all applications required to be filed with the Federal Reserve Board, the OCC or any other federal or state banking regulator no later than thirty (30) ~~and in connection with resolving any investigation or other inquiry~~ days after the execution of ~~such agency or other Governmental Authority under any Antitrust Laws and Investment Screening Laws~~this Agreement by the parties. ~~In taking the foregoing actions~~The Seller, ~~each of~~ the Company and the Acquiring Parties shall act reasonably and as promptly as practicable. Notwithstanding anything in this Agreement to the contrary, obtaining any Third Party Consents or waivers pursuant to Section 6.3(a)(ii) above or otherwise, including any Consents required in connection with the Non-Arriver Extraction or the Arriver Sale, shall not be a condition to the obligations of any party to consummate the Merger. (c) Without limiting anything in this Section 6.3 (i) none of the parties hereto or their respective Affiliates shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby, except with the prior written consent of the other parties hereto and (ii) the Acquiring Parties and Merger Sub agree to take (and to cause their Affiliates to take) promptly any and all steps necessary or reasonably advisable or as may be required by any Governmental Authority to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws or Investment Screening Laws that may be required by any Governmental Authority so as to enable the parties to consummate the transactions contemplated by this Agreement, including the Merger, the Non-Arriver Extraction and the Arriver Sale as expeditiously as possible (and in any event at least five (5) Business Days prior to the Outside Date), including committing to and effecting, by consent decree, hold separate order, trust or otherwise, (A) selling, divesting, licensing or otherwise disposing of, or holding separate and agreeing to sell, divest, license or otherwise dispose of, any assets of the Company, the Acquiring Parties, Merger Sub or their respective Affiliates, (B) terminating, amending or assigning existing relationships and contractual rights and obligations, (C) requiring the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates to grant any right or commercial or other accommodation to, or enter into any material commercial contractual or other commercial relationship with, any Third Party and (D) imposing limitations on the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates with respect to how they own, retain, conduct or operate all or any portion of their respective businesses or assets (clauses (A) through (D) shall be referred to as “Remedy Actions”). Notwithstanding anything to the contrary set forth in this Section 6.3, the Acquiring Parties and Merger Sub shall ~~not be~~ furnish all information required ~~to commit~~ for any application or agree to, and the Company shall not be permitted to commit or agree to without the consent of the Acquiring Parties, any such Remedy Action contemplated by clause (ii) above to the extent any such Remedy Action contemplated by clause (ii) above (x) is not conditioned upon the consummation of the transactions contemplated by this Agreement or (y) would require, or cause other filing to be taken, (1) any sale, divestiture, licensing or other disposal of, or other action with respect to, any assets or businesses of QUALCOMM Technology Licensing, (2) any sale, divestiture, licensing or other disposal of any assets or businesses of the Arriver Business, or any other action with respect to any assets or businesses of the Arriver Business, that would materially diminish or materially interfere with the benefits that QUALCOMM reasonably expects to receive from its ownership of the Arriver Business, (3) any sale or divestiture of any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a fair market value (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the economic impact determined with respect to any actions taken made pursuant to the ~~following clause~~ rules and regulations of any applicable Law (~~4), or (4) any other action (excluding sales or divestitures) with respect~~ including all information required to ~~any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or~~ be included in the aggregate, have a net negative economic impact (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the PartiesProxy Statement) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the fair market value determined with respect to any actions taken pursuant to the foregoing clause (3). (d) 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 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 substantive meetings or discussions 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 either party and any Governmental Authority with respect to this Agreement; provided that, notwithstanding anything in this Agreement to the contrary, the Acquiring Parties shall determine the strategy to be pursued for obtaining and lead the effort to obtain all necessary actions or nonactions and consents from Governmental Authorities, including any related litigation and Remedy Actions, pursuant to any Antitrust Law in connection with the transactions contemplated by this Agreement, and shall furnish the ~~Company shall take~~ other party with copies of all ~~reasonably requested actions~~ such applications and filings and correspondence to ~~support~~ and from such party with respect thereto. In case at any time after the ~~Acquiring Parties in connection therewith. Notwithstanding anything~~ Effective Time any further action is necessary or desirable to carry out the ~~contrary contained in~~ purposes of this Agreement, the ~~Acquiring Parties shall consult with the Company~~ proper officers and consider in good faith the views of the Company in connection with all material communications with a Governmental Authority and strategy regarding the Antitrust Laws. (e) The Company and the Acquiring Parties, in their respective sole and absolute discretion, may (x) redact materials as necessary to comply with contractual arrangements address reasonable attorney client or other privilege or confidentiality concerns, exclude any information relating to Company valuation and similar matters relating to the transactions contemplated herein, and (y) designate any competitively sensitive material as “Outside Counsel Only Material” such that such materials and the information contained therein shall be given only to the outside counsel of the recipient and will not be disclosed to employees, officers or directors of ~~the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel. (f) The Acquiring Parties and Merger Sub~~ each party to this Agreement shall not, and shall not permit any of their controlled Affiliates to, (i) acquire or agree to acquire by merging or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests or (ii) take or agree use all reasonable best efforts to take any other action (including entering into or agreeing to enter into any material license, joint venture or other transaction), in each case that would reasonably be expected to (A) impose any material delay in the obtaining of, or increase the risk materially of not obtaining, approval from, or avoiding an Action by, any Governmental Authority all such necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period, (B) materially increase the risk of any Governmental Authority entering an Order prohibiting the consummation of the transactions contemplated by this Agreement or (C) otherwise materially delay or prevent the consummation of the transactions contemplated by this Agreementaction.

Appears in 2 contracts

Samples: Merger Agreement (First Indiana Corp), Merger Agreement (Marshall & Ilsley Corp/Wi/)

Appropriate Action; Consents; Filings. (a) In accordance with the terms and subject to the conditions of this Agreement (including Section ~~6.5~~5.5 (Non-Solicitation)), the parties hereto will use their respective reasonable best efforts ~~to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable~~ to consummate and make effective the transactions contemplated hereby and to cause the conditions to the Merger set forth in Article ~~VII~~ VI (Conditions to the Merger) to be satisfied as expeditiously as ~~practicable (and in any event at least five (5) Business Days prior to the Outside Date)~~possible, including using reasonable best efforts to accomplish the following: (i) the obtaining of all necessary ~~or advisable~~ actions or non-actions~~, waivers~~, Consents and approvals from Governmental Authorities necessary ~~or advisable~~ in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale~~ and the making of all necessary ~~or advisable~~ registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary ~~or advisable~~ to obtain an approval from, or to avoid any Action by, any Governmental Authority necessary in connection with the consummation of the transactions contemplated by this Agreement, including the ~~Merger~~Merger (other than, ~~the Non-Arriver Extraction and the Arriver Sale~~in each case, as may be required under any Company Facility Contracts or Company Aviation Agreements), (ii) the obtaining of all other necessary consents, approvals or waivers from Third Parties (provided that none of the Company, the Acquiring Parties or Merger Sub shall be required to make or agree to make any payment or accept any material conditions or obligations with respect thereto, except as expressly set forth in Section 6.10(c)), including in respect of the Non-Arriver Extraction and the Arriver Sale, (iii) the defending of any ~~Actions~~lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale~~ including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed and (iviii) 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 promptly (~~and, in the case of filings required under the HSR Act,~~ A) but in no event later than ~~fifteen~~ sixty (1560) ~~Business Days following~~ days after the date ~~hereof) (i)~~ of this Agreement, make and not withdraw ~~any applicable~~ (unless with the prior written consent of the other parties hereto) its filings under the HSR Act, and thereafter make any other applications and filings required or advisable under the Antitrust Laws or Investment Screening Laws of the jurisdictions set forth on Section 6.3(a) of the Company Disclosure Letter Act with respect to the transactions contemplated hereby, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale,~~ (iiB) comply at the earliest ~~practicable~~ possible date with any request under the HSR Act for additional information (including responding to any “second request”), documents or other materials received by such party from the U.S. Federal Trade ~~Commission~~Commission (the “FTC”), the Antitrust Division of the U.S. Department of Justice (the “DOJ”) or ~~from~~ by any other Governmental Authority under any Antitrust ~~Laws or Investment Screening~~ Laws in respect of any such filings with respect to the transactions contemplated hereby, including the ~~Merger, the Non-Arriver Extraction and the Arriver Sale~~ Merger and (~~iii~~C) act in good faith and ~~reasonably~~ cooperate with ~~each~~ the other party in connection with any such filings (including, if requested by ~~another~~ the other party, ~~considering in good faith~~ to duly consider all reasonable additions, deletions or changes suggested by the other party in connection therewith) and in connection with resolving any investigation or other inquiry of such agency or other Governmental Authority under any Antitrust ~~Laws and Investment Screening~~ Laws. In taking the foregoing actions, each of the Company and ~~the Acquiring Parties~~ Parent shall act reasonably and as promptly and expeditiously as practicable. Notwithstanding anything in this Agreement to the contrary, obtaining any Third Party Consents or waivers pursuant to Section 6.3(a)(ii) above or otherwise, including any Consents required in connection with the Non-Arriver Extraction or the Arriver Sale, shall not be a condition to the obligations of any party to consummate the Mergerpossible. (cb) Without limiting anything in this Section ~~6.3~~ 5.3, (i) none of the parties hereto or their respective Affiliates shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby, except with the prior written consent of the other parties hereto and (ii) ~~the Acquiring Parties~~ Parent and Merger Sub agree to take (and to cause their Affiliates to take) ~~promptly~~ as expeditiously as possible any and all steps necessary ~~or reasonably advisable~~ or as may be required by any Governmental Authority to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust ~~Laws or Investment Screening~~ Laws that may be required by any Governmental Authority so as to enable the parties to consummate the transactions contemplated by this Agreement, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale~~ as expeditiously as ~~possible (and in any event at least five (5) Business Days prior to the Outside Date)~~possible, including committing to (whether prior to submitting the initial filing under the HSR Act or thereafter) and effecting, by consent decree, hold separate order, trust or otherwise, (A) selling, divesting, licensing or otherwise disposing of, or holding separate and agreeing to sell, divest, license or otherwise dispose of, (1) any assets of ~~the Company, the Acquiring Parties~~Parent, Merger Sub or their respective ~~Affiliates~~Affiliates or (2) the assets of the Company or its Subsidiaries set forth on Schedule 5.3; provided, that no such Divestiture Action in this clause (A) shall be required if such Divestiture Action would have a material adverse effect on Parent and its Subsidiaries (including the Surviving Corporation), taken as a whole (after giving effect to the Merger) (in which case, for the avoidance of doubt, Parent shall be permitted to omit to take such Divestiture Action so long as it pays, or causes to be paid, the Reverse Termination Fee in accordance with Section 7.3(b)), (B) terminating, amending or assigning existing relationships and contractual rights and ~~obligations~~obligations of Parent, Merger Sub or any of their respective Affiliates, (C) requiring ~~the Acquiring Parties~~Parent, Merger ~~Sub, the Company~~ Sub or any of their respective Affiliates to grant any right or commercial or other accommodation to, or enter into any material commercial contractual or other commercial relationship with, any Third Party and (D) imposing limitations on ~~the Acquiring Parties~~Parent, Merger ~~Sub, the Company~~ Sub or any of their respective Affiliates with respect to how they own, retain, conduct or operate all or any portion of their respective businesses or assets (~~clauses (A) through (D) shall be referred to as “Remedy Actions”). Notwithstanding anything to~~ any of the ~~contrary~~ actions set forth in this Section 6.3, the Acquiring Parties and Merger Sub shall not be required to commit or agree to, and the Company shall not be permitted to commit or agree to without the consent of the Acquiring Parties, any such Remedy Action contemplated by clause (ii~~) above to the extent~~ ), a “Divestiture Action”); provided, however, that any ~~such Remedy~~ Divestiture Action ~~contemplated by clause (ii) above (x)~~ is ~~not~~ conditioned upon the consummation of the transactions contemplated by this Agreement and subject to the procedures and other terms set forth on Schedule 5.3. The Company shall cooperate with Parent in good faith with respect to any proposed Divestiture Actions and shall, and shall cause its Subsidiaries to, enter into one or ~~(y) would require, or cause~~ more agreements reasonably requested by Parent to be ~~taken~~entered into by any of them prior to the Closing with respect to any Divestiture Action; provided that any Divestiture Action is conditioned upon the consummation of the transactions contemplated by this Agreement. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, ~~(1) any sale, divestiture, licensing or other disposal of, or other action~~ the Company shall not be required to provide cooperation with respect to, or agree to effect, any ~~assets~~ Divestiture Action that relates to any assets, businesses, properties, facilities or ~~businesses of QUALCOMM Technology Licensing~~rights (collectively, (2“Assets”) ~~any sale, divestiture, licensing or other disposal of any assets or businesses~~ of the Arriver Business, or any other action with respect to any assets or businesses of the Arriver Business, that would materially diminish or materially interfere with the benefits that QUALCOMM reasonably expects to receive from its ownership of the Arriver Business, (3) any sale or divestiture of any assets or businesses of QUALCOMM Company or any of its ~~Subsidiaries~~Subsidiaries (each such Asset, or a “Company Asset”), other than those Company Assets set forth on Schedule 5.3. For the avoidance of doubt, neither (x) the Company’s refusal to agree to any Divestiture Action with respect to ~~any assets or businesses~~ a Company Asset not set forth on Schedule 5.3 as of the date of this Agreement, nor (y) the failure of the Company or any of its ~~Subsidiaries, that individually or~~ Subsidiaries to obtain any Consent from any Third Party as may be required in connection with any Divestiture Action (including with respect to the aggregate, have a fair market value (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount Company Assets set forth on ~~Section 6.3(c) of~~ Schedule 5.3), shall constitute a breach by the Company ~~Disclosure Letter less the amount~~ of the economic impact determined with respect to any actions taken pursuant to the following clause (4), or (4) any other action (excluding sales or divestitures) with respect to any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a net negative economic impact (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the fair market value determined with respect to any actions taken pursuant to the foregoing clause (3)this Agreement. (dc) ~~Each~~ Except as otherwise provided herein or on Schedule 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 good faith in (x) preparing such filings and agreeing to take any actions, including Divestiture Actions (with respect to the Company, solely with respect to the Company Assets set forth on Schedule 5.3), prior to submitting such filings that the parties agree would be helpful in obtaining all Consents under any Antitrust Laws that may be required by any Governmental Authority so as to enable the parties to consummate the transactions contemplated by this Agreement, including the Merger, as expeditiously as possible, and (y) 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 substantive meetings or discussions 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 either party and any Governmental Authority with respect to this Agreement; ~~provided that~~provided, ~~notwithstanding anything in this Agreement to the contrary~~however, ~~the Acquiring Parties~~ that Parent shall determine the strategy ~~to be pursued~~ and timing for obtaining ~~and lead the effort to obtain~~ all necessary actions or ~~nonactions~~ non-actions, Consents and ~~consents~~ approvals from Governmental ~~Authorities, including any related litigation and Remedy Actions, pursuant to any Antitrust Law~~ Authorities necessary in connection with the consummation of the transactions contemplated by this Agreement, and the Company shall take all reasonably requested actions to support the Acquiring Parties in connection therewith. Notwithstanding anything to the contrary contained in this Agreement, the Acquiring Parties shall consult with the Company and consider Agreement after considering in good faith ~~the views~~ all comments and advice of the Company ~~in connection with all material communications with a Governmental Authority~~ (and ~~strategy regarding the Antitrust Laws. (e)~~ its counsel). The Company and ~~the Acquiring Parties~~Parent, in their respective sole and absolute discretion, may (x) redact materials as necessary to comply with contractual arrangements address reasonable attorney client or other privilege or confidentiality concerns, exclude any information relating to Company valuation and similar matters relating to the transactions contemplated herein, and (y) designate any competitively sensitive material as “Outside Counsel Only Material” such that such materials and the information contained therein shall be given only to the outside counsel of the recipient and will not be disclosed to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel. (fd) ~~The Acquiring Parties~~ Parent and Merger Sub shall not, and shall not permit any of their ~~controlled~~ Affiliates to, (i) acquire or agree to acquire by merging or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests or (ii) take or agree to take any other action (including entering into or agreeing to enter into any material license, joint venture or other transaction), in each case that would ~~reasonably be expected to~~ (A) impose any material delay in the obtaining of, or materially increase the risk ~~materially~~ of not obtaining, approval from, or avoiding an Action by, any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period, (B) materially increase the risk of any Governmental Authority entering an Order prohibiting the consummation of the transactions contemplated by this Agreement or (C) otherwise materially delay or prevent the consummation of the transactions contemplated by this Agreement.

Appears in 2 contracts

Samples: Merger Agreement (SP Plus Corp), Merger Agreement (SP Plus Corp)

Appropriate Action; Consents; Filings. ~~(a) In accordance with~~ Through the ~~terms and subject to the conditions of this Agreement (including Section 6.5)~~Closing Date, the ~~parties hereto~~ Seller and the Purchaser shall cooperate with each other and use (and will ~~use~~ cause their respective Affiliates and Subsidiaries to use) commercially reasonable ~~best~~ efforts (i) to take, or to cause to be taken, all actions, and to do, or to cause to be done, ~~and to assist and cooperate with the other parties in doing,~~ all things reasonably necessary, proper or advisable on their part under this Agreement, Applicable Law or otherwise to consummate and make effective the transactions contemplated hereby and to cause the conditions to the Merger set forth in Article VII to be satisfied as expeditiously as practicable (and in any event at least five (5) Business Days prior to the Outside Date), including using reasonable best efforts to accomplish the following: (i) the obtaining of all necessary or advisable actions or non-actions, waivers, Consents and approvals from Governmental Authorities necessary or advisable in connection with the consummation of the transactions contemplated by this Agreement, ~~including the Merger, the Non-Arriver Extraction and the Arriver Sale and the making~~ (ii) as soon as practicable after execution of all necessary or advisable registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary or advisable to obtain an approval from, or to avoid any Action by, any Governmental Authority in connection with the consummation of the transactions contemplated by this Agreement, ~~including the Merger, the Non-Arriver Extraction~~ to obtain promptly all Purchaser Approvals and the Arriver Sale, (ii) the obtaining of all other necessary consents, approvals or waivers from Third Parties (provided that none of the Company, the Acquiring Parties or Merger Sub shall be required to make or agree to make any payment or accept any material conditions or obligations with respect thereto, except as expressly set forth in Section 6.10(c)), including in respect of the Non-Arriver Extraction and the Arriver Sale, (iii) the defending of any Actions, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed and (iv) the execution and delivery of any additional instruments necessary to consummate the Merger and any other transactions to be performed or consummated by such party in accordance with the terms of this Agreement and to carry out fully the purposes of this Agreement. (b) Each of the parties hereto shall promptly (and, in the case of filings required under the HSR Act, in no event later than fifteen (15) Business Days following the date hereof) (i) make and not withdraw any applicable filings under the HSR Act, and thereafter make any other applications and filings required or advisable under the Antitrust Laws or Investment Screening Laws of the jurisdictions set forth on Section 6.3(a) of the Company Disclosure Letter with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale, (ii) comply at the earliest practicable date with any request under the HSR Act for additional information (including responding to any “second request”), documents or other materials received by such party from the U.S. Federal Trade Commission, the Antitrust Division of the U.S. Department of Justice or from any other Governmental Authority under any Antitrust Laws or Investment Screening Laws in respect of any such filings with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale Seller Approvals and (iii) act in good faith and reasonably cooperate with each other party in connection with any such filings (including, if requested by another party, considering in good faith all reasonable additions, deletions or changes suggested by the other party in connection therewith) and in connection with resolving any investigation or other inquiry of such agency or other Governmental Authority under any Antitrust Laws and Investment Screening Laws. In taking the foregoing actions, each of the Company and the Acquiring Parties shall act reasonably and as promptly as practicable. Notwithstanding anything in this Agreement to ~~the contrary, obtaining any Third Party Consents or waivers pursuant~~ provide prompt notification to Section 6.3(a)(ii) above or otherwise, including any Consents required in connection with the Non-Arriver Extraction or the Arriver Sale, shall not be a condition to the obligations of any party to consummate the Merger. (c) Without limiting anything in this Section 6.3 (i) none of the parties hereto or their respective Affiliates shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby, except with the prior written consent of the other parties hereto ~~and~~ of any actions pursuant to clauses (i) through (ii) ~~the Acquiring Parties~~ of this Section 7.3. The Purchaser agrees and Merger Sub agree to take (and to cause their Affiliates to take) promptly any and all steps necessary or reasonably advisable or as may be required by any Governmental Authority to avoid or eliminate each and every impediment and acknowledges that it must obtain all Necessary Approvals the issuance or renewal of which is required after the Closing Date. For the avoidance of doubt, the Seller shall not be obligated to pay any consideration or incur any additional costs to obtain any Consents ~~under any Antitrust Laws or Investment Screening Laws~~ from third parties that may be ~~required by any Governmental Authority so as to enable the parties to consummate the transactions contemplated by this Agreement~~necessary, including the Merger, the Non-Arriver Extraction and the Arriver Sale as expeditiously as possible (and in any event at least five (5) Business Days prior to the Outside Date), including committing to and effecting, by consent decree, hold separate order, trust proper or otherwise, (A) selling, divesting, licensing or otherwise disposing of, or holding separate and agreeing to sell, divest, license or otherwise dispose of, any assets of the Company, the Acquiring Parties, Merger Sub or their respective Affiliates, (B) terminating, amending or assigning existing relationships and contractual rights and obligations, (C) requiring the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates to grant any right or commercial or other accommodation to, or enter into any material commercial contractual or other commercial relationship with, any Third Party and (D) imposing limitations on the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates with respect to how they own, retain, conduct or operate all or any portion of their respective businesses or assets (clauses (A) through (D) shall be referred to as “Remedy Actions”). Notwithstanding anything to the contrary set forth in this Section 6.3, the Acquiring Parties and Merger Sub shall not be required to commit or agree to, and the Company shall not be permitted to commit or agree to without the consent of the Acquiring Parties, any such Remedy Action contemplated by clause (ii) above to the extent any such Remedy Action contemplated by clause (ii) above (x) is not conditioned upon the consummation of the transactions contemplated by this Agreement or (y) would require, or cause to be taken, (1) any sale, divestiture, licensing or other disposal of, or other action with respect to, any assets or businesses of QUALCOMM Technology Licensing, (2) any sale, divestiture, licensing or other disposal of any assets or businesses of the Arriver Business, or any other action with respect to any assets or businesses of the Arriver Business, that would materially diminish or materially interfere with the benefits that QUALCOMM reasonably expects to receive from its ownership of the Arriver Business, (3) any sale or divestiture of any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a fair market value (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the economic impact determined with respect to any actions taken pursuant to the following clause (4), or (4) any other action (excluding sales or divestitures) with respect to any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a net negative economic impact (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the fair market value determined with respect to any actions taken pursuant to the foregoing clause (3). (d) 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 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 substantive meetings or discussions 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 either party and any Governmental Authority with respect to this Agreement; provided that, notwithstanding anything in this Agreement to the contrary, the Acquiring Parties shall determine the strategy to be pursued for obtaining and lead the effort to obtain all necessary actions or nonactions and consents from Governmental Authorities, including any related litigation and Remedy Actions, pursuant to any Antitrust Law in connection with the transactions contemplated by this Agreement, and the Company shall take all reasonably requested actions to support the Acquiring Parties in connection therewith. Notwithstanding anything to the contrary contained in this Agreement, the Acquiring Parties shall consult with the Company and consider in good faith the views of the Company in connection with all material communications with a Governmental Authority and strategy regarding the Antitrust Laws. (e) The Company and the Acquiring Parties, in their respective sole and absolute discretion, may (x) redact materials as necessary to comply with contractual arrangements address reasonable attorney client or other privilege or confidentiality concerns, exclude any information relating to Company valuation and similar matters relating to the transactions contemplated herein, and (y) designate any competitively sensitive material as “Outside Counsel Only Material” such that such materials and the information contained therein shall be given only to the outside counsel of the recipient and will not be disclosed to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel. (f) The Acquiring Parties and Merger Sub shall not, and shall not permit any of their controlled Affiliates to, (i) acquire or agree to acquire by merging or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests or (ii) take or agree to take any other action (including entering into or agreeing to enter into any material license, joint venture or other transaction), in each case that would reasonably be expected to (A) impose any material delay in the obtaining of, or increase the risk materially of not obtaining, approval from, or avoiding an Action by, any Governmental Authority necessary advisable to consummate the transactions contemplated by this Agreement if such Consents would cost individually, or in the aggregate, more than fifty thousand U.S. dollars ($50,000). No party shall have any Liability to the other in the event it is unable to obtain any of the Seller Approvals or the ~~expiration or termination of any applicable waiting period~~Purchaser Approvals, ~~(B) materially increase~~ as the ~~risk of any Governmental Authority entering an Order prohibiting the consummation of the transactions~~ case may be. Except with respect to a party’s failure to cooperate and take actions contemplated by this ~~Agreement~~ Section 7.3, any failure to obtain any Seller Approval or ~~(C) otherwise materially delay~~ Purchaser Approval hereunder shall not constitute a breach of any representations, warranties or ~~prevent the consummation~~ covenants of ~~the transactions contemplated by this Agreement~~a party.

Appears in 2 contracts

Samples: Purchase and Sale Agreement (Alabama Power Co), Purchase and Sale Agreement (Southern Power Co)

Appropriate Action; Consents; Filings. (a) ~~In accordance with the terms and subject~~ Subject to ~~the conditions of this Agreement (including~~ Section 6.5), the parties hereto will cooperate with each other and use their respective reasonable best efforts ~~to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable~~ to consummate and make effective the transactions contemplated hereby as soon as practicable and to cause the conditions to the Merger set forth in Article VII to be ~~satisfied as expeditiously as practicable (and in any event at least five (5) Business Days prior to the Outside Date)~~satisfied, including ~~using reasonable best efforts to accomplish the following:~~ (i) the obtaining and maintaining of all necessary ~~or advisable~~ actions or ~~non-actions~~nonactions, ~~waivers~~consents, ~~Consents~~ clearances and approvals from Governmental Authorities including the approvals set forth on Section 6.2 of the Company Disclosure Letter (the “Antitrust Approvals”) or other persons necessary ~~or advisable~~ in connection with the consummation of the transactions contemplated by this ~~Agreement, including the Merger, the Non-Arriver Extraction and the Arriver Sale~~ Agreement and the making of all necessary ~~or advisable~~ registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable or customary steps as may be necessary ~~or advisable~~ to obtain an approval from, or to avoid ~~any Action~~ an action or proceeding by, any Governmental Authority or other persons necessary in connection with the consummation of the transactions contemplated by this ~~Agreement, including the Merger, the Non-Arriver Extraction~~ Agreement and ~~the Arriver Sale,~~ (ii) the obtaining of all other necessary consents, approvals or waivers from Third Parties (provided that none of the Company, the Acquiring Parties or Merger Sub shall be required to make or agree to make any payment or accept any material conditions or obligations with respect thereto, except as expressly set forth in Section 6.10(c)), including in respect of the Non-Arriver Extraction and the Arriver Sale, (iii) the defending of any Actions, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed and (iv) the execution and delivery of any additional instruments necessary to consummate the Merger and ~~any~~ other transactions to be performed or consummated by such party in accordance with the terms of this Agreement and to carry out fully the purposes of this Agreement~~. (b)~~ . Each of the parties hereto shall promptly (~~and,~~ and in no event later than ten (10) Business Days following the ~~case of~~ date that this Agreement is executed) make its respective filings required under the HSR Act, ~~in no event later than fifteen (15) Business Days following the date hereof) (i) make and not withdraw any applicable filings under the HSR Act,~~ and thereafter promptly make any other ~~applications and~~ filings required ~~or advisable under the~~ to obtain any other Antitrust ~~Laws or Investment Screening Laws of the jurisdictions set forth on Section 6.3(a) of the Company Disclosure Letter~~ Approvals with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale, (ii) comply at the earliest practicable date with any request under the HSR Act for additional information (including responding to any “second request”), documents or other materials received by such party from the U.S. Federal Trade Commission, the Antitrust Division of the U.S. Department of Justice or from any other Governmental Authority under any Antitrust Laws or Investment Screening Laws in respect of any such filings with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale and (iii) act in good faith and reasonably cooperate with each other party in connection with any such filings (including, if requested by another party, considering in good faith all reasonable additions, deletions or changes suggested by the other party in connection therewith) and in connection with resolving any investigation or other inquiry of such agency or other Governmental Authority under any Antitrust Laws and Investment Screening Laws. In taking the foregoing actions, each of the Company and the Acquiring Parties shall act reasonably and as promptly as practicable. Notwithstanding anything in this Agreement to the contrary, obtaining any Third Party Consents or waivers pursuant to Section 6.3(a)(ii) above or otherwise, including any Consents required in connection with the Non-Arriver Extraction or the Arriver Sale, shall not be a condition to the obligations of any party to consummate the Merger. (cb) Without limiting anything in this Section 6.3 (i) none of the parties hereto or their respective Affiliates shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby, except with the prior written consent of the other parties hereto Parent and ~~(ii) the Acquiring Parties and Merger~~ Acquisition Sub agree to take (and to cause their ~~Affiliates~~ subsidiaries to take) promptly any and all ~~steps~~ actions necessary ~~or reasonably advisable or as may be required by any Governmental Authority~~ to avoid or eliminate each and every impediment and obtain all ~~Consents under any~~ Antitrust ~~Laws or Investment Screening Laws~~ Approvals that may be required by any foreign or U.S. federal, state or local Governmental Authority so as to enable the parties to ~~consummate~~ close the transactions contemplated by this ~~Agreement, including the Merger, the Non-Arriver Extraction and the Arriver Sale~~ Agreement as ~~expeditiously~~ promptly as ~~possible (~~practicable and in any event ~~at least five (5) Business Days prior to~~ before the Outside Date). Such actions shall include (i) each of Parent and the Company complying substantially with any requests for additional information or documentary material from any Governmental Authority under any Antitrust Laws; (ii) Parent proposing, ~~including~~ negotiating, offering to commit and effect (and if such offer is accepted, committing to and effecting), by consent decree, hold separate ~~order, trust~~ order or otherwise, ~~(A) selling~~the sale, ~~divesting, licensing or otherwise disposing of, or holding separate and agreeing to sell, divest~~divestiture, license or ~~otherwise dispose of~~disposition of such assets or businesses of Parent or, ~~any assets~~ effective as of the ~~Company~~Effective Time, the ~~Acquiring Parties~~Surviving Corporation, ~~Merger Sub~~ or their respective ~~Affiliates~~subsidiaries; (iii) Parent proposing, negotiating, or offering to commit and effect (Band if such offer is accepted, committing to and effecting) ~~terminating, amending or assigning existing relationships and contractual rights and obligations, (C) requiring the Acquiring Parties, Merger Sub, the Company or any~~ actions that limit its freedom of ~~their respective Affiliates to grant any right or commercial or other accommodation~~ action with respect to, or ~~enter into~~ its ability to retain, any ~~material commercial contractual~~ of the businesses, services or assets of Parent, the Surviving Corporation or their respective subsidiaries; and (iv) each of Parent and the Company taking any and all other actions reasonably necessary in order to ensure that the waiting period under the HSR Act has expired or been terminated and that any other required Antitrust Approvals have been obtained and that no decree, judgment, injunction (preliminary or permanent), temporary restraining order or any other order in any suit or proceeding relating to any Antitrust Laws would preclude consummation of the Merger by the Outside Date; for the avoidance of any doubt, such actions shall include all necessary actions to appeal that decree, judgment, injunction (preliminary or permanent), temporary restraining order with an appellate court or other ~~commercial relationship with~~appellate Governmental Authority of competent jurisdiction unless and until a final, ~~any Third Party and (D) imposing limitations on the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates~~ non-appealable order has been issued. To assist Parent in complying with respect to how they own, retain, conduct or operate all or any portion of their respective businesses or assets (clauses (A) through (D) shall be referred to as “Remedy Actions”). Notwithstanding anything to the contrary its obligations set forth in this Section ~~6.3~~6.2, and only if requested in writing by Parent, the ~~Acquiring Parties~~ Company and ~~Merger Sub shall not be required to commit or agree to,~~ its subsidiaries and ~~the Company shall not be permitted to commit or~~ Affiliates agree to without the consent of the Acquiring Parties, any such Remedy Action contemplated by clause (ii) above to the extent any such Remedy Action contemplated by clause (ii) above (x) is not conditioned upon the consummation of the transactions contemplated by this Agreement or (y) would requiretake, or cause to be taken, ~~(1)~~ any ~~sale, divestiture, licensing or other disposal of, or other~~ action ~~with respect to, any assets or businesses of QUALCOMM Technology Licensing, (2) any sale, divestiture, licensing or other disposal of any assets or businesses~~ reasonably in furtherance of the ~~Arriver Business~~foregoing, so long as such action is conditioned upon the Closing. Furthermore, and for the avoidance of doubt, none of Parent’s Affiliates (other than Parent’s subsidiaries) shall be required to take or agree to take any ~~other~~ action ~~with respect to any assets~~ or ~~businesses~~ actions in furtherance of the Arriver Business, that would materially diminish or materially interfere with the benefits that QUALCOMM reasonably expects to receive from its ownership of the Arriver Business, (3) any sale or divestiture of any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a fair market value (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on this Section 6.3(c) of the Company Disclosure Letter less the amount of the economic impact determined with respect to any actions taken pursuant to the following clause (4), or (4) any other action (excluding sales or divestitures) with respect to any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a net negative economic impact (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the fair market value determined with respect to any actions taken pursuant to the foregoing clause (36.2(b). (dc) The Company shall give (or shall cause its subsidiaries to give) any notices to third parties, and Parent shall use, and cause each of its subsidiaries to use, its reasonable best efforts to cooperate with the Company in its efforts, to obtain any third-party consents not covered by paragraph (a) above that are necessary or proper to consummate the Merger; provided that the Company shall not be required to make any payments to a third-party to obtain any consent or approval of such third-party prior to the Closing, and shall not agree to make any such payments without Parent’s prior written consent. 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 use its reasonable best efforts to cooperate in responding to any inquiry from a Governmental Authority, including ~~(i) promptly~~ immediately 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 substantive meetings or discussions 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 (other than the HSR Notification and Report Form) or substantive communications between either party and any Governmental Authority with respect to this Agreement; provided ~~that, notwithstanding anything in this Agreement~~ that such materials may be redacted to remove references concerning the contrary, the Acquiring Parties shall determine the strategy to be pursued for obtaining and lead the effort to obtain all necessary actions or nonactions and consents from Governmental Authorities, including any related litigation and Remedy Actions, pursuant to any Antitrust Law in connection with the transactions contemplated by this Agreement, and the Company shall take all reasonably requested actions to support the Acquiring Parties in connection therewith. Notwithstanding anything to the contrary contained in this Agreement, the Acquiring Parties shall consult with valuation of the Company and consider in good faith the views of the Company in connection with all material communications with a Governmental Authority and strategy regarding the Antitrust Laws. (e) The Company and the Acquiring Parties, in their respective sole and absolute discretion, may (x) redact materials as necessary to ~~comply with contractual arrangements~~ address reasonable ~~attorney~~ attorney-client or other privilege concerns. Each party will give the other party the opportunity to attend any meetings, or ~~confidentiality concerns~~to participate in any substantive communications with, ~~exclude any information relating to Company valuation and similar matters relating~~ a Government Authority to the ~~transactions contemplated herein~~extent permitted by such Government Authority. Notwithstanding the foregoing, ~~and~~ obtaining any third-party consents pursuant to this paragraph (yc) ~~designate any competitively sensitive material as “Outside Counsel Only Material” such that such materials and the information contained therein~~ shall not be ~~given only~~ considered a condition to the ~~outside counsel~~ obligations of ~~the recipient~~ Parent and will not be disclosed to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel. (f) The Acquiring Parties and Merger Acquisition Sub shall not, and shall not permit any of their controlled Affiliates to, (i) acquire or agree to acquire by merging or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests or (ii) take or agree to take any other action (including entering into or agreeing to enter into any material license, joint venture or other transaction), in each case that would reasonably be expected to (A) impose any material delay in the obtaining of, or increase the risk materially of not obtaining, approval from, or avoiding an Action by, any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period, (B) materially increase the risk of any Governmental Authority entering an Order prohibiting the consummation of the transactions contemplated by this Agreement or (C) otherwise materially delay or prevent the consummation of the transactions contemplated by this AgreementMerger.

Appears in 2 contracts

Samples: Merger Agreement (Elizabeth Arden Inc), Merger Agreement (Revlon Inc /De/)

Appropriate Action; Consents; Filings. (a) ~~In accordance with~~ On the terms and subject to the conditions set forth in this Agreement, each of ~~this Agreement~~ Sorin, Holdco and Cyberonics shall (~~including Section 6.5), the parties hereto will use~~ and shall cause each of their respective affiliates to) use its reasonable best efforts (unless, with respect to ~~take~~any action, ~~or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable~~ another standard of performance is expressly provided for herein) to consummate and make effective the transactions contemplated hereby and to cause the conditions ~~to the Merger~~ set forth in Article ~~VII~~ VI to be ~~satisfied~~ satisfied, in each case as ~~expeditiously~~ promptly as ~~practicable~~ practicable. Without limiting the generality of the foregoing, but subject to the other terms and conditions set forth in this Agreement, each of Sorin, Holdco and Cyberonics shall (and ~~in any event at least five (5~~shall cause each of their respective affiliates to) ~~Business Days prior to the Outside Date), including using~~ use its reasonable best efforts to ~~accomplish the following:~~ (i) ~~the obtaining of~~ promptly obtain all ~~necessary or advisable~~ actions or ~~non-actions~~nonactions, consents, licenses, permits (including Environmental Permits), waivers, ~~Consents~~ approvals, authorizations and ~~approvals~~ orders from Governmental ~~Authorities~~ Entities or other persons necessary in connection with the consummation of the transactions contemplated hereby, including any certifications or ~~advisable~~ orders from the Court, Italian notary public and competent Italian court, (ii) as promptly as practicable (and, in the case of the HSR Act, in any event within ten (10) Business Days after the date hereof), make all registrations and filings, and thereafter make any other required submissions with, and pay any fees due in connection therewith to, any Governmental Entity or other persons necessary in connection with the consummation of the transactions contemplated by this Agreement, including the ~~Merger~~filings required of them or their “ultimate parent entities” under the HSR Act, ~~the Non-Arriver Extraction~~ (iii) file all notifications required under any other Antitrust Law, in each case with respect to this Agreement and the ~~Arriver Sale and~~ transactions contemplated hereby, including the ~~making of~~ Mergers, as promptly as reasonably practicable, (iv) defend all ~~necessary~~ lawsuits or ~~advisable registrations and filings (including filings with Governmental Authorities~~other legal, ~~if any) and the taking of all reasonable steps as may be necessary~~ regulatory or ~~advisable~~ other proceedings to ~~obtain an approval from,~~ which it is a party challenging or ~~to avoid any Action by, any Governmental Authority in connection with~~ affecting this Agreement or the consummation of the transactions contemplated by this Agreement, ~~including~~ in each case until the ~~Merger~~issuance of a final, ~~the Non~~non-~~Arriver Extraction and the Arriver Sale~~appealable order with respect to each such lawsuit or other proceeding, (iiv) seek to have lifted or rescinded any injunction or restraining order which may adversely affect the ~~obtaining of all other necessary consents, approvals or waivers from Third Parties (provided that none~~ ability of the ~~Company, the Acquiring Parties or Merger Sub shall be required~~ parties to make or agree to make any payment or accept any material conditions or obligations with respect thereto, except as expressly set forth in Section 6.10(c)), including in respect of the Non-Arriver Extraction and the Arriver Sale, (iii) the defending of any Actions, whether judicial or administrative, challenging this Agreement or the consummation of consummate the transactions contemplated hereby, ~~including~~ in each case until the ~~Merger~~issuance of a final, ~~the Non~~non-~~Arriver Extraction and the Arriver Sale including seeking to have any stay or temporary restraining~~ appealable order ~~entered by any court or other Governmental Authority vacated or reversed~~ with respect thereto and (ivvi) ~~the execution~~ execute and ~~delivery of~~ deliver any additional instruments necessary to consummate the ~~Merger and any other~~ transactions ~~to be performed or consummated by such party in accordance with the terms of this Agreement and to carry out fully the purposes of this Agreement~~contemplated hereby. (b) Each of the parties hereto shall promptly (and, in the case of filings required under the HSR Act, in no event later than fifteen (15) Business Days following the date hereof) (i) make and not withdraw any applicable filings under the HSR Act, and thereafter make any other applications and filings required or advisable under the Antitrust Laws or Investment Screening Laws of the jurisdictions set forth on Section 6.3(a) of the Company Disclosure Letter with respect Notwithstanding anything to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale, (ii) comply at the earliest practicable date with any request under the HSR Act for additional information (including responding to any “second request”contrary in Section 5.07(a), ~~documents or other materials received by such party from the U.S. Federal Trade Commission~~Cyberonics, the Antitrust Division of the U.S. Department of Justice or from any other Governmental Authority under any Antitrust Laws or Investment Screening Laws in respect of any such filings with respect to the transactions contemplated herebySorin, including the Merger, the Non-Arriver Extraction and the Arriver Sale and (iii) act in good faith and reasonably cooperate with each other party in connection with any such filings (including, if requested by another party, considering in good faith all reasonable additions, deletions or changes suggested by the other party in connection therewith) and in connection with resolving any investigation or other inquiry of such agency or other Governmental Authority under any Antitrust Laws and Investment Screening Laws. In taking the foregoing actions, each of the Company and the Acquiring Parties shall act reasonably and as promptly as practicable. Notwithstanding anything in this Agreement to the contrary, obtaining any Third Party Consents or waivers pursuant to Section 6.3(a)(ii) above or otherwise, including any Consents required in connection with the Non-Arriver Extraction or the Arriver Sale, shall not be a condition to the obligations of any party to consummate the Merger. (c) Without limiting anything in this Section 6.3 (i) none of the parties hereto or their respective Affiliates shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby, except with the prior written consent of the other parties hereto and (ii) the Acquiring Parties Holdco and Merger Sub agree to ~~take~~ use their respective reasonable best efforts (and to cause their ~~Affiliates~~ affiliates to ~~take~~use their respective reasonable best efforts) ~~promptly any and all steps necessary or reasonably advisable or as may be required by any Governmental Authority~~ to avoid or eliminate each and every impediment and obtain all ~~Consents~~ consents under any Antitrust ~~Laws or Investment Screening~~ Laws that may be required by any foreign or U.S. federal, state or local Governmental ~~Authority~~ Entity with competent jurisdiction, so as to enable the parties to ~~consummate~~ close the transactions contemplated by this ~~Agreement~~Agreement as promptly as practicable, including ~~the Merger, the Non-Arriver Extraction~~ accepting operational restrictions or limitations and ~~the Arriver Sale as expeditiously as possible (and in any event at least five (5) Business Days prior to the Outside Date), including~~ committing to ~~and~~ or effecting, by consent decree, hold separate ~~order~~orders, ~~trust~~ trust, or otherwise, the sale, license, disposition or holding separate of such assets or businesses as are required (Aand the entry into agreements with, and submission to orders of, the relevant Governmental Entity) ~~selling, divesting, licensing or otherwise disposing~~ in order to avoid the entry of, or ~~holding separate and agreeing~~ to ~~sell, divest, license~~ effect the dissolution of or ~~otherwise dispose of~~vacate or lift, any ~~assets~~ order, that would otherwise have the effect of ~~the Company, the Acquiring Parties, Merger Sub~~ preventing or their respective Affiliates, (B) terminating, amending or assigning existing relationships and contractual rights and obligations, (C) requiring the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates to grant any right or commercial or other accommodation to, or enter into any material commercial contractual or other commercial relationship with, any Third Party and (D) imposing limitations on the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates with respect to how they own, retain, conduct or operate all or any portion of their respective businesses or assets (clauses (A) through (D) shall be referred to as “Remedy Actions”). Notwithstanding anything to the contrary set forth in this Section 6.3, the Acquiring Parties and Merger Sub shall not be required to commit or agree to, and the Company shall not be permitted to commit or agree to without the consent of the Acquiring Parties, any such Remedy Action contemplated by clause (ii) above to the extent any such Remedy Action contemplated by clause (ii) above (x) is not conditioned upon materially delaying the consummation of the transactions contemplated by this ~~Agreement~~ Agreement. Further, and for the avoidance of doubt, each of Cyberonics, Sorin, Holdco and Merger Sub shall take (and shall cause each of its affiliates to take) any and all actions necessary or advisable in order to ensure that (x) no requirement for any non-action by or consent or approval of the Antitrust Division, the FTC or other foreign or U.S. Governmental Entity 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 ~~require~~in any case prevent or materially delay the consummation of the transactions contemplated by this Agreement. (c) Without limiting the generality of anything contained in this Section 5.07, each party hereto shall: (i) give the other parties prompt notice of the making or ~~cause~~ commencement of any request, inquiry, investigation, action or legal proceeding by or before any Governmental Entity with respect to ~~be taken~~the 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 (1iii) promptly inform the other parties, and if in writing, promptly furnish the outside legal counsel for the other parties with copies of (or, in the case of oral communications, advise as to the contents of) any ~~sale~~communication to or from the FTC, divestiture, licensing or other disposal of, or other action with respect to, any assets or businesses of QUALCOMM Technology Licensing, (2) any sale, divestiture, licensing or other disposal of any assets or businesses of the ~~Arriver Business~~Antitrust Division, or any other ~~action~~ Governmental Entity regarding the transactions contemplated by this Agreement. Each party hereto will consult and cooperate with ~~respect to any assets or businesses~~ the other parties and will consider in good faith and in advance the views of the Arriver Business, that would materially diminish or materially interfere with the benefits that QUALCOMM reasonably expects to receive from its ownership of the Arriver Business, (3) any sale or divestiture of any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a fair market value (measured at the time of such request using customary valuation methodologies to be agreed by the other parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the economic impact determined with respect to any actions taken pursuant to the following clause (4), or (4) any other action (excluding sales or divestitures) with respect to any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a net negative economic impact (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the fair market value determined with respect to any actions taken pursuant to the foregoing clause (3). (d) 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~~ filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or ~~submissions and will cooperate in responding~~ proposal made or submitted 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 substantive meetings or discussions 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 either party and any Governmental Authority with respect to this Agreement; provided that, notwithstanding anything in this Agreement to the contrary, the Acquiring Parties shall determine the strategy to be pursued for obtaining and lead the effort to obtain all necessary actions or nonactions and consents from Governmental Authorities, including any related litigation and Remedy Actions, pursuant to any Antitrust Law Entity in connection with the transactions contemplated by this Agreement. In addition, ~~and the Company shall take all reasonably requested actions to support the Acquiring Parties~~ except as may be prohibited by any Governmental Entity or by any Law, in connection ~~therewith. Notwithstanding anything~~ with any such request, inquiry, investigation, action or legal proceeding, each party hereto will, upon reasonable request, permit authorized Representatives of the other parties to ~~the contrary contained~~ be present at each telephonic or in-person meeting or conference relating to such request, inquiry, investigation, action or legal proceeding and to have access to and be consulted in ~~this Agreement, the Acquiring Parties shall consult with the Company~~ advance (and consider in good faith ~~the views of the Company~~ any comments made by others) in connection with ~~all material communications~~ any document, opinion or proposal made or submitted to any Governmental Entity in connection with ~~a Governmental Authority~~ such request, inquiry, investigation, action or legal proceeding. Each party hereto may, as each deems advisable and ~~strategy regarding the Antitrust Laws. (e) The Company and the Acquiring Parties~~necessary, in their respective sole and absolute discretion, may (x) redact materials as necessary to comply with contractual arrangements address reasonable attorney client or other privilege or confidentiality concerns, exclude any information relating to Company valuation and similar matters relating to the transactions contemplated herein, and (y) reasonably designate any competitively sensitive ~~material~~ information provided to the other under this Section 5.07(c) as “~~Outside Counsel Only Material~~outside counsel only.” ~~such that such~~ Such materials and ~~the~~ information contained therein shall be given only to the outside legal counsel of for the ~~recipient~~ other parties and will not be disclosed by such outside legal counsel to employees, ~~officers~~ officers, or directors of the ~~recipient~~ receiving parties unless express permission is obtained in advance from the ~~source of the~~ disclosing party; provided, however, that materials ~~or its legal counsel. (f~~provided pursuant to this Section 5.07(c) ~~The Acquiring Parties and Merger Sub shall not, and shall not permit any of their controlled Affiliates to,~~ may be redacted (i) ~~acquire or agree~~ as necessary to acquire by merging or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests or comply with contractual arrangements and (ii) take or agree to take any other action (including entering into or agreeing to enter into any material license, joint venture or other transaction), in each case that would reasonably be expected to (A) impose any material delay in the obtaining of, or increase the risk materially of not obtaining, approval from, or avoiding an Action by, any Governmental Authority as necessary to ~~consummate the transactions contemplated by~~ address reasonable privilege concerns. Notwithstanding anything in this Agreement to the contrary, nothing in this Section 5.07 shall require either party to provide to the other party or ~~the expiration or termination~~ its Representatives a copy of any applicable waiting period, (B) materially increase the risk of any Governmental Authority entering an Order prohibiting the consummation of the transactions contemplated by this Agreement or (C) otherwise materially delay or prevent the consummation of the transactions contemplated by this Agreementits HSR Act Filing.

Appears in 2 contracts

Samples: Transaction Agreement (Cyberonics Inc), Letter of Intent (Cyberonics Inc)

Appropriate Action; Consents; Filings. (a) ~~In accordance with the terms~~ Each of Seller and ~~subject~~ Buyer agrees to ~~the conditions of this Agreement (including Section 6.5), the parties hereto will~~ cooperate and respectively use ~~their respective~~ all reasonable ~~best~~ efforts to (i) take, or cause to be taken, all ~~actions~~appropriate action, and to do, or cause to be done, ~~and to assist and cooperate with the other parties in doing,~~ all things necessary, proper or advisable under applicable laws or otherwise to cause the conditions to the Closing to be satisfied by such party and to consummate and make effective the transactions contemplated hereby and to cause the conditions to the Merger set forth in Article VII to be satisfied as expeditiously as practicable (and in any event at least five (5) Business Days prior to the Outside Date), including using reasonable best efforts to accomplish the following: (i) the obtaining of all necessary or advisable actions or non-actions, waivers, Consents and approvals from Governmental Authorities necessary or advisable in connection with the consummation of the transactions contemplated by this Agreement, ~~including the Merger, the Non-Arriver Extraction~~ and the Arriver Sale and the making of all necessary or advisable registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary or advisable to obtain an approval from, or to avoid any Action by, any Governmental Authority in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, the Non-Arriver Extraction and the Arriver Sale, (ii) ~~the obtaining of~~ make all ~~other~~ necessary filings and obtain from any governmental or regulatory authorities or third parties any consents, ~~approvals~~ licenses, permits, waivers, approvals, authorizations or ~~waivers from Third Parties (provided that none of the Company, the Acquiring Parties or Merger Sub shall be~~ orders required to ~~make~~ be obtained or agree to make any payment or accept any material conditions or obligations with respect thereto, except as expressly set forth in Section 6.10(c)), including in respect of the Non-Arriver Extraction and the Arriver Sale, (iii) the defending of any Actions, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed and (iv) the execution and delivery of any additional instruments necessary to consummate the Merger and any other transactions to be performed or consummated made by such party in ~~accordance with~~ order to consummate and thereafter make effective the ~~terms~~ transactions contemplated hereby as promptly as practicable. Without limitation of the foregoing, Buyer shall submit applications for all licenses and permits necessary for Buyer to own and operate the Stores as promptly as practicable after the date of this Agreement and, where permitted by applicable law and regulations, will use its commercially reasonable efforts to ~~carry out fully~~ apply for temporary licenses or permits to the ~~purposes of this Agreement~~extent necessary to avoid any delay in Closing. (b) ~~Each~~ To the extent that any liquor licenses or other Permits at the Stores have not been effectively transferred to Buyer (or otherwise re-issued in Buyer's name) at the Closing Date, then to the extent permitted by applicable laws and regulations, Seller agrees to allow Buyer to operate the applicable Store under Seller's Permits for a period of up to 180 days after the parties hereto shall promptly (and, in the case of filings required under the HSR Act, in no event later than fifteen (15) Business Days following the date hereof) (i) make and not withdraw any applicable filings under the HSR ActClosing, and thereafter make any other applications and filings required or advisable under the Antitrust Laws or Investment Screening Laws of the jurisdictions set forth on Section 6.3(a) of the Company Disclosure Letter with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale, (ii) comply at the earliest practicable date with any request under the HSR Act for additional information (including responding to any “second request”), documents or other materials received by such party from the U.S. Federal Trade Commission, the Antitrust Division of the U.S. Department of Justice or from any other Governmental Authority under any Antitrust Laws or Investment Screening Laws in respect of any such filings with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale and (iii) act in good faith and reasonably cooperate with each other party in connection with any such filings (including, furtherance thereof if requested by another party, considering in good faith all reasonable additions, deletions or changes suggested by the other party in connection therewith) and in connection with resolving any investigation or other inquiry of such agency or other Governmental Authority under any Antitrust Laws and Investment Screening Laws. In taking the foregoing actions, each of the Company and the Acquiring Parties shall act reasonably and as promptly as practicable. Notwithstanding anything in this Agreement to the contrary, obtaining any Third Party Consents or waivers pursuant to Section 6.3(a)(ii) above or otherwise, including any Consents required in connection with the Non-Arriver Extraction or the Arriver Sale, shall not be a condition to the obligations of any party to consummate the Merger. (c) Without limiting anything in this Section 6.3 (i) none of the parties hereto or their respective Affiliates shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby, except with the prior written consent of the other parties hereto and (ii) the Acquiring Parties and Merger Sub agree to take (and to cause their Affiliates to take) promptly any and all steps necessary or reasonably advisable or as may be required by any Governmental Authority to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws or Investment Screening Laws that may be required by any Governmental Authority so as to enable the parties to consummate the transactions contemplated by this Agreement, including the Merger, the Non-Arriver Extraction and the Arriver Sale as expeditiously as possible (and in any event at least five (5) Business Days Buyer prior to the Outside Date), including committing to and effecting, by consent decree, hold separate order, trust or otherwise, (A) selling, divesting, licensing or otherwise disposing of, or holding separate and agreeing to sell, divest, license or otherwise dispose of, any assets of the CompanyClosing, the Acquiring Parties, Merger Sub or their respective Affiliates, (B) terminating, amending or assigning existing relationships and contractual rights and obligations, (C) requiring the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates to grant any right or commercial or other accommodation to, or parties shall enter into any material commercial contractual or other commercial relationship with, any Third Party and (D) imposing limitations on the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates with respect to how they own, retain, conduct or operate all or any portion of their respective businesses or assets (clauses (A) through (D) shall be referred to as “Remedy Actions”). Notwithstanding anything to the contrary set forth in this Section 6.3, the Acquiring Parties and Merger Sub shall not be required to commit or agree to, and the Company shall not be permitted to commit or agree to without the consent of the Acquiring Parties, any such Remedy Action contemplated by clause (ii) above to the extent any such Remedy Action contemplated by clause (ii) above (x) is not conditioned upon the consummation of the transactions contemplated by this Agreement or (y) would require, or cause to be taken, (1) any sale, divestiture, licensing or other disposal of, or other action with respect to, any assets or businesses of QUALCOMM Technology Licensing, (2) any sale, divestiture, licensing or other disposal of any assets or businesses of the Arriver Business, or any other action with respect to any assets or businesses of the Arriver Business, that would materially diminish or materially interfere with the benefits that QUALCOMM reasonably expects to receive from its ownership of the Arriver Business, (3) any sale or divestiture of any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a fair market value (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the economic impact determined with respect to any actions taken pursuant to the following clause (4), or (4) any other action (excluding sales or divestitures) with respect to any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a net negative economic impact (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the fair market value determined with respect to any actions taken pursuant written management agreement to the foregoing ~~clause (3)~~effect and otherwise in customary form. (d) 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 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 substantive meetings or discussions 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 either party and any Governmental Authority with respect to this Agreement; provided that, notwithstanding anything in this Agreement to the contrary, the Acquiring Parties shall determine the strategy to be pursued for obtaining and lead the effort to obtain all necessary actions or nonactions and consents from Governmental Authorities, including any related litigation and Remedy Actions, pursuant to any Antitrust Law in connection with the transactions contemplated by this Agreement, and the Company shall take all reasonably requested actions to support the Acquiring Parties in connection therewith. Notwithstanding anything to the contrary contained in this Agreement, the Acquiring Parties shall consult with the Company and consider in good faith the views of the Company in connection with all material communications with a Governmental Authority and strategy regarding the Antitrust Laws. (e) The Company and the Acquiring Parties, in their respective sole and absolute discretion, may (x) redact materials as necessary to comply with contractual arrangements address reasonable attorney client or other privilege or confidentiality concerns, exclude any information relating to Company valuation and similar matters relating to the transactions contemplated herein, and (y) designate any competitively sensitive material as “Outside Counsel Only Material” such that such materials and the information contained therein shall be given only to the outside counsel of the recipient and will not be disclosed to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel. (f) The Acquiring Parties and Merger Sub shall not, and shall not permit any of their controlled Affiliates to, (i) acquire or agree to acquire by merging or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests or (ii) take or agree to take any other action (including entering into or agreeing to enter into any material license, joint venture or other transaction), in each case that would reasonably be expected to (A) impose any material delay in the obtaining of, or increase the risk materially of not obtaining, approval from, or avoiding an Action by, any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period, (B) materially increase the risk of any Governmental Authority entering an Order prohibiting the consummation of the transactions contemplated by this Agreement or (C) otherwise materially delay or prevent the consummation of the transactions contemplated by this Agreement.

Appears in 1 contract

Samples: Asset Purchase Agreement (Caseys General Stores Inc)

Appropriate Action; Consents; Filings. (a) In accordance with the terms and subject to the terms and conditions of this Agreement (including Section 6.5), the parties hereto will (and will cause their controlled Affiliates) (and, in the case of Parent, any direct or indirect corporate parent) to) use their respective reasonable best efforts ~~to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable~~ to consummate and make effective the transactions contemplated hereby and to cause the conditions to the Merger set forth in Article VII to be satisfied as expeditiously as practicable (and in any event at least five (5) Business Days prior to the ~~Outside~~ Termination Date), including using reasonable best efforts to accomplish the following: (i) the obtaining of all necessary ~~or advisable~~ actions or non-~~actions, waivers,~~ actions and Consents ~~and approvals~~ from Governmental Authorities necessary ~~or advisable~~ in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale~~ and the making of all necessary ~~or advisable~~ registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary ~~or advisable~~ to obtain an approval from, or to avoid any Action by, any Governmental Authority necessary in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale,~~ (ii) the obtaining of all other necessary ~~consents, approvals~~ Consents or waivers from Third Parties (provided that ~~none of~~ the ~~Company, the Acquiring Parties or Merger Sub~~ Company shall not be required to make or agree to make any payment or accept any material ~~conditions~~ conditions, amendments or obligations with respect thereto~~, except as expressly set forth in Section 6.10(c~~)~~), including in respect of the Non-Arriver Extraction and the Arriver Sale~~, (iii) the contesting and defending of any Actions, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale~~ including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed and (iv) the execution and delivery of any additional instruments 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 promptly and cause its Affiliates to promptly (and, in the case of filings required under the HSR Act, in no event later than ~~fifteen~~ ten (1510) Business Days following the date hereof) (iA) make and not withdraw ~~any applicable~~ (without the Company’s prior written consent) its filings under the HSR Act, and thereafter make any other applications and filings required or advisable under the Antitrust Laws or Investment Screening Laws of the jurisdictions set forth on Section 6.3(a) of the Company Disclosure Letter Act with respect to the transactions contemplated hereby, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale,~~ (iiB) use its respective reasonable best efforts to comply ~~at the earliest~~ as promptly as practicable ~~date~~ with any request under the HSR Act for additional information (including responding to any “second request”), documents or other materials received by such party from the U.S. Federal Trade Commission, the Antitrust Division of the U.S. Department of Justice or ~~from~~ any other Governmental Authority under any Antitrust ~~Laws or Investment Screening~~ Laws in respect of any such filings with respect to the transactions contemplated hereby, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale~~ and (~~iii~~C) act in good faith and reasonably cooperate with ~~each~~ the other ~~party~~ parties hereto in connection with any such filings (including, if requested by ~~another party~~the other parties hereto, ~~considering in good faith~~ to accept all reasonable additions, deletions or changes suggested by the other ~~party~~ parties hereto in connection therewith) and in connection with resolving any investigation or other inquiry of such agency or other Governmental Authority under any Antitrust ~~Laws and Investment Screening~~ Laws. In taking the foregoing actions, each of the ~~Company~~ Company, Parent and ~~the Acquiring Parties~~ Acquisition Sub shall act reasonably and as promptly as practicable. Notwithstanding anything in this Agreement to the contrary, obtaining any ~~Third Party~~ Consents or waivers from any Third Party pursuant to Section 6.3(a)(ii) above or ~~otherwise, including any Consents required in connection with the Non-Arriver Extraction or the Arriver Sale,~~ otherwise shall not be a condition to the obligations of any party to consummate the Merger. No party hereto nor any of their respective Affiliates shall be required to offer, or make, any payment or concession (financial or otherwise) under this Section 6.3 that is not contingent on the Closing occurring. (cb) Without limiting anything in this Section 6.3 (iand notwithstanding any limitations in Section 6.3(a) ~~none of the parties hereto~~ or their respective Affiliates shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated herebyelsewhere in this Agreement, ~~except with the prior written consent of the other parties hereto~~ Parent and ~~(ii) the Acquiring Parties and Merger~~ Acquisition Sub agree to ~~take~~ (and to shall cause ~~their Affiliates to take~~each of its Subsidiaries to) promptly take any and all steps necessary or reasonably advisable or as may be required by any Governmental Authority to avoid or eliminate each and every impediment and obtain all Consents (including under any Antitrust ~~Laws or Investment Screening Laws~~ Laws) that may be required by any Governmental Authority so as to enable the parties to consummate the transactions contemplated by this Agreement, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale~~ as expeditiously as possible (and in any event at least five (5) Business Days prior to the ~~Outside~~ Termination Date), including committing to and effecting, by consent decree, hold separate order, trust or otherwise, (Ai) selling, divesting, licensing or otherwise disposing of, or holding separate and agreeing to sell, divest, license or otherwise dispose of, any assets of the ~~Company, the Acquiring Parties, Merger~~ Company or its Subsidiaries or of Parent or Acquisition Sub or their respective ~~Affiliates~~Subsidiaries, (Bii) terminating, amending or assigning existing relationships and contractual rights and obligations, (Ciii) requiring ~~the Acquiring Parties, Merger Sub,~~ Parent or Acquisition Sub or the Company or any of their respective ~~Affiliates~~ Subsidiaries to grant any right or commercial or other accommodation to, or enter into any material commercial contractual or other commercial relationship with, any Third Party and (Div) imposing limitations on ~~the Acquiring Parties, Merger Sub,~~ Parent or Acquisition Sub or the Company or any of their respective ~~Affiliates~~ Subsidiaries with respect to how they own, retain, conduct or operate all or any portion of their respective businesses or assets (~~clauses (A) through (D~~each, a “Remedial Action”); provided, that this Section 6.3(b) shall ~~be referred to as “Remedy Actions”). Notwithstanding anything to the contrary set forth in this Section 6.3, the Acquiring Parties and Merger Sub shall~~ not be required to commit or agree to, and the Company shall not be permitted to commit or agree to without the consent of the Acquiring Parties, any such Remedy Action contemplated by clause (ii) above to the extent any such Remedy Action contemplated by clause (ii) above (x) is not conditioned upon the consummation of the transactions contemplated by this Agreement or (y) would require, or cause to be taken, (1) any sale, divestiture, licensing or other disposal of, or other action with respect to, any assets or businesses of QUALCOMM Technology Licensing, (2) any sale, divestiture, licensing or other disposal of any assets or businesses of the Arriver Business, or any other action with respect to any assets or businesses of the Arriver Business, that would materially diminish or materially interfere with the benefits that QUALCOMM reasonably expects to receive from its ownership of the Arriver Business, (3) any sale or divestiture of any assets or businesses of QUALCOMM require Parent or any of its ~~Subsidiaries, or with respect~~ Subsidiaries to take any ~~assets or businesses of the Company or its Subsidiaries~~Remedial Actions, that individually or in the aggregate, would reasonably be expected to have a ~~fair market value~~ material and adverse effect on either (~~measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith~~A) Parent and its Subsidiaries, ~~which may include an evaluation by~~ taken as a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the economic impact determined with respect to any actions taken pursuant to the following clause (4)whole, or (4B) ~~any other action (excluding sales or divestitures) with respect to any assets or businesses of QUALCOMM or any of~~ the Company and its Subsidiaries, ~~or with respect to any assets or businesses of the Company or its Subsidiaries~~taken as a whole, ~~that individually or~~ in each case as determined in the ~~aggregate, have a net negative economic impact (measured at the time~~ reasonable judgment of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the fair market value determined with respect to any actions taken pursuant to the foregoing clause (3)Parent. (dc) Each of the parties hereto will (and will cause its Affiliates to) 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 reasonably cooperate in good faith in responding to any inquiry from a Governmental Authority, including (i) promptly informing the other ~~party~~ parties hereto of such inquiry, (ii) consulting in advance before making any presentations or submissions to a Governmental Authority, (iii) giving the other ~~party~~ parties hereto 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 each other with copies of all material correspondence, filings or communications between either party and any Governmental Authority with respect to this Agreement; provided that, notwithstanding anything in this Agreement to the contrary, the Acquiring Parties shall determine the strategy to be pursued for obtaining and lead the effort to obtain all necessary actions or nonactions and consents from Governmental Authorities, including any related litigation and Remedy Actions, pursuant to any Antitrust Law in connection with the transactions contemplated by this Agreement, and the Company shall take all reasonably requested actions to support the Acquiring Parties in connection therewith. Notwithstanding anything to the contrary contained in this Agreement, ~~the Acquiring Parties~~ Parent shall consult with the Company and consider in good faith the views of the Company in connection with all material communications with a any Governmental Authority and strategy regarding the Antitrust Laws~~. (e)~~ . The Company and ~~the Acquiring Parties~~Parent, in their respective sole and absolute discretion, may (x) redact materials as necessary to comply with contractual arrangements address reasonable attorney client or other privilege or confidentiality concerns, exclude any information relating to Company valuation and similar matters relating to the transactions contemplated herein, and (y) designate any competitively sensitive material as “Outside Counsel Only Material” such that such materials and the information contained therein shall be given only to the outside counsel of the recipient and will not be disclosed to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel. (fd) ~~The Acquiring Parties and Merger Sub~~ Without limiting the generality of Section 6.3(a), the Company shall ~~not~~cause to be made (including by its Subsidiaries), ~~and shall not permit~~ as promptly as practicable following the date hereof (but in any ~~of their controlled Affiliates to~~event, within fifteen (15) Business Days), (i) ~~acquire or agree~~ the filing required to ~~acquire by merging or consolidating with~~obtain the TDI Consent, or by purchasing a portion of the assets of or equity in, or by any other manner, any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests or and (ii) ~~take~~ an application or ~~agree~~ applications to ~~take~~ FINRA pursuant to FINRA Rule 1017(a)(4) (the “1017 Application”) for approval of the change in ownership and control of the Registered Broker-Dealer resulting from the consummation of the transactions contemplated hereby (“FINRA Approval”) with the request to FINRA that it be reviewed on a “Fast Track” basis, and Parent shall promptly provide or cause to be provided to the Company all information reasonably requested by the Company as is necessary to effect such application(s) for FINRA Approval. Parent acknowledges and agrees that, notwithstanding anything in this Agreement to the contrary, the Company shall not be obligated to take, and, during the Pre-Closing Period, Parent shall refrain from taking or proposing to take, any ~~other~~ action ~~(including entering into or agreeing~~ that could reasonably be expected to ~~enter into~~ give rise to any requirement for an application to FINRA pursuant to FINRA Rule 1017(a)(5) for approval of any material ~~license, joint venture or other transaction),~~ change in ~~each case~~ business operations of any Registered Broker-Dealer in connection with the transactions contemplated hereby that would reasonably be expected to ~~(A) impose~~ materially delay the Closing. Prior to making any ~~material delay~~ submission to FINRA or any other Governmental Authority, the Company shall, to the extent reasonably practicable, consult with Parent and provide Parent a reasonable opportunity to review and to propose comments and shall consider in good faith all additions, deletions or changes reasonably proposed by Parent in good faith, except, in each case, to the ~~obtaining of, or increase the risk materially of not obtaining, approval from, or avoiding an Action by,~~ extent prohibited by Law Prior to making any submission to any Governmental Authority, Parent shall, to the extent reasonably practicable, consult with the Company and provide the Company a reasonable opportunity to review and to propose comments and shall consider in good faith all additions, deletions or changes reasonably proposed by the Company in good faith, except, in each case, to the extent prohibited by Law. Parent, the Company and their respective Affiliates shall also provide the other party or the other party’s counsel the opportunity to participate in any discussions with FINRA concerning the 1017 Application or any other Governmental Authority ~~necessary to consummate~~ concerning the transactions contemplated ~~by this Agreement or the expiration or termination~~ hereby. The provisions of ~~any applicable waiting period, (B~~Section 6.3(b) ~~materially increase the risk of any Governmental Authority entering an Order prohibiting the consummation of~~ shall apply to all filings and correspondence with FINRA relating to the transactions contemplated hereby, including the Merger, mutatis mutandis. (e) During the Pre-Closing Period, Parent and Acquisition Sub shall not (and shall cause their respective Affiliates not to) take or permit any action that would result in any of the representations or warranties in Section 5.5 to become untrue or inaccurate at any time (as though made as of such time in a manner which would be reasonably expected to materially delay the Closing). (f) This Section 6.3 shall not apply to (i) the obtaining of Advisory Client consents, which shall be governed exclusively by ~~this Agreement~~ Section 6.18, (ii) the obligations of Parent and Acquisition Sub to obtain financing, which shall be exclusively governed by Section 6.11, or (Ciii) ~~otherwise materially delay or prevent~~ the ~~consummation~~ obligations of the ~~transactions contemplated~~ Company to cooperate with such financing, which shall be exclusively governed by Section 6.12. Notwithstanding anything to the contrary in the foregoing, nothing in this Section 6.3 shall restrict or limit the ability of the Company and its Representatives to take actions in accordance with Section 6.5 or Section 8.1. (g) All non-public or other confidential information provided by Parent or any of its Affiliates pursuant to this Section 6.3 shall be kept confidential in accordance with that certain Confidentiality and Non-Disclosure Agreement, dated as of September 3, 2023 (the “Parent Confidentiality Agreement”), by and between Parent and the Company.

Appears in 1 contract

Samples: Merger Agreement (Avantax, Inc.)

Appropriate Action; Consents; Filings. (a) In accordance with the terms and subject to the conditions of this Agreement (including Section 6.5), the parties hereto will use their respective reasonable best efforts ~~to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable~~ to consummate and make effective the transactions contemplated hereby and to cause the conditions to the Merger set forth in Article VII to be satisfied as expeditiously as practicable (and in any event at least five (5) Business Days prior to the ~~Outside~~ Termination Date), including using reasonable best efforts to accomplish the following: (i) the obtaining of all necessary ~~or advisable~~ actions or non-actions~~, waivers~~, Consents and approvals from Governmental Authorities necessary ~~or advisable~~ in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale~~ and the making of all necessary ~~or advisable~~ registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary ~~or advisable~~ to obtain an approval from, or to avoid any Action by, any Governmental Authority necessary in connection with the consummation of the transactions contemplated by this Agreement, including the ~~Merger~~Merger (any such Action, ~~the Non-Arriver Extraction and the Arriver Sale~~“Merger Litigation”), (ii) the obtaining of all other necessary consents, approvals or waivers from Third Parties (provided that ~~none of~~ the ~~Company, the Acquiring Parties or Merger Sub~~ Company shall not be required to make or agree to make any payment to such Third Parties or accept any material conditions or obligations with respect thereto~~, except as expressly set forth in Section 6.10(c~~)~~), including in respect of the Non-Arriver Extraction and the Arriver Sale~~, (iii) the defending of any ~~Actions~~lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale~~ including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed and (iv) the execution and delivery of any additional instruments 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. . The Company shall give Parent the right to review and comment on all material filings or responses to be made by the Company in connection with any Merger Litigation, and the right to consult on the settlement with respect to such Merger Litigation, and the Company will in good faith take such comments into account and no such settlement shall be agreed to, or offered, with respect to the Company without Parent’s prior written consent (b) such consent not to be unreasonably withheld, conditioned or delayed). Each of the parties hereto shall (A) promptly (~~and, in the case of filings required under the HSR Act,~~ and in no event later than ~~fifteen~~ ten (1510) Business Days following the date hereof) ~~(i)~~ make ~~and not withdraw any applicable~~ its filings under the HSR Act, and as soon as reasonably practicable thereafter make any other applications and filings required ~~or advisable~~ under the Antitrust ~~Laws or~~ and Foreign Investment ~~Screening~~ Laws of the jurisdictions set forth on Section 6.3(a) of the Company Disclosure Letter with respect to the transactions contemplated hereby, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale,~~ (iiB) ~~comply~~ respond to at the earliest practicable date ~~with~~ any request under the HSR Act for additional information (including responding to any “second request”), documents or other materials received by such party from the U.S. Federal Trade Commission, the Antitrust Division of the U.S. Department of Justice or ~~from~~ by any other Governmental Authority under any Antitrust ~~Laws or~~ and Foreign Investment ~~Screening~~ Laws in respect of any such filings with respect to the transactions contemplated hereby, including the ~~Merger, the Non-Arriver Extraction and the Arriver Sale~~ Merger and (~~iii~~C) act in good faith and reasonably cooperate with ~~each~~ the other party in connection with any such filings (including, if requested by ~~another~~ the other party, ~~considering in good faith~~ to consider all reasonable material additions, deletions or changes suggested by the other party in connection therewith) and in connection with resolving any investigation or other inquiry of such agency or other Governmental Authority under any Antitrust ~~Laws~~ and Foreign Investment ~~Screening~~ Laws. In taking the foregoing actions, each of the Company and ~~the Acquiring Parties~~ Parent shall act reasonably and as promptly as practicable. Notwithstanding anything in this Agreement to the contrary, obtaining any Third Party Consents or waivers pursuant to Section 6.3(a)(ii) above or ~~otherwise, including any Consents required in connection with the Non-Arriver Extraction or the Arriver Sale,~~ otherwise shall not be a condition to the obligations of any party to consummate the Merger. (cb) Without limiting anything in this Section ~~6.3~~ 6.3, (i) none of the parties hereto or their respective Affiliates shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby, except with the prior written consent of the other parties hereto and (ii) ~~the Acquiring Parties~~ Parent and ~~Merger~~ Acquisition Sub agree to take ~~(and to cause their Affiliates to take)~~ promptly any and all steps necessary or reasonably advisable or as may be required by any Governmental Authority to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws ~~or Investment Screening Laws~~ that may be required by any Governmental Authority so as to enable the parties to consummate the transactions contemplated by this Agreement, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale~~ as expeditiously as possible (and in any event at least five (5) Business Days prior to the ~~Outside~~ Termination Date), including committing to and effecting, by consent decree, hold separate order, trust or otherwise, (A) selling, divesting, licensing or otherwise disposing of, or holding separate and agreeing to sell, divest, license or otherwise dispose of, any assets of the ~~Company, the Acquiring Parties, Merger Sub~~ Company or ~~their respective Affiliates~~its Subsidiaries or of Parent or Acquisition Sub, (B) terminating, amending or assigning existing relationships and contractual rights and ~~obligations~~obligations of the Company or its Subsidiaries or of Parent or Acquisition Sub, (C) requiring ~~the Acquiring Parties, Merger Sub,~~ Parent or Acquisition Sub or the Company or ~~any of their respective Affiliates~~ its Subsidiaries, to grant any right or commercial or other accommodation to, or enter into any material commercial contractual or other commercial relationship with, any Third Party and (D) imposing limitations on ~~the Acquiring Parties, Merger Sub,~~ Parent or Acquisition Sub or the Company or ~~any of their respective Affiliates~~ its Subsidiaries, with respect to how they own, retain, conduct or operate all or any portion of their respective businesses or assets (clauses (A) through (D) shall be referred to as “Remedy Actions”). Notwithstanding anything to the contrary set forth in this Section 6.3, the Acquiring Parties and Merger Sub shall not be required to commit or agree to, and the Company shall not be permitted to commit or agree to without the consent of the Acquiring Parties, assets; provided that any such ~~Remedy Action~~ action contemplated by clause (ii) above ~~to the extent any such Remedy Action contemplated by clause (ii) above (x)~~ is ~~not~~ conditioned upon the consummation of the transactions contemplated by this Agreement or (y) would require, or cause to be taken, (1) any sale, divestiture, licensing or other disposal of, or other action with respect to, any assets or businesses of QUALCOMM Technology Licensing, (2) any sale, divestiture, licensing or other disposal of any assets or businesses of the Arriver Business, or any other action with respect to any assets or businesses of the Arriver Business, that would materially diminish or materially interfere with the benefits that QUALCOMM reasonably expects to receive from its ownership of the Arriver Business, (3) any sale or divestiture of any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a fair market value (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the economic impact determined with respect to any actions taken pursuant to the following clause (4), or (4) any other action (excluding sales or divestitures) with respect to any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a net negative economic impact (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the fair market value determined with respect to any actions taken pursuant to the foregoing clause (3)Agreement. (dc) 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 inquiry from a Governmental Authority, including (i) promptly informing the other party of such inquiry, (ii) consulting in advance before making any material presentations or submissions to a Governmental Authority, (iii) giving the other party the opportunity to attend and participate in any substantive meetings or discussions with any Governmental Authority, to the extent not prohibited by such Governmental Authority and (iv) supplying each other with copies of all material correspondence, ~~filings~~ submissions or written communications between either party and any Governmental Authority with respect to this Agreement; ~~provided that~~provided, ~~notwithstanding anything in this Agreement~~ however, that the parties shall not be required to share copies of filings made under the contrary, the Acquiring Parties shall determine the strategy to be pursued for obtaining and lead the effort to obtain all necessary actions or nonactions and consents from Governmental Authorities, including any related litigation and Remedy Actions, pursuant to any Antitrust Law in connection with the transactions contemplated by this Agreement, and the Company shall take all reasonably requested actions to support the Acquiring Parties in connection therewithHSR Act. Notwithstanding anything to the contrary contained in this Agreement, the Acquiring Parties shall consult with the Company and consider in good faith the views of the Company in connection with all material communications with a Governmental Authority and strategy regarding the Antitrust Laws. (e) The Company and ~~the Acquiring Parties~~Parent, in their respective sole and absolute discretion, may ~~(x)~~ redact ~~materials~~ material as necessary to comply with contractual ~~arrangements~~ arrangements, address reasonable ~~attorney~~ attorney-client or other privilege or confidentiality concerns, exclude any information relating to Company valuation and similar matters relating to the transactions contemplated herein, ~~and (y)~~ or designate any competitively sensitive material as “Outside Counsel Only Material” such that such materials and the information contained therein shall be given only to the outside counsel of the recipient and will not be disclosed to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel. (fd) ~~The Acquiring Parties~~ Parent and ~~Merger~~ Acquisition Sub shall ~~not, and shall~~ not ~~permit any of their controlled Affiliates to,~~ (i) acquire or agree to acquire by merging or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests or (ii) take or agree to take any other action (including entering into or agreeing to enter into any material license, joint venture or other transaction), in each case that would reasonably be expected to (A) impose any ~~material~~ delay in the obtaining of, or increase the risk ~~materially~~ of not obtaining, approval from, or avoiding an Action by, any Governmental Authority under Antitrust and Foreign Investment Laws necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period, (B) ~~materially~~ increase the risk of any Governmental Authority entering an Order under Antitrust and Foreign Investment Laws prohibiting the consummation of the transactions contemplated by this Agreement or (C) otherwise ~~materially~~ delay or prevent the consummation of the transactions contemplated by this Agreement.

Appears in 1 contract

Samples: Merger Agreement (Corelogic, Inc.)

Appropriate Action; Consents; Filings. (a) ~~In accordance with~~ Subject to the terms ~~and subject to the conditions~~ of this ~~Agreement (including Section 6.5)~~Agreement, the parties hereto will use their respective reasonable best efforts ~~to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable~~ to consummate and make effective the transactions contemplated hereby and to cause the conditions to of the Merger set forth in Article ~~VII~~ VI to be ~~satisfied as expeditiously as practicable~~ satisfied, including (i) in the case of Parent, the obtaining of all necessary approvals under any applicable communication Laws required in connection with this Agreement, the Merger and the other transactions contemplated by this Agreement, including any obligations of Parent in ~~any event at least five (5) Business Days prior~~ accordance with Section 5.05(b), and making the initial filings and notices related to the ~~Outside~~ satisfaction of the conditions in Sections 6.03(e) and 6.03(f) within thirty (30) days of the date hereof (the “Condition Filing Date”)~~, including using reasonable best efforts to accomplish the following:~~ ; (iii) the obtaining of all necessary ~~or advisable~~ actions or non-actions, ~~waivers, Consents~~ consents and approvals from Governmental ~~Authorities~~ Entities or other persons necessary ~~or advisable~~ in connection with the consummation of the transactions contemplated by this ~~Agreement, including the Merger, the Non-Arriver Extraction and the Arriver Sale~~ Agreement and the making of all necessary ~~or advisable registrations~~ registration and filings (including filings with Governmental ~~Authorities~~Entities, if any) and the taking of all reasonable steps as may be necessary ~~or advisable~~ to obtain an approval from, or to avoid ~~any Action~~ an action or proceeding by, any Governmental ~~Authority~~ Entity or other Persons necessary in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, the Non-Arriver Extraction and the Arriver Sale, (ii) the obtaining of all other necessary consents, approvals or waivers from Third Parties (provided that none of the Company, the Acquiring Parties or Merger Sub shall be required to make or agree to make any payment or accept any material conditions or obligations with respect thereto, except as expressly set forth in Section 6.10(c)), including in respect of the Non-Arriver Extraction and the Arriver Sale, ; (iii) the defending of any ~~Actions~~lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions ~~contemplated hereby~~performed or consummated by such party in accordance with the terms of this Agreement, ~~including the Merger, the Non-Arriver Extraction and the Arriver Sale~~ including seeking to have any stay or temporary restraining order entered by any court or other Governmental ~~Authority~~ Entity vacated or ~~reversed~~ reversed; and (iv) the execution and delivery of any additional instruments necessary to consummate the Merger and ~~any~~ other transactions to be performed or consummated by such party in accordance with the terms of this Agreement and to fully carry out ~~fully~~ the purposes of this Agreement. (b) ~~Each~~ In furtherance of the foregoing, except as otherwise contemplated by this Agreement, (i) each of the parties hereto shall promptly (~~and, in the case of filings required under the HSR Act,~~ in no event later than fifteen (15) Business Days following the date ~~hereof) (i~~that this Agreement is executed) make ~~and not withdraw any applicable filings under the HSR Act~~its respective filings, and thereafter make any other ~~applications and filings~~ required ~~or advisable~~ submissions under the ~~Antitrust~~ HSR Act and any applicable non-U.S. competition or antitrust Laws ~~or Investment Screening Laws of the jurisdictions set forth on Section 6.3(a) of the Company Disclosure Letter~~ with respect to the transactions contemplated hereby~~, including the Merger, the Non-Arriver Extraction and the Arriver Sale,~~ ; (ii) comply at the earliest practicable date with any request under the HSR Act for additional information (including responding to any “second request”), documents or other materials received by such party from the U.S. Federal Trade Commission, the Antitrust Division of the U.S. Department of Justice or from any other Governmental Authority under any Antitrust Laws or Investment Screening Laws in respect of any such filings with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale and (iii) act in good faith and reasonably cooperate with each other party in connection with any such filings (including, if requested by another party, considering in good faith all reasonable additions, deletions or changes suggested by the other party in connection therewith) and in connection with resolving any investigation or other inquiry of such agency or other Governmental Authority under any Antitrust Laws and Investment Screening Laws. In taking the foregoing actions, each of the Company and the Acquiring Parties shall act reasonably and as promptly as practicable. Notwithstanding anything in this Agreement to the contrary, obtaining any Third Party Consents or waivers pursuant to Section 6.3(a)(ii) above or otherwise, including any Consents required in connection with the Non-Arriver Extraction or the Arriver Sale, shall not be a condition to the obligations of any party to consummate the Merger. (c) Without limiting anything in this Section 6.3 (i) none of the parties hereto or their respective Affiliates shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby, except with the prior written consent of the other parties hereto and (ii) the Acquiring Parties and Merger Sub agree to take (and to cause their Affiliates to take) promptly any and all steps necessary or reasonably advisable or as may be required by any Governmental Authority to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws or Investment Screening Laws that may be required by any Governmental Authority so as to enable the parties to consummate the transactions contemplated by this Agreement, including the Merger, the Non-Arriver Extraction and the Arriver Sale as expeditiously as possible (and in any event at least five (5) Business Days prior to the Outside Date), including committing to and effecting, by consent decree, hold separate order, trust or otherwise, (A) selling, divesting, licensing or otherwise disposing of, or holding separate and agreeing to sell, divest, license or otherwise dispose of, any assets of the Company, the Acquiring Parties, Merger Sub or their respective Affiliates, (B) terminating, amending or assigning existing relationships and contractual rights and obligations, (C) requiring the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates to grant any right or commercial or other accommodation to, or enter into any material commercial contractual or other commercial relationship with, any Third Party and (D) imposing limitations on the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates with respect to how they own, retain, conduct or operate all or any portion of their respective businesses or assets (clauses (A) through (D) shall be referred to as “Remedy Actions”). Notwithstanding anything to the contrary set forth in this Section 6.3, the Acquiring Parties and Merger Sub shall not be required to commit or agree to, Parent and the Company shall ~~not be permitted to commit or agree to without~~ cooperate, and the ~~consent of the Acquiring Parties~~Company, ~~any such Remedy Action contemplated by clause (ii) above~~ to the extent ~~any~~ not inconsistent with its contractual or fiduciary obligations, shall use reasonable best efforts to cause Cumulus Media Partners, LLC to cooperate, to prepare such ~~Remedy Action contemplated by clause~~ applications as may be necessary for submission to the FCC in order to obtain the Initial Order (iithe “FCC Applications”) ~~above~~ and shall promptly file (~~x) is not conditioned upon~~ the ~~consummation~~ earlier of the ~~transactions contemplated by~~ actual filing date and the date that is forty-five (45) Business Days following the date that this Agreement or is executed being the “FCC Filing Date”) such FCC Applications with the FCC; (yiii) ~~would require, or cause to~~ Parent and/or the Company shall file such applications (the “Divestiture Applications”) with the FCC as may be taken, (1) any sale, divestiture, licensing or other disposal of, or other action with respect to, any assets or businesses of QUALCOMM Technology Licensing, (2) any sale, divestiture, licensing or other disposal of any assets or businesses necessary under the Communications Act and FCC rules and policies which propose the assignment of the Arriver Business, or any other action with respect to any assets or businesses of the Arriver Business, that would materially diminish or materially interfere with the benefits that QUALCOMM reasonably expects to receive from its ownership of the Arriver Business, (3) any sale or divestiture of any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or Commission Authorizations identified in the aggregate, have a fair market value (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section ~~6.3(c~~3.07(e) of the Company Disclosure Letter ~~less~~ to third parties or to a divestiture trust (the ~~amount~~ “Trust”) that would, upon consummation, enable Parent to be in compliance with the FCC Media Ownership Rules as of the ~~economic impact determined~~ Effective Time, and (iv) each of Parent and the Company shall (A) diligently take, or cooperate in the taking of, all necessary, desirable and proper actions, and provide any additional information, reasonably required or requested by the FCC with respect to the FCC Applications and the Divestiture Applications; (B) keep the other informed of any ~~actions taken pursuant to~~ material communications (including any meeting, conference or telephonic call) and will provide the ~~following clause~~ other copies of all correspondence between it (~~4),~~ or (4its advisors) ~~any other action (excluding sales or divestitures)~~ and the FCC with respect to the FCC Applications and the Divestiture Applications; (C) permit the other to review any ~~assets~~ material communication relating to the FCC Applications and the Divestiture Applications to be given by it to the FCC; (D) notify the other in the event it becomes aware of any other facts, actions, communications or ~~businesses~~ occurrences that might directly or indirectly affect Parent’s or the Company’s intent or ability to effect prompt FCC approval of ~~QUALCOMM~~ the FCC Applications and the Divestiture Applications; (E) oppose, and the Company shall, to the extent not inconsistent with its contractual or fiduciary obligations, use reasonable best efforts to cause Cumulus Media Partners, LLC to oppose, any ~~of its Subsidiaries,~~ petitions to deny or other objections filed with respect to the FCC Applications or the Divestiture Applications and any ~~assets~~ requests for reconsideration or ~~businesses~~ judicial review of the Initial Order; and (F) not take, and the Company shall, to the extent not inconsistent with its contractual or ~~its Subsidiaries~~fiduciary obligations, use reasonable best efforts to cause Cumulus Media Partners, LLC not to take, any action that ~~individually~~ would reasonably be expected to materially delay, materially impede or in prevent receipt of the ~~aggregate, have a net negative economic impact (measured at~~ Initial Order or the ~~time~~ FCC’s grant of ~~such request using customary valuation methodologies to be agreed~~ the Divestiture Applications. The fees required by the ~~parties hereto in good faith, which may include an evaluation~~ FCC for the filing of the FCC Applications and the Divestiture Applications shall be borne one-half by ~~a third party that is mutually selected~~ Parent (on behalf of Merger Sub) and one-half by the ~~Parties~~Company. The procedures for any Divestiture (including the selection of specific stations) ~~in excess~~ shall be subject to coordination, review and reasonable approval of Parent and the ~~amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the fair market value determined with respect to any actions taken pursuant to the foregoing clause (3)~~Company. (dc) Each of Parent and the Company shall give and the Company shall, to the extent not inconsistent with its contractual or fiduciary obligations, use reasonable best efforts to cause Cumulus Media Partners, LLC to give, any notices to third parties, and Parent and the Company shall use, and the Company shall, to the extent not inconsistent with its contractual or fiduciary obligations, use reasonable best efforts to cause Cumulus Media Partners, LLC to use, its reasonable best efforts to obtain any third party consents not covered by paragraphs (a) and (b) above, necessary, proper or advisable to consummate the Merger. Each of the parties hereto will furnish to the other such necessary information and reasonable assistance as the other may ~~reasonably~~ request in connection with the preparation of any required governmental filings or submissions and will cooperate in responding to any inquiry from a Governmental ~~Authority~~Entity, including ~~(i) promptly~~ immediately informing the other party of such inquiry, ~~(ii)~~ consulting in advance before making any presentations or submissions to a Governmental ~~Authority~~Entity, ~~(iii) giving the other party the opportunity to attend~~ and ~~participate in any substantive meetings or discussions with any Governmental Authority, to the extent not prohibited by such Governmental Authority and (iv)~~ supplying each other with copies of all material correspondence, filings or communications between either party and any Governmental ~~Authority~~ Entity with respect to this Agreement~~; provided that~~. (d) Parent and the Company acknowledge that license renewal applications (each, a “Renewal Application”) may be pending before the FCC with respect to the Company Stations (each, a “Renewal Station”). In order to avoid disruption or delay in the processing of the FCC Applications and the Divestiture Applications, the Company agrees to use its reasonable best efforts to promptly prosecute and resolve any issues with respect to pending Renewal Applications. Parent and the Company agree, to the extent reasonably necessary, to request that the FCC apply its policy permitting license assignments and transfers in transactions involving multiple markets to proceed, notwithstanding ~~anything in this Agreement~~ the pendency of one or more license renewal applications. Parent and the Company agree to make such representations and undertakings as necessary or appropriate to invoke such policy, including undertakings to assume the position of applicant with respect to any pending license renewal applications, and to assume the risks relating to such applications. To the extent reasonably necessary to expedite grant of a Renewal Application, and thereby facilitate grant of the FCC Applications and the Divestiture Applications, Parent and the Company shall enter into tolling agreements with the FCC with respect to the ~~contrary,~~ relevant Renewal Application as necessary or appropriate to extend the ~~Acquiring Parties shall~~ statute of limitations for the FCC to determine ~~the strategy to be pursued for obtaining and lead the effort to obtain all necessary actions~~ or ~~nonactions and consents from Governmental Authorities, including any related litigation and Remedy Actions, pursuant to any Antitrust Law~~ impose a forfeiture penalty against such Renewal Station in connection with any pending complaints, investigations, letters of inquiry, or other proceedings, including, but not limited to, complaints that such Renewal Station aired programming that contained obscene, indecent or profane material (a “Tolling Agreement”). Parent and the Company shall consult in good faith with each other prior to entering into any such Tolling Agreement. Section 5.05(d) of the Company Disclosure Letter sets forth all radio stations owned by the Company or any Subsidiary of the Company with Renewal Applications pending as of the date of this Agreement. (e) In addition to the filing of any Divestiture Applications as may be required by the Communications Act and FCC rules and policies, each of Parent and the Company agree to, and shall cause its Subsidiaries to, timely use their reasonable best efforts to take any and all steps necessary to avoid or eliminate each and every impediment and obtain all consents under any antitrust, competition or communications or broadcast law (including the FCC Media Ownership Rules) that may be required by any U.S. federal, state or local antitrust or competition Governmental Entity, or by the FCC, in each case with competent jurisdiction, so as to enable the parties to close the transactions contemplated by this ~~Agreement~~Agreement as promptly as practicable, including committing to or effecting, by consent decree, hold separate orders, trust or otherwise, the Divestiture of such assets as are required to be divested in order to obtain the Initial Order, or 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 ~~Company shall take all reasonably requested actions to support the Acquiring Parties in connection therewith. Notwithstanding anything to the contrary contained in~~ other transactions contemplated by this Agreement, the Acquiring Parties shall consult with the Company and consider in good faith the views of the Company in connection with all material communications with a Governmental Authority and strategy regarding the Antitrust Laws. (e) The Company and the Acquiring Parties, in their respective sole and absolute discretion, may (x) redact materials as necessary to comply with contractual arrangements address reasonable attorney client or other privilege or confidentiality concerns, exclude any information relating to Company valuation and similar matters relating to the transactions contemplated herein, and (y) designate any competitively sensitive material as “Outside Counsel Only Material” such that such materials and the information contained therein shall be given only to the outside counsel of the recipient and will not be disclosed to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel. (f) The ~~Acquiring Parties and Merger Sub shall not~~Company agrees to use, and ~~shall~~ cause its Subsidiaries to use and the Company shall, to the extent not ~~permit~~ inconsistent with its contractual or fiduciary obligations, use reasonable best efforts to cause Cumulus Media Partners, LLC to use, reasonable best efforts to correct any ~~of their controlled Affiliates to~~errors, inconsistencies or other problems with the Commission Authorizations. (ig) ~~acquire or agree to acquire by merging or consolidating with, or by purchasing a portion~~ Within thirty (30) Business Days of the ~~assets~~ date of this Agreement, the Company shall amend Section 3.07(e) of the Company Disclosure Letter to include a list of all unrated markets where the number of total radio stations or ~~equity in,~~ the number of radio stations in a particular radio service (AM or FM) owned by the Company or any ~~other manner,~~ Subsidiary of the Company (or in which the Company or any ~~business~~ Subsidiary of ~~any Person or other business organization or division thereof, or~~ the Company otherwise ~~acquire or agree to acquire any assets or equity interests or (ii~~holds an attributable ownership interest under FCC Media Ownership Rules) take or agree to take any other action (including entering into or agreeing to enter into any material license, joint venture or other transaction), in each case that would reasonably be expected to (A) impose any material delay exceeds the current ownership limits set forth in the ~~obtaining of~~FCC Media Ownership Rules. Such list shall include the total number of radio stations in such market, ~~or increase~~ the ~~risk materially~~ number of ~~not obtaining~~radio stations that can be owned by a single party under the FCC Media Ownership Rules in that market, ~~approval from, or avoiding~~ and an Action by, any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period, (B) materially increase the risk of any Governmental Authority entering an Order prohibiting the consummation identification of the ~~transactions contemplated by this Agreement or (C) otherwise materially delay or prevent~~ radio stations in the ~~consummation of~~ market attributable to the ~~transactions contemplated by this Agreement~~Company.

Appears in 1 contract

Samples: Merger Agreement (Cumulus Media Inc)

Appropriate Action; Consents; Filings. (a) ~~In accordance with~~ Subject to the terms ~~and subject to the conditions~~ of this ~~Agreement (including Section 6.5)~~Agreement, the parties hereto will use their respective reasonable best efforts ~~to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable~~ to consummate and make effective the transactions contemplated hereby and to cause the conditions to the Merger set forth in Article VII to be ~~satisfied as expeditiously as practicable (and in any event at least five (5) Business Days prior to the Outside Date)~~satisfied, including ~~using reasonable best efforts to accomplish the following:~~ (i) in the case of the Parents, the obtaining of all necessary approvals under any applicable communication Laws required in connection with this Agreement, the Merger and the other transactions contemplated by this Agreement, including any obligations of the Parents in accordance with Section 6.05(b); (ii) the obtaining of all necessary ~~or advisable~~ actions or non-actions, ~~waivers, Consents~~ consents and approvals from Governmental Authorities or other persons necessary ~~or advisable~~ in connection with the consummation of the transactions contemplated by this ~~Agreement, including the Merger, the Non-Arriver Extraction and the Arriver Sale~~ Agreement and the making of all necessary ~~or advisable~~ registrations and filings (including filings with Governmental ~~Authorities,~~ Authorities if any) and the taking of all reasonable steps as may be necessary ~~or advisable~~ to obtain an approval from, or to avoid ~~any Action~~ an action or proceeding by, any Governmental Authority or other persons necessary in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, the Non-Arriver Extraction and the Arriver Sale, (ii) the obtaining of all other necessary consents, approvals or waivers from Third Parties (provided that none of the Company, the Acquiring Parties or Merger Sub shall be required to make or agree to make any payment or accept any material conditions or obligations with respect thereto, except as expressly set forth in Section 6.10(c)), including in respect of the Non-Arriver Extraction and the Arriver Sale, ; (iii) the defending of any ~~Actions~~lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions ~~contemplated hereby~~performed or consummated by such party in accordance with the terms of this Agreement, ~~including the Merger, the Non-Arriver Extraction and the Arriver Sale~~ including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or ~~reversed~~ reversed; and (iv) the execution and delivery of any additional instruments necessary to consummate the Merger and ~~any~~ other transactions to be performed or consummated by such party in accordance with the terms of this Agreement and to fully carry out ~~fully~~ the purposes of this Agreement~~. (b)~~ . Each of the parties hereto shall promptly (~~and, in the case of filings required under the HSR Act,~~ in no event later than fifteen (15) ~~Business Days~~ business days following the date ~~hereof) (i~~that this Agreement is executed) make ~~and not withdraw any applicable filings under the HSR Act~~its respective filings, and thereafter make any other ~~applications and filings~~ required ~~or advisable~~ submissions under the ~~Antitrust~~ HSR Act and any applicable non-U.S. competition or antitrust Laws ~~or Investment Screening Laws of the jurisdictions set forth on Section 6.3(a) of the Company Disclosure Letter~~ with respect to the transactions contemplated hereby. The Parents and the Company shall cooperate to prepare such applications as may be necessary for submission to the FCC in order to obtain the FCC Consent (the “FCC Applications”) and shall promptly (in no event later than thirty (30) business days following the date that this Agreement is executed) file such FCC Applications with the FCC. Said FCC Applications shall specify that Mergerco, ~~including~~ or any person having an attributable ownership interest in Mergerco as defined for purposes of applying the ~~Merger~~FCC Media Ownership Rules (“Attributable Investor”), shall render non-attributable all interests in any assets or businesses which would conflict with the FCC Media Ownership Rules (including, without limitation, the ~~Non-Arriver Extraction~~ equity debt plus rules) if such interests were held by Mergerco or any Attributable Investor following the Effective Time, including, without limitation, any such interest that Mergerco or any Attributable Investor is or may become obligated to acquire (the “Attributable Interest”). The Parents shall, and the ~~Arriver Sale~~Parents shall cause each Attributable Investor to, (i) render non-attributable under the FCC Media Ownership Rules each Attributable Interest, and (ii) comply at the earliest practicable date with any request under the HSR Act for additional information (including responding to any “second request”), documents or other materials received by such party from the U.S. Federal Trade Commission, the Antitrust Division of the U.S. Department of Justice or from any other Governmental Authority under any Antitrust Laws or Investment Screening Laws in respect of any such filings with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale and (iii) act in good faith and reasonably cooperate with each other party in connection with any such filings (including, if requested by another party, considering in good faith all reasonable additions, deletions or changes suggested by the other party in connection therewith) and in connection with resolving any investigation or other inquiry of such agency or other Governmental Authority under any Antitrust Laws and Investment Screening Laws. In taking the foregoing actions, each of the Company and the Acquiring Parties shall act reasonably and as promptly as practicable. Notwithstanding anything in this Agreement to the contrary, obtaining any Third Party Consents or waivers pursuant to Section 6.3(a)(ii) above or otherwise, including any Consents required in connection with the Non-Arriver Extraction or the Arriver Sale, shall not be a condition to the obligations of any party to consummate the Merger. (c) Without limiting anything in this Section 6.3 (i) none of the parties hereto or their respective Affiliates shall extend any waiting period or comparable period under the HSR Act acquire or enter into any agreement ~~with~~ to acquire any ~~Governmental Authority~~ Attributable Interest, and not permit to ~~consummate the transactions contemplated hereby, except~~ exist any interest that conflicts with the ~~prior written consent~~ FCC’s alien ownership rules. The action required by clause (i) above shall be completed not later than the Effective Time. The parties shall diligently take, or cooperate in the taking of, all necessary, desirable and proper actions, and provide any additional information, reasonably required or requested by the FCC. Each of the Parents and the Company will keep the other ~~parties hereto~~ informed of any material communications (including any meeting, conference or telephonic call) and will provide the other copies of all correspondence between it (iior its advisors) and the ~~Acquiring Parties~~ FCC and ~~Merger Sub~~ each of the Parents and the Company will permit the other to review any material communication relating to the FCC Applications to be given by it to the FCC. Each of the Parents and the Company shall notify the other in the event it becomes aware of any other facts, actions, communications or occurrences that might directly or indirectly affect the Parents’ or the Company’s intent or ability to effect prompt FCC approval of the FCC Applications. The Parents and the Company shall oppose any petitions to deny or other objections filed with respect to the FCC Applications and any requests for reconsideration or judicial review of the FCC Consent. Each of the Parents and the Company agrees not to, and shall not permit any of their respective subsidiaries to, take any action that would reasonably be expected to materially delay, materially impede or prevent receipt of the FCC Consent. The fees required by the FCC for the filing of the FCC Applications shall be borne one-half by the Parents (on behalf of Mergerco) and one-half by the Company (b) The Parents agree to take ~~(and to cause their Affiliates to take)~~ promptly any and all steps necessary ~~or reasonably advisable or as may be required by any Governmental Authority~~ to avoid or eliminate each and every impediment and obtain all ~~Consents~~ consents under any ~~Antitrust Laws~~ antitrust, competition or ~~Investment Screening Laws~~ communications or broadcast Law (including the FCC Media Ownership Rules) that may be required by any U.S. federal, state or local or any applicable non-U.S. antitrust or competition Governmental ~~Authority~~ Authority, or by the FCC or similar Governmental Authority, in each case with competent jurisdiction, so as to enable the parties to ~~consummate~~ close the transactions contemplated by this ~~Agreement, including the Merger, the Non-Arriver Extraction and the Arriver Sale~~ Agreement as ~~expeditiously~~ promptly as ~~possible (and in any event at least five (5) Business Days prior to the Outside Date)~~practicable, including committing to ~~and~~ or effecting, by consent decree, hold separate ~~order~~orders, ~~trust~~ trust, or otherwise, ~~(A) selling~~the Divestiture of such assets or businesses as are required to be divested in order to obtain the FCC Consent, ~~divesting, licensing~~ or ~~otherwise disposing~~ to avoid the entry of, or ~~holding separate and agreeing~~ to ~~sell, divest, license~~ effect the dissolution of or ~~otherwise dispose of~~vacate or lift, any ~~assets~~ Order, that would otherwise have the effect of preventing or materially delaying the consummation of the ~~Company,~~ Merger and the Acquiring Parties, Merger Sub or their respective Affiliates, (B) terminating, amending or assigning existing relationships and contractual rights and obligations, (C) requiring the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates to grant any right or commercial or other accommodation to, or enter into any material commercial contractual or other commercial relationship with, any Third Party and (D) imposing limitations on the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates with respect to how they own, retain, conduct or operate all or any portion of their respective businesses or assets (clauses (A) through (D) shall be referred to as “Remedy Actions”)transactions contemplated by this Agreement. Notwithstanding anything to the contrary ~~set forth~~ in this Section ~~6.3~~6.05, if the FTC or the Antitrust Division of the United States Department of Justice has not granted the necessary approvals under the HSR Act of the date that is nine (9) months following the date hereof, then, if the respective antitrust counsel to the Company and the Parents, in consultation with each other and in the exercise of their professional judgment, jointly determine that a Divestiture (as defined below) is required to obtain the necessary approvals under the HSR Act, they shall provide written notice of such determination to the Parents and the Company (the “Divestiture Notice”). Upon receipt of the Divestiture Notice, the ~~Acquiring Parties~~ Parents shall promptly, and in any event within twelve (12) months, implement or cause to be implemented a Divestiture. For purposes of this Agreement, a “Divestiture” of any asset or business shall mean (i) any sale, transfer, separate holding, divestiture or other disposition, or any prohibition of, or any limitation on, the acquisition, ownership, operation, effective control or exercise of full rights of ownership, of such asset; or (ii) the termination or amendment of any existing or contemplated Mergerco’s or Company’s governance structure or contemplated Mergerco’s or Company’s contractual or governance rights. Further, and for the avoidance of doubt, the Parents will take any and all actions necessary in order to ensure that (x) no requirement for any non-action, consent or approval of the FTC, the Antitrust Division of the United States Department of Justice, any authority enforcing applicable antitrust, competition, communications Laws, any State Attorney General or other 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 or competition Law or any communications Law, would preclude consummation of the Merger ~~Sub shall not be required to commit or agree to,~~ by the Termination Date. (c) Each of the Parents and the Company shall ~~not be permitted~~ give (or shall cause its respective subsidiaries to commit or agree to without the consent of the Acquiring Parties, any such Remedy Action contemplated by clause (ii) above to the extent any such Remedy Action contemplated by clause (ii) above (x) is not conditioned upon the consummation of the transactions contemplated by this Agreement or (y) would require, or cause to be taken, (1give) any ~~sale~~notices to third parties, ~~divestiture~~and the Parents and the Company shall use, licensing or other disposal of, or other action with respect to, any assets or businesses of QUALCOMM Technology Licensing, (2) any sale, divestiture, licensing or other disposal of any assets or businesses of the Arriver Business, or any other action with respect to any assets or businesses of the Arriver Business, that would materially diminish or materially interfere with the benefits that QUALCOMM reasonably expects to receive from its ownership of the Arriver Business, (3) any sale or divestiture of any assets or businesses of QUALCOMM or any and cause each of its ~~Subsidiaries~~subsidiaries to use, ~~or with respect~~ its reasonable best efforts to obtain any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a fair market value (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party ~~that is mutually selected~~ consents not covered by paragraphs (a) and (b) above, necessary, proper or advisable to consummate the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the economic impact determined with respect to any actions taken pursuant to the following clause (4), or (4) any other action (excluding sales or divestitures) with respect to any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a net negative economic impact (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the fair market value determined with respect to any actions taken pursuant to the foregoing clause (3). (d) Merger. 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 inquiry from a Governmental Authority, including ~~(i) promptly~~ immediately 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 substantive meetings or discussions 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 either party and any Governmental Authority with respect to this Agreement~~; provided that~~. (d) In order to avoid disruption or delay in the processing of the FCC Applications, the Parents and the Company agree, as part of the FCC Applications, to request that the FCC apply its policy permitting license assignments and transfers in transactions involving multiple markets to proceed, notwithstanding ~~anything in this Agreement~~ the pendency of one or more license renewal applications. The Parents and the Company agree to make such representations and undertakings as necessary or appropriate to invoke such policy, including undertakings to assume the position of applicant with respect to any pending license renewal applications, and to assume the risks relating to such applications. The Parents and the Company acknowledge that license renewal applications (each, a “Renewal Application”) may be pending before the FCC with respect to the ~~contrary~~Company Stations (each, a “Renewal Station”). To the extent reasonably necessary to expedite grant of a Renewal Application, and thereby facilitate grant of the FCC Applications, the Acquiring Parties shall determine the strategy to be pursued for obtaining and lead the effort to obtain all necessary actions or nonactions and consents from Governmental Authorities, including any related litigation and Remedy Actions, pursuant to any Antitrust Law in connection with the transactions contemplated by this Agreement, Parents and the Company shall ~~take all reasonably requested actions~~ enter into tolling agreements with the FCC with respect to ~~support~~ the ~~Acquiring Parties~~ relevant Renewal Application as necessary or appropriate to extend the statute of limitations for the FCC to determine or impose a forfeiture penalty against such Renewal Station in connection ~~therewith~~with any pending complaints, investigations, letters of inquiry, or other proceedings, including, but not limited to, complaints that such Renewal Station aired programming that contained obscene, indecent or profane material (a “Tolling Agreement”). ~~Notwithstanding anything to~~ The Parents and the ~~contrary contained in this Agreement, the Acquiring Parties~~ Company shall consult ~~with the Company and consider~~ in good faith ~~the views~~ with each other prior to entering into any such Tolling Agreement. Section 6.05(d) of the Company ~~in connection~~ Disclosure Schedule sets forth all main radio and television stations owned by the Company with all material communications with a Governmental Authority and strategy regarding the Antitrust Laws. (e) The Company and the Acquiring Parties, in their respective sole and absolute discretion, may (x) redact materials Renewal Applications pending as necessary to comply with contractual arrangements address reasonable attorney client or other privilege or confidentiality concerns, exclude any information relating to Company valuation and similar matters relating to the transactions contemplated herein, and (y) designate any competitively sensitive material as “Outside Counsel Only Material” such that such materials and the information contained therein shall be given only to the outside counsel of the ~~recipient and will not be disclosed to employees, officers or directors~~ date of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel. (f) The Acquiring Parties and Merger Sub shall not, and shall not permit any of their controlled Affiliates to, (i) acquire or agree to acquire by merging or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests or (ii) take or agree to take any other action (including entering into or agreeing to enter into any material license, joint venture or other transaction), in each case that would reasonably be expected to (A) impose any material delay in the obtaining of, or increase the risk materially of not obtaining, approval from, or avoiding an Action by, any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period, (B) materially increase the risk of any Governmental Authority entering an Order prohibiting the consummation of the transactions contemplated by this Agreement or (C) otherwise materially delay or prevent the consummation of the transactions contemplated by this Agreement.

Appears in 1 contract

Samples: Merger Agreement (Clear Channel Communications Inc)

Appropriate Action; Consents; Filings. ~~(a) In accordance with~~ Subject to the terms and ~~subject to the~~ conditions of this ~~Agreement (including Section 6.5)~~Agreement, ~~the parties hereto will~~ each party shall use ~~their respective~~ its reasonable best efforts to take, or cause to be taken, all ~~actions,~~ actions and to do, or cause to be done, ~~and to assist and cooperate with the other parties in doing,~~ all things necessary, proper or advisable to consummate ~~and make effective~~ the transactions contemplated hereby and to cause the conditions ~~to the Merger~~ set forth in Article VII to be satisfied as ~~expeditiously~~ promptly as ~~practicable (and in any event at least five (5) Business Days prior to the Outside Date)~~practicable, including using their respective reasonable best efforts to ~~accomplish the following:~~ (i) ~~the obtaining of~~ promptly obtain all ~~necessary or advisable~~ actions or non-actions, consents, Permits, waivers, ~~Consents~~ approvals, authorizations and ~~approvals~~ orders from Governmental ~~Authorities~~ Entities necessary or advisable in connection with the consummation of the transactions contemplated hereby, (ii) as promptly as practicable, make and not withdraw (without Buyer's consent) all registrations and filings with any Governmental Entity necessary or advisable in connection with the consummation of the transactions contemplated by this Agreement, ~~including the Merger, the Non-Arriver Extraction~~ and ~~the Arriver Sale and the making of all necessary or advisable registrations and~~ promptly make any further filings ~~(including filings with Governmental Authorities, if any) and the taking of all reasonable steps as~~ pursuant thereto that may be necessary or ~~advisable~~ advisable, (iii) seek to ~~obtain an approval from,~~ have lifted or rescinded any injunction or restraining order which may adversely affect the ability of the parties hereto to ~~avoid any Action by, any Governmental Authority in connection with the consummation of~~ consummate the transactions contemplated ~~by this Agreement~~hereby, ~~including~~ in each case until the ~~Merger~~issuance of a final, ~~the Non~~non-Arriver Extraction and the Arriver Sale, (ii) the obtaining of all other necessary consents, approvals or waivers from Third Parties (provided that none of the Company, the Acquiring Parties or Merger Sub shall be required to make or agree to make any payment or accept any material conditions or obligations appealable order with respect thereto, ~~except as expressly set forth in Section 6.10(c)), including in respect of the Non-Arriver Extraction and the Arriver Sale,~~ (~~iii~~iv) ~~the defending of~~ seek to resolve any ~~Actions, whether judicial~~ objection or ~~administrative,~~ assertion by any Governmental Entity challenging this Agreement or the ~~consummation of the~~ transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed hereby and (ivv) ~~the execution~~ execute and ~~delivery of~~ deliver any additional instruments necessary to consummate the Merger and any other transactions to be performed or consummated by such party in accordance with the terms of this Agreement and to carry out fully the purposes of this Agreement. (b) Each of the parties hereto shall promptly (and, in the case of filings required under the HSR Act, in no event later than fifteen (15) Business Days following the date hereof) (i) make and not withdraw any applicable filings under the HSR Act, and thereafter make any other applications and filings required or advisable under the Antitrust Laws or Investment Screening Laws of the jurisdictions set forth on Section 6.3(a) of the Company Disclosure Letter with respect to the transactions contemplated hereby; provided, ~~including the Merger~~however, ~~the Non-Arriver Extraction and the Arriver Sale, (ii) comply at the earliest practicable date with any request~~ that under the HSR Act for additional information (including responding to any “second request”), documents or other materials received by such party from the U.S. Federal Trade Commission, the Antitrust Division of the U.S. Department of Justice or from any other Governmental Authority under any Antitrust Laws or Investment Screening Laws in respect of any such filings with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale and (iii) act in good faith and reasonably cooperate with each other party in connection with any such filings (including, if requested by another party, considering in good faith all reasonable additions, deletions or changes suggested by the other party in connection therewith) and in connection with resolving any investigation or other inquiry of such agency or other Governmental Authority under any Antitrust Laws and Investment Screening Laws. In taking the foregoing actions, each of the Company and the Acquiring Parties no circumstances shall act reasonably and as promptly as practicable. Notwithstanding anything in this Agreement to the contrary, obtaining any Third Party Consents or waivers pursuant to Section 6.3(a)(ii) above or otherwise, including any Consents required in connection with the Non-Arriver Extraction or the Arriver Sale, shall not Buyer be a condition to the obligations of any party to consummate the Merger. (c) Without limiting anything in this Section 6.3 (i) none of the parties hereto or their respective Affiliates shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby, except with the prior written consent of the other parties hereto and (ii) the Acquiring Parties and Merger Sub agree to take (and to cause their Affiliates to take) promptly any and all steps necessary or reasonably advisable or as may be required by any Governmental Authority to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws or Investment Screening Laws that may be required by any Governmental Authority so as to enable the parties to consummate the transactions contemplated by this Agreement, including the Merger, the Non-Arriver Extraction and the Arriver Sale as expeditiously as possible (and in any event at least five (5) Business Days prior to the Outside Date), including committing to and effecting, by consent decree, hold separate order, trust or otherwise, (A) selling, divesting, licensing or otherwise disposing of, or holding separate and agreeing obligated to sell, divest, ~~license~~ or ~~otherwise~~ dispose ofof any business, ~~any assets~~ service, product, Contract, or other tangible or intangible asset of ~~the Company, the Acquiring Parties, Merger Sub~~ Buyer or ~~their respective Affiliates, (B) terminating, amending or assigning existing relationships and contractual rights and obligations, (C) requiring the Acquiring Parties, Merger Sub,~~ the Company (or any of their respective ~~Affiliates~~ Subsidiaries or Affiliates) or to ~~grant any right or commercial or other accommodation to, or~~ enter into any ~~material commercial contractual~~ behavioral limitation, conduct restriction, or ~~other commercial relationship with, any Third Party and (D) imposing limitations on the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates~~ commitment with respect to how they own, retain, conduct or operate all or any portion of their respective businesses or assets (clauses (A) through (D) shall be referred to as “Remedy Actions”). Notwithstanding anything to the contrary set forth in this Section 6.3, the Acquiring Parties and Merger Sub shall not be required to commit or agree to, and the Company shall not be permitted to commit or agree to without the consent of the Acquiring Parties, any such Remedy Action contemplated by clause (ii) above to the extent any such Remedy Action contemplated by clause (ii) above (x) is not conditioned upon the consummation of the transactions contemplated by this Agreement or (y) would requirebusiness, ~~or cause to be taken~~service, ~~(1) any sale~~product, divestiture, licensing or other disposal of, or other action with respect to, any assets or businesses of QUALCOMM Technology Licensing, (2) any sale, divestiture, licensing or other disposal of any assets or businesses of the Arriver BusinessContract, or any other ~~action with respect to any assets~~ tangible or businesses of the Arriver Business, that would materially diminish or materially interfere with the benefits that QUALCOMM reasonably expects to receive from its ownership of the Arriver Business, (3) any sale or divestiture of any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a fair market value (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the economic impact determined with respect to any actions taken pursuant to the following clause (4), or (4) any other action (excluding sales or divestitures) with respect to any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a net negative economic impact (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the fair market value determined with respect to any actions taken pursuant to the foregoing clause (3)intangible asset. (d) 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 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 substantive meetings or discussions 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 either party and any Governmental Authority with respect to this Agreement; provided that, notwithstanding anything in this Agreement to the contrary, the Acquiring Parties shall determine the strategy to be pursued for obtaining and lead the effort to obtain all necessary actions or nonactions and consents from Governmental Authorities, including any related litigation and Remedy Actions, pursuant to any Antitrust Law in connection with the transactions contemplated by this Agreement, and the Company shall take all reasonably requested actions to support the Acquiring Parties in connection therewith. Notwithstanding anything to the contrary contained in this Agreement, the Acquiring Parties shall consult with the Company and consider in good faith the views of the Company in connection with all material communications with a Governmental Authority and strategy regarding the Antitrust Laws. (e) The Company and the Acquiring Parties, in their respective sole and absolute discretion, may (x) redact materials as necessary to comply with contractual arrangements address reasonable attorney client or other privilege or confidentiality concerns, exclude any information relating to Company valuation and similar matters relating to the transactions contemplated herein, and (y) designate any competitively sensitive material as “Outside Counsel Only Material” such that such materials and the information contained therein shall be given only to the outside counsel of the recipient and will not be disclosed to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel. (f) The Acquiring Parties and Merger Sub shall not, and shall not permit any of their controlled Affiliates to, (i) acquire or agree to acquire by merging or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests or (ii) take or agree to take any other action (including entering into or agreeing to enter into any material license, joint venture or other transaction), in each case that would reasonably be expected to (A) impose any material delay in the obtaining of, or increase the risk materially of not obtaining, approval from, or avoiding an Action by, any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period, (B) materially increase the risk of any Governmental Authority entering an Order prohibiting the consummation of the transactions contemplated by this Agreement or (C) otherwise materially delay or prevent the consummation of the transactions contemplated by this Agreement.

Appears in 1 contract

Samples: Stock Purchase Agreement (Orgenesis Inc.)

Appropriate Action; Consents; Filings. (a) ~~In accordance with~~ Upon the terms and subject to the conditions of set forth in this ~~Agreement (including Section 6.5)~~Agreement, the ~~parties hereto will~~ Company and each of the Parent Entities shall and shall cause the other Company Entities and the other Parent Entities, respectively, to use its or their ~~respective~~ reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other ~~parties~~ party in doing, all things necessary, proper or advisable under applicable Law or pursuant to any Contract or agreement to consummate and make ~~effective~~ effective, as promptly as practicable, the Merger and the other transactions contemplated ~~hereby and~~ by this Agreement, including (i) the taking of all actions necessary to cause the conditions to ~~the Merger~~ Closing set forth in Article VII to be ~~satisfied as expeditiously as practicable~~ satisfied, (~~and in any event at least five (5) Business Days prior to the Outside Date), including using reasonable best efforts to accomplish the following: (i~~ii) the obtaining of all necessary ~~or advisable~~ actions or ~~non-actions~~nonactions, waivers, ~~Consents~~ consents and approvals from Governmental Authorities or other Persons necessary ~~or advisable~~ in connection with the consummation of the Merger and the other transactions contemplated by this ~~Agreement,~~ Agreement (including the ~~Merger, the Non-Arriver Extraction and the Arriver Sale~~ Continuing Membership Application of Securities Corp) and the making of all necessary ~~or advisable~~ registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary ~~or advisable~~ to obtain an approval or waiver from, or to avoid ~~any Action~~ an action or proceeding by, any Governmental Authority or other Persons necessary in connection with the consummation of the Merger and the other transactions contemplated by this ~~Agreement,~~ Agreement (including ~~the Merger, the Non-Arriver Extraction and the Arriver Sale, (ii) the obtaining~~ promptly responding to all requests by a Governmental Authority or other Person for additional information in support of ~~all other necessary consents, approvals~~ any such filing or ~~waivers from Third Parties (provided that none of the Company, the Acquiring Parties~~ request for approval or ~~Merger Sub shall be required to make or agree to make any payment or accept any material conditions or obligations with respect thereto, except as expressly set forth in Section 6.10(c)~~waiver), ~~including in respect of the Non-Arriver Extraction~~ and ~~the Arriver Sale,~~ (iii) the defending of any Actions, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed and (iv) the execution and delivery of any additional instruments necessary to consummate the Merger and ~~any~~ the other transactions ~~to be performed or consummated~~ contemplated by ~~such party in accordance with the terms of~~ this Agreement and to fully carry out ~~fully~~ the purposes of this Agreement. Without limitation to the foregoing, within 14 days of the execution of this Agreement, the Company will prepare and file Securities Corp’s Continuing Membership Application with FINRA pursuant to FINRA (NASD) Rule 1017 in connection with the Merger and the other transactions contemplated hereby. (b) Each of the parties hereto shall promptly (and, in the case of filings required under the HSR Act, in no event later than fifteen (15) Business Days following the date hereof) (i) make and not withdraw any applicable filings under the HSR Act, and thereafter make any other applications and filings required or advisable under the Antitrust Laws or Investment Screening Laws of the jurisdictions set forth on Section 6.3(a) of the Company Disclosure Letter with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale, (ii) comply at the earliest practicable date with any request under the HSR Act for additional information (including responding to any “second request”), documents or other materials received by such party from the U.S. Federal Trade Commission, the Antitrust Division of the U.S. Department of Justice or from any other Governmental Authority under any Antitrust Laws or Investment Screening Laws in respect of any such filings with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale and (iii) act in good faith and reasonably cooperate with each other party in In connection with ~~any such filings (including, if requested by another party, considering in good faith all reasonable additions, deletions or changes suggested by~~ and without limiting the other party in connection therewith) and in connection with resolving any investigation or other inquiry of such agency or other Governmental Authority under any Antitrust Laws and Investment Screening Laws. In taking the foregoing actionsforegoing, each of the ~~Company~~ Parent Entities and the ~~Acquiring Parties~~ Company shall ~~act reasonably and as promptly as practicable. Notwithstanding anything in this Agreement to~~ give (or shall cause the ~~contrary, obtaining any Third Party Consents or waivers pursuant to Section 6.3(a)(ii) above or otherwise, including any Consents required in connection with the Non-Arriver Extraction~~ other Parent Entities or the ~~Arriver Sale~~other Company Entities, ~~shall not be a condition~~ respectively, to ~~the obligations of~~ give) any ~~party~~ notices to ~~consummate the Merger. (c) Without limiting anything in this Section 6.3 (i) none~~ third parties, and each of the parties hereto or their respective Affiliates shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby, except with the prior written consent of the other parties hereto and (ii) the Acquiring Parties and Merger Sub agree to take (and to cause their Affiliates to take) promptly any and all steps necessary or reasonably advisable or as may be required by any Governmental Authority to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws or Investment Screening Laws that may be required by any Governmental Authority so as to enable the parties to consummate the transactions contemplated by this Agreement, including the Merger, the Non-Arriver Extraction Parent Entities and the ~~Arriver Sale as expeditiously as possible (~~Company shall use, and in any event at least five (5) Business Days prior to the Outside Date), including committing to and effecting, by consent decree, hold separate order, trust or otherwise, (A) selling, divesting, licensing or otherwise disposing of, or holding separate and agreeing to sell, divest, license or otherwise dispose of, any assets of the Company, the Acquiring Parties, Merger Sub or their respective Affiliates, (B) terminating, amending or assigning existing relationships and contractual rights and obligations, (C) requiring the Acquiring Parties, Merger Sub, the Company or any cause each of their respective Affiliates to ~~grant~~ use, its or their reasonable best efforts to obtain any right or commercial or other accommodation to, or enter into any material commercial contractual or other commercial relationship with, any Third Party and (D) imposing limitations on the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates with respect to how they own, retain, conduct or operate all or any portion of their respective businesses or assets (clauses (A) through (D) shall be referred to as “Remedy Actions”). Notwithstanding anything to the contrary set forth in this Section 6.3, the Acquiring Parties and Merger Sub shall not be required to commit or agree to, and the Company shall not be permitted to commit or agree to without the consent of the Acquiring Parties, any such Remedy Action contemplated by clause (ii) above to the extent any such Remedy Action contemplated by clause (ii) above (x) is not conditioned upon the consummation of the transactions contemplated by this Agreement or (y) would require, or cause to be taken, (1) any sale, divestiture, licensing or other disposal of, or other action with respect to, any assets or businesses of QUALCOMM Technology Licensing, (2) any sale, divestiture, licensing or other disposal of any assets or businesses of the Arriver Business, or any other action with respect to any assets or businesses of the Arriver Business, that would materially diminish or materially interfere with the benefits that QUALCOMM reasonably expects to receive from its ownership of the Arriver Business, (3) any sale or divestiture of any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a fair market value (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party consents not covered by Section 6.5(a) that ~~is mutually selected by~~ are necessary, proper or advisable to consummate the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the economic impact determined with respect to any actions taken pursuant to the following clause (4), or (4) any other action (excluding sales or divestitures) with respect to any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a net negative economic impact (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the fair market value determined with respect to any actions taken pursuant to the foregoing clause (3). (d) Merger. 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 inquiry from a Governmental Authority, including ~~(i)~~ promptly informing the other ~~party~~ parties 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 substantive meetings or discussions 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 either party and any Governmental Authority with respect to this Agreement~~; provided that~~. To the extent reasonably practicable, ~~notwithstanding anything~~ the parties or their Representatives shall have the right to review in ~~this Agreement~~ advance and each of the parties will consult the others on, all the information relating to the ~~contrary~~other and each of their Affiliates that appears in any filing made with, ~~the Acquiring Parties shall determine the strategy to be pursued for obtaining and lead the effort to obtain all necessary actions~~ or ~~nonactions and consents from~~ written materials submitted to, any Governmental ~~Authorities, including any related litigation and Remedy Actions, pursuant to any Antitrust Law~~ Authority in connection with the Merger and the other transactions contemplated by this Agreement, except that confidential competitively sensitive business information may be redacted from such exchanges. To the extent reasonably practicable, none of the parties hereto shall, nor shall they permit their respective Representatives to, participate independently in any meeting or engage in any substantive conversation with any Governmental Authority in respect of any filing, investigation or other inquiry without giving the other party prior notice of such meeting or conversation and, to the extent permitted by applicable Law, without giving the other parties the opportunity to attend or participate (whether by telephone or in person) in any such meeting with such Governmental Authority. (c) Without limiting the generality of Section 6.5(a) and (b), the Company will use its reasonable best efforts to obtain the consents and approvals required under the Investment Advisers Act and other applicable Law (including the SEC’s interpretive guidance thereof) to effect the assignment or continuation of the Advisory Contracts following the Closing. If consent of a Client in relation to an Advisory Contract is required under the Investment Advisers Act, other applicable Law or by such Advisory Contract as a result of the transactions contemplated by this Agreement, ~~and~~ as soon as reasonably practicable following the date of this Agreement (but in no event later than 30 days after the date of this Agreement), the Company shall ~~take all reasonably requested actions~~ send a written notice, substantially in the form attached hereto as Exhibit B (the “Initial Negative Consent Notice”). Within 30 days of sending the Initial Negative Consent Notice, the Company shall send a written notice to ~~support~~ Clients that received the ~~Acquiring Parties~~ Initial Negative Consent Notice reminding each such Client of each of the matters set forth in ~~connection therewith.~~ the Initial Negative Consent Notice. (d) Notwithstanding anything to the contrary ~~contained~~ in this Agreement, ~~the Acquiring Parties shall consult with the Company and consider in good faith the views of the Company~~ in connection with ~~all material communications~~ obtaining any approval or consent from any Person (other than any Governmental Authority) with ~~a Governmental Authority and strategy regarding~~ respect to the ~~Antitrust Laws. (e) The~~ Merger, none of the parties hereto, any of the other Company ~~and~~ Entities or any of the ~~Acquiring Parties~~other Parent Entities, in or any of the their respective ~~sole and absolute discretion~~Representatives, ~~may (x) redact materials as necessary~~ shall be obligated to ~~comply with contractual arrangements address reasonable attorney client~~ pay or commit to pay to such Person whose approval or consent is being solicited any cash or other ~~privilege~~ consideration, make any accommodation or ~~confidentiality concerns, exclude~~ commitment or incur any ~~information relating~~ liability or other obligation to ~~Company valuation and similar matters relating~~ such Person (unless expressly required by a written agreement that was entered into prior to the ~~transactions contemplated herein, and (y) designate any competitively sensitive material as “Outside Counsel Only Material”~~ date hereof with such Person). The parties shall cooperate with respect to accommodations that may be requested or appropriate to obtain such materials and the information contained therein shall be given only to the outside counsel of the recipient and will not be disclosed to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counselconsents. (f) The Acquiring Parties and Merger Sub shall not, and shall not permit any of their controlled Affiliates to, (i) acquire or agree to acquire by merging or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests or (ii) take or agree to take any other action (including entering into or agreeing to enter into any material license, joint venture or other transaction), in each case that would reasonably be expected to (A) impose any material delay in the obtaining of, or increase the risk materially of not obtaining, approval from, or avoiding an Action by, any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period, (B) materially increase the risk of any Governmental Authority entering an Order prohibiting the consummation of the transactions contemplated by this Agreement or (C) otherwise materially delay or prevent the consummation of the transactions contemplated by this Agreement.

Appears in 1 contract

Samples: Merger Agreement (Summit Financial Services Group Inc)

Appropriate Action; Consents; Filings. (a) ~~In accordance with~~ Upon the terms and subject to the conditions of set forth in this ~~Agreement (including Section 6.5)~~Agreement, the ~~parties hereto will~~ Company and each of the Parent Entities shall and shall cause the other Company Entities and the other Parent Entities, respectively, to use its or their ~~respective~~ reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other ~~parties~~ party in doing, all things necessary, proper or advisable under applicable Law or pursuant to any Contract or agreement to consummate and make ~~effective~~ effective, as promptly as practicable, the Merger and the other transactions contemplated ~~hereby and~~ by this Agreement, including (i) the taking of all actions necessary to cause the conditions to ~~the Merger~~ Closing set forth in Article VII to be ~~satisfied as expeditiously as practicable~~ satisfied, (~~and in any event at least five (5) Business Days prior to the Outside Date), including using reasonable best efforts to accomplish the following: (i~~ii) the obtaining of all necessary ~~or advisable~~ actions or ~~non-actions~~nonactions, waivers, ~~Consents~~ consents and approvals from Governmental Authorities or other Persons necessary ~~or advisable~~ in connection with the consummation of the Merger and the other transactions contemplated by this ~~Agreement,~~ Agreement (including the ~~Merger, the Non-Arriver Extraction and the Arriver Sale~~ Continuing Membership Application of Securities Corp) and the making of all necessary ~~or advisable~~ registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary ~~or advisable~~ to obtain an approval or waiver from, or to avoid ~~any Action~~ an action or proceeding by, any Governmental Authority or other Persons necessary in connection with the consummation of the Merger and the other transactions contemplated by this ~~Agreement,~~ Agreement (including ~~the Merger, the Non-Arriver Extraction and the Arriver Sale, (ii) the obtaining~~ promptly responding to all requests by a Governmental Authority or other Person for additional information in support of ~~all other necessary consents, approvals~~ any such filing or ~~waivers from Third Parties (provided that none of the Company, the Acquiring Parties~~ request for approval or ~~Merger Sub shall be required to make or agree to make any payment or accept any material conditions or obligations with respect thereto, except as expressly set forth in Section 6.10(c)~~waiver), ~~including in respect of the Non-Arriver Extraction~~ and ~~the Arriver Sale,~~ (iii) the defending of any Actions, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed and (iv) the execution and delivery of any additional instruments necessary to consummate the Merger and ~~any~~ the other transactions ~~to be performed or consummated~~ contemplated by ~~such party in accordance with the terms of~~ this Agreement and to fully carry out ~~fully~~ the purposes of this Agreement. Without limitation to the foregoing, within 14 days of the execution of this Agreement, the Company will prepare and file Securities Corp’s Continuing Membership Application with FINRA pursuant to FINRA (NASD) Rule 1017 in connection with the Merger and the other transactions contemplated hereby. (b) Each of the parties hereto shall promptly (and, in the case of filings required under the HSR Act, in no event later than fifteen (15) Business Days following the date hereof) (i) make and not withdraw any applicable filings under the HSR Act, and thereafter make any other applications and filings required or advisable under the Antitrust Laws or Investment Screening Laws of the jurisdictions set forth on Section 6.3(a) of the Company Disclosure Letter with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale, (ii) comply at the earliest practicable date with any request under the HSR Act for additional information (including responding to any “second request”), documents or other materials received by such party from the U.S. Federal Trade Commission, the Antitrust Division of the U.S. Department of Justice or from any other Governmental Authority under any Antitrust Laws or Investment Screening Laws in respect of any such filings with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale and (iii) act in good faith and reasonably cooperate with each other party in In connection with ~~any such filings (including, if requested by another party, considering in good faith all reasonable additions, deletions or changes suggested by~~ and without limiting the other party in connection therewith) and in connection with resolving any investigation or other inquiry of such agency or other Governmental Authority under any Antitrust Laws and Investment Screening Laws. In taking the foregoing actionsforegoing, each of the ~~Company~~ Parent Entities and the ~~Acquiring Parties~~ Company shall ~~act reasonably and as promptly as practicable. Notwithstanding anything in this Agreement to~~ give (or shall cause the ~~contrary, obtaining any Third Party Consents or waivers pursuant to Section 6.3(a)(ii) above or otherwise, including any Consents required in connection with the Non-Arriver Extraction~~ other Parent Entities or the ~~Arriver Sale~~other Company Entities, ~~shall not be a condition~~ respectively, to ~~the obligations of~~ give) any ~~party~~ notices to ~~consummate the Merger. (c) Without limiting anything in this Section 6.3 (i) none~~ third parties, and each of the parties hereto or their respective Affiliates shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby, except with the prior written consent of the other parties hereto and (ii) the Acquiring Parties and Merger Sub agree to take (and to cause their Affiliates to take) promptly any and all steps necessary or reasonably advisable or as may be required by any Governmental Authority to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws or Investment Screening Laws that may be required by any Governmental Authority so as to enable the parties to consummate the transactions contemplated by this Agreement, including the Merger, the Non-Arriver Extraction Parent Entities and the ~~Arriver Sale as expeditiously as possible (~~Company shall use, and in any event at least five (5) Business Days prior to the Outside Date), including committing to and effecting, by consent decree, hold separate order, trust or otherwise, (A) selling, divesting, licensing or otherwise disposing of, or holding separate and agreeing to sell, divest, license or otherwise dispose of, any assets of the Company, the Acquiring Parties, Merger Sub or their respective Affiliates, (B) terminating, amending or assigning existing relationships and contractual rights and obligations, (C) requiring the Acquiring Parties, Merger Sub, the Company or any cause each of their respective Affiliates to ~~grant~~ use, its or their reasonable best efforts to obtain any right or commercial or other accommodation to, or enter into any material commercial contractual or other commercial relationship with, any Third Party and (D) imposing limitations on the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates with respect to how they own, retain, conduct or operate all or any portion of their respective businesses or assets (clauses (A) through (D) shall be referred to as “Remedy Actions”). Notwithstanding anything to the contrary set forth in this Section 6.3, the Acquiring Parties and Merger Sub shall not be required to commit or agree to, and the Company shall not be permitted to commit or agree to without the consent of the Acquiring Parties, any such Remedy Action contemplated by clause (ii) above to the extent any such Remedy Action contemplated by clause (ii) above (x) is not conditioned upon the consummation of the transactions contemplated by this Agreement or (y) would require, or cause to be taken, (1) any sale, divestiture, licensing or other disposal of, or other action with respect to, any assets or businesses of QUALCOMM Technology Licensing, (2) any sale, divestiture, licensing or other disposal of any assets or businesses of the Arriver Business, or any other action with respect to any assets or businesses of the Arriver Business, that would materially diminish or materially interfere with the benefits that QUALCOMM reasonably expects to receive from its ownership of the Arriver Business, (3) any sale or divestiture of any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a fair market value (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party consents not covered by Section 6.5(a) that ~~is mutually selected by~~ are necessary, proper or advisable to consummate the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the economic impact determined with respect to any actions taken pursuant to the following clause (4), or (4) any other action (excluding sales or divestitures) with respect to any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a net negative economic impact (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the fair market value determined with respect to any actions taken pursuant to the foregoing clause (3). (d) Merger. 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 inquiry from a Governmental Authority, including ~~(i)~~ promptly informing the other ~~party~~ parties 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 substantive meetings or discussions 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 either party and any Governmental Authority with respect to this Agreement~~; provided that~~. To the extent reasonably practicable, ~~notwithstanding anything~~ the parties or their Representatives shall have the right to review in ~~this Agreement~~ advance and each of the parties will consult the others on, all the information relating to the ~~contrary~~other and each of their Affiliates that appears in any filing made with, ~~the Acquiring Parties shall determine the strategy to be pursued for obtaining and lead the effort to obtain all necessary actions~~ or ~~nonactions and consents from~~ written materials submitted to, any Governmental ~~Authorities, including any related litigation and Remedy Actions, pursuant to any Antitrust Law~~ Authority in connection with the Merger and the other transactions contemplated by this Agreement, except that confidential competitively sensitive business information may be redacted from such exchanges. To the extent reasonably practicable, none of the parties hereto shall, nor shall they permit their respective Representatives to, participate independently in any meeting or engage in any substantive conversation with any Governmental Authority in respect of any filing, investigation or other inquiry without giving the other party prior notice of such meeting or conversation and, to the extent permitted by applicable Law, without giving the other parties the opportunity to attend or participate (whether by telephone or in person) in any such meeting with such Governmental Authority. (c) Without limiting the generality of Section 6.5(a) and (b), the Company will use its reasonable best efforts to obtain the consents and approvals required under the Investment Advisers Act and other applicable Law (including the SEC’s interpretive guidance thereof) to effect the assignment or continuation of the Advisory Contracts following the Closing. If consent of a Client in relation to an Advisory Contract is required under the Investment Advisers Act, other applicable Law or by such Advisory Contract as a result of the transactions contemplated by this Agreement, ~~and~~ as soon as reasonably practicable following the date of this Agreement (but in no event later than 30 days after the date of this Agreement), the Company shall ~~take all reasonably requested actions~~ send a written notice, substantially in the form attached hereto as Exhibit BA (the “Initial Negative Consent Notice”). Within 30 days of sending the Initial Negative Consent Notice, the Company shall send a written notice to ~~support~~ Clients that received the ~~Acquiring Parties~~ Initial Negative Consent Notice reminding each such Client of each of the matters set forth in ~~connection therewith.~~ the Initial Negative Consent Notice. (d) Notwithstanding anything to the contrary ~~contained~~ in this Agreement, ~~the Acquiring Parties shall consult with the Company and consider in good faith the views of the Company~~ in connection with ~~all material communications~~ obtaining any approval or consent from any Person (other than any Governmental Authority) with ~~a Governmental Authority and strategy regarding~~ respect to the ~~Antitrust Laws. (e) The~~ Merger, none of the parties hereto, any of the other Company ~~and~~ Entities or any of the ~~Acquiring Parties~~other Parent Entities, in or any of the their respective ~~sole and absolute discretion~~Representatives, ~~may (x) redact materials as necessary~~ shall be obligated to ~~comply with contractual arrangements address reasonable attorney client~~ pay or commit to pay to such Person whose approval or consent is being solicited any cash or other ~~privilege~~ consideration, make any accommodation or ~~confidentiality concerns, exclude~~ commitment or incur any ~~information relating~~ liability or other obligation to ~~Company valuation and similar matters relating~~ such Person (unless expressly required by a written agreement that was entered into prior to the ~~transactions contemplated herein, and (y) designate any competitively sensitive material as “Outside Counsel Only Material”~~ date hereof with such Person). The parties shall cooperate with respect to accommodations that may be requested or appropriate to obtain such materials and the information contained therein shall be given only to the outside counsel of the recipient and will not be disclosed to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counselconsents. (f) The Acquiring Parties and Merger Sub shall not, and shall not permit any of their controlled Affiliates to, (i) acquire or agree to acquire by merging or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests or (ii) take or agree to take any other action (including entering into or agreeing to enter into any material license, joint venture or other transaction), in each case that would reasonably be expected to (A) impose any material delay in the obtaining of, or increase the risk materially of not obtaining, approval from, or avoiding an Action by, any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period, (B) materially increase the risk of any Governmental Authority entering an Order prohibiting the consummation of the transactions contemplated by this Agreement or (C) otherwise materially delay or prevent the consummation of the transactions contemplated by this Agreement.

Appears in 1 contract

Samples: Agreement and Plan of Merger (Summit Financial Services Group Inc)

Appropriate Action; Consents; Filings. (a) ~~In accordance with~~ Subject to the terms and ~~subject to the~~ conditions of this Agreement (including the limitations set forth in Section 6.5), the parties hereto will use their respective reasonable best efforts ~~to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable~~ to consummate and make effective the transactions contemplated hereby and to cause the conditions to the Merger set forth in Article VII to be ~~satisfied as expeditiously as practicable (and in any event at least five (5) Business Days prior to the Outside Date)~~satisfied, including using reasonable best efforts to accomplish the following: (i) the obtaining of all necessary ~~or advisable~~ actions or non-actions, ~~waivers, Consents~~ consents and approvals from Governmental Authorities or other Persons necessary ~~or advisable~~ in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale~~ and the making of all necessary ~~or advisable~~ registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary ~~or advisable~~ to obtain an approval from, or to avoid ~~any Action~~ an action or proceeding by, any Governmental Authority or other Persons necessary in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale,~~ (ii) the obtaining of all other necessary consents, approvals or waivers from Third Parties (provided that none of the Company, the Acquiring Parties or Merger Sub shall be required to make or agree to make any payment or accept any material conditions or obligations with respect thereto, except as expressly set forth in Section 6.10(c)), including in respect of the Non-Arriver Extraction and the Arriver Sale, (iii) the defending of any ~~Actions~~lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including the Merger, performed or consummated by such party in accordance with the ~~Non-Arriver Extraction and the Arriver Sale~~ 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 (iviii) 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 promptly (~~and, in the case of filings required under the HSR Act,~~ and in no event later than ~~fifteen~~ ten (1510) Business Days following the date ~~hereof) (i~~that this Agreement is executed) make and not withdraw ~~any applicable~~ (without the Company’s consent, such consent not to be unreasonably withheld, conditioned or delayed) its respective filings under the HSR Act, and thereafter make any other applications and filings ~~required or advisable~~ as reasonably determined by Company and Parent under ~~the~~ applicable Antitrust Laws ~~or Investment Screening Laws of the jurisdictions set forth on Section 6.3(a) of the Company Disclosure Letter~~ with respect to the transactions contemplated ~~hereby~~hereby (including the jurisdictions referred to in Section 7.1(b)), including the Merger, the Non-Arriver Extraction and the Arriver Sale, (ii) comply at the earliest practicable date with any request under the HSR Act for additional information (including responding to any “second request”), documents or other materials received by such party from the U.S. Federal Trade Commission, the Antitrust Division of the U.S. Department of Justice or from any other Governmental Authority under any Antitrust Laws or Investment Screening Laws in respect of any such filings with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale and (iii) act in good faith and reasonably cooperate with each other party in connection with any such filings (including, if requested by another party, considering in good faith all reasonable additions, deletions or changes suggested by the other party in connection therewith) and in connection with resolving any investigation or other inquiry of such agency or other Governmental Authority under any Antitrust Laws and Investment Screening Laws. In taking the foregoing actions, each of the Company and the Acquiring Parties shall act reasonably and as promptly as practicable~~. Notwithstanding anything~~ , but in ~~this Agreement to the contrary, obtaining any Third Party Consents or waivers pursuant to Section 6.3(a)(ii) above or otherwise, including any Consents~~ no event later than as required ~~in connection with the Non-Arriver Extraction or the Arriver Sale, shall not be a condition to the obligations of any party to consummate the Merger~~by Law. (cb) Without limiting anything in this Section 6.3 (i) none of the parties hereto or their respective Affiliates shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated herebyThe Company, ~~except with the prior written consent of the other parties hereto~~ Parent and ~~(ii) the Acquiring Parties and Merger~~ Acquisition Sub agree to use reasonable best efforts to take (and to cause their controlled Affiliates to take) promptly any and all steps necessary ~~or reasonably advisable or as may be required by any Governmental Authority~~ to avoid or eliminate each and every impediment and obtain all ~~Consents~~ consents under any Antitrust ~~Laws or Investment Screening~~ Laws that may be required by any foreign or U.S. federal, state or local Governmental ~~Authority~~ Authority, in each case with competent jurisdiction, so as to enable the parties to consummate the transactions contemplated by this Agreement, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale~~ as ~~expeditiously~~ promptly as ~~possible (and in any event at least five (5) Business Days prior to the Outside Date)~~practicable, including committing to ~~and~~ or effecting, by consent decree, hold separate ~~order~~orders, ~~trust~~ trust, or otherwise, ~~(A) selling, divesting, licensing or otherwise disposing of, or holding separate and agreeing to sell, divest, license or otherwise dispose of, any assets of~~ the Company, the Acquiring Parties, Merger Sub or their respective Affiliates, (B) terminating, amending or assigning existing relationships and contractual rights and obligations, (C) requiring the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates to grant any right or commercial or other accommodation to, or enter into any material commercial contractual or other commercial relationship with, any Third Party and (D) imposing limitations on the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates with respect to how they own, retain, conduct or operate all or any portion of their respective businesses or assets (clauses (A) through (D) shall be referred to as “Remedy Actions”). Notwithstanding anything to the contrary set forth in this Section 6.3, the Acquiring Parties and Merger Sub shall not be required to commit or agree to, and the Company shall not be permitted to commit or agree to without the consent of the Acquiring Parties, any such Remedy Action contemplated by clause (ii) above to the extent any such Remedy Action contemplated by clause (ii) above (x) is not conditioned upon the consummation of the transactions contemplated by this Agreement or (y) would require, or cause to be taken, (1) any sale, divestiture, licensing or other disposal of, or other action with respect to, any assets or businesses of QUALCOMM Technology Licensing, (2) any sale, divestiture, licensing or other disposal of any assets or businesses of the Arriver Business, or any other action with respect to any assets or businesses of the Arriver Business, that would materially diminish or materially interfere with the benefits that QUALCOMM reasonably expects to receive from its ownership of the Arriver Business, (3) any sale or ~~divestiture~~ disposition of ~~any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any~~ such assets or businesses of the Company and its Subsidiaries as are required to be divested in order to avoid the entry of, or ~~its Subsidiaries~~to effect the dissolution of or vacate or lift, any Order, that ~~individually~~ would otherwise have the effect of preventing or in materially delaying the ~~aggregate~~consummation of the Merger and the other transactions contemplated by this Agreement as promptly as practicable. Further, ~~have a fair market value (measured at~~ and for the ~~time~~ avoidance of ~~such request using customary valuation methodologies~~ doubt, but subject to ~~be agreed~~ and limited by the ~~parties hereto~~ preceding sentence, the Company and Parent will take any and all actions reasonably necessary in ~~good faith, which may include an evaluation~~ order to ensure that (x) no requirement for any non-action by ~~a third party that is mutually selected by the Parties) in excess~~ or Consent or approval of the ~~amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the economic impact determined~~ Antitrust Division or other foreign or U.S. Governmental Authority with respect to any ~~actions taken pursuant to the following clause~~ Antitrust Laws, (4)y) no decree, judgment, injunction, temporary restraining order or ~~(4)~~ any other ~~action (excluding sales~~ Order in any suit or ~~divestitures)~~ proceeding with respect to any ~~assets or businesses of QUALCOMM or any of its Subsidiaries~~Antitrust Laws, ~~or with respect~~ and (z) no other matter relating to any ~~assets or businesses~~ Antitrust Laws would preclude consummation of the ~~Company or its Subsidiaries, that individually or in the aggregate, have a net negative economic impact (measured at the time of such request using customary valuation methodologies to be agreed~~ Merger by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the fair market value determined with respect to any actions taken pursuant to the foregoing clause (3)Termination Date. (dc) The Company shall give (or shall cause its respective Subsidiaries to give) any notices to Third Parties, and Parent shall use, and cause each of its Subsidiaries to use, its reasonable best efforts, to cooperate with the Company in its 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. 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 inquiry from a Governmental Authority, including ~~(i) promptly~~ immediately 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 substantive meetings or discussions 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 either party and any Governmental Authority with respect to this Agreement~~; provided that~~. Notwithstanding the foregoing, ~~notwithstanding anything in~~ obtaining any Third Party consents pursuant to this ~~Agreement~~ Section 6.3(c) shall not be considered a condition to the contrary, the Acquiring Parties shall determine the strategy to be pursued for obtaining and lead the effort to obtain all necessary actions or nonactions and consents from Governmental Authorities, including any related litigation and Remedy Actions, pursuant to any Antitrust Law in connection with the transactions contemplated by this Agreement, and the Company shall take all reasonably requested actions to support the Acquiring Parties in connection therewith. Notwithstanding anything to the contrary contained in this Agreement, the Acquiring Parties shall consult with the Company and consider in good faith the views obligations of the ~~Company in connection with all material communications with a Governmental Authority~~ Parent and strategy regarding the Antitrust Laws. (e) The Company and the Acquiring Parties, in their respective sole and absolute discretion, may (x) redact materials as necessary to comply with contractual arrangements address reasonable attorney client or other privilege or confidentiality concerns, exclude any information relating to Company valuation and similar matters relating to the transactions contemplated herein, and (y) designate any competitively sensitive material as “Outside Counsel Only Material” such that such materials and the information contained therein shall be given only to the outside counsel of the recipient and will not be disclosed to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel. (f) The Acquiring Parties and Merger Acquisition Sub shall not, and shall not permit any of their controlled Affiliates to, (i) acquire or agree to acquire by merging or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests or (ii) take or agree to take any other action (including entering into or agreeing to enter into any material license, joint venture or other transaction), in each case that would reasonably be expected to (A) impose any material delay in the obtaining of, or increase the risk materially of not obtaining, approval from, or avoiding an Action by, any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period, (B) materially increase the risk of any Governmental Authority entering an Order prohibiting the consummation of the transactions contemplated by this Agreement or (C) otherwise materially delay or prevent the consummation of the transactions contemplated by this AgreementMerger.

Appears in 1 contract

Samples: Merger Agreement (Gardner Denver Inc)

Appropriate Action; Consents; Filings. (a) ~~In accordance~~ Each of the parties hereto shall (i) make promptly its respective filings, and thereafter make any other required submissions under the HSR Act with ~~the terms and subject~~ respect to the ~~conditions of this Agreement~~ transactions contemplated herein and (~~including Section 6.5~~ii) make promptly filings with or applications to the FCC with respect to the transactions contemplated herein (the "FCC Application")~~, the~~ . The parties hereto will use their respective reasonable best efforts to ~~take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to~~ consummate and make effective the transactions contemplated ~~hereby~~ herein and to cause the conditions to the Forward Merger and, if a Restructuring Trigger has occurred, the Reverse Merger, in each case as set forth in Article VII to be satisfied ~~as expeditiously as practicable~~ (~~and in any event at least five (5) Business Days prior to the Outside Date),~~ including using reasonable best efforts to ~~accomplish the following: (i) the obtaining of~~ obtain all ~~necessary or advisable actions or non-actions~~licenses, permits, consents, approvals, authorizations, waivers, ~~Consents~~ qualifications and ~~approvals from~~ orders of Governmental Authorities as are necessary ~~or advisable in connection with~~ for the consummation of the transactions contemplated ~~by this Agreement~~herein), ~~including the Merger, the Non-Arriver Extraction~~ and will do so in a manner designed to obtain such regulatory clearance and the ~~Arriver Sale~~ satisfaction of such conditions as expeditiously as reasonably possible; provided, however, that Buyer and FTH shall have the ~~making~~ right to make all decisions concerning any divestiture commitments necessary to comply with the FCC's multiple ownership rules set forth at 47 C.F.R. Section 73.3555 as in effect on the date of ~~all necessary or advisable registrations~~ this Agreement (the "FCC Multiple Ownership Rules"); provided, that Buyer and ~~filings (including filings~~ FTH shall regularly consult with ~~Governmental Authorities~~the Company during the processes referred to in this Section 6.3 and consider in good faith the views of the Company with respect thereto; and provided, ~~if any) and the taking of all reasonable steps as may be necessary or advisable to obtain an approval from~~further, ~~or to avoid any Action by~~that, ~~any Governmental Authority~~ in connection with the ~~consummation~~ Merger, Buyer and FTH shall not seek a waiver of Section 73.3555 of the ~~transactions contemplated~~ FCC's rules except for a temporary waiver of subsections (b) and (e) thereof for a period not to exceed twelve months from the Closing Date for television divestitures required in order to obtain the FCC Consent (as defined in Section 7.1(e) hereof) and, with respect to subsection (d) thereof in the FCC Application when it is filed, Buyer will (1) maintain that no waiver is required to permit it to own a newspaper and two television stations in the New York market, and (2) request in the alternative, if that position is rejected or a permanent waiver is not issued by ~~this Agreement~~the FCC, ~~including~~ a temporary waiver to hold the ~~Merger,~~ two television stations and newspaper for a period not to extend beyond the ~~Non-Arriver Extraction~~ date which is the later of (A) twelve months from the Closing Date and ~~the Arriver Sale,~~ (iiB) the ~~obtaining~~ conclusion of ~~all other necessary consents, approvals or waivers from Third Parties (~~any then pending FCC rule making proceeding regarding 47 CFR Section 73.3555(d); provided that ~~none~~ the foregoing sentence shall be subject to the provisions of subsection (b) below. Failure to obtain any of the ~~Company, the Acquiring Parties or Merger Sub shall be required to make or agree to make any payment or accept any material conditions or obligations with respect thereto, except as expressly~~ waivers set forth ~~in Section 6.10(c)), including in respect of the Non-Arriver Extraction and the Arriver Sale,~~ above shall not limit Buyer's obligations pursuant to subsection (~~iii~~b) the defending of any Actions, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed and (iv) the execution and delivery of any additional instruments necessary to consummate the Merger and any other transactions to be performed or consummated by such party in accordance with the terms of this Agreement and to carry out fully the purposes of this Agreementbelow. (b) Each of the parties hereto shall promptly (and, in the case of filings required under the HSR Act, in no event later than fifteen (15) Business Days following the date hereof) (i) make and not withdraw any applicable filings under the HSR Act, and thereafter make any other applications and filings required or advisable under the Antitrust Laws or Investment Screening Laws of the jurisdictions set forth on Section 6.3(a) of the Company Disclosure Letter with respect Notwithstanding anything to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale, (ii) comply at the earliest practicable date with any request under the HSR Act for additional information (including responding to any “second request”), documents or other materials received by such party from the U.S. Federal Trade Commission, the Antitrust Division of the U.S. Department of Justice or from any other Governmental Authority under any Antitrust Laws or Investment Screening Laws in respect of any such filings with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale and (iii) act in good faith and reasonably cooperate with each other party in connection with any such filings (including, if requested by another party, considering in good faith all reasonable additions, deletions or changes suggested by the other party in connection therewith) and in connection with resolving any investigation or other inquiry of such agency or other Governmental Authority under any Antitrust Laws and Investment Screening Laws. In taking the foregoing actions, each of the Company and the Acquiring Parties shall act reasonably and as promptly as practicable. Notwithstanding anything contrary in this Agreement to other than the ~~contrary~~following sentence, ~~obtaining any Third Party Consents or waivers pursuant to Section 6.3(a)(ii) above or otherwise~~the Company, including any Consents required in connection with the Non-Arriver Extraction or the Arriver Sale, shall not be a condition to the obligations of any party to consummate the Merger. (c) Without limiting anything in this Section 6.3 (i) none of the parties hereto or their respective Affiliates shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby, except with the prior written consent of the other parties hereto Buyer and ~~(ii) the Acquiring Parties and Merger Sub~~ FTH each agree to take ~~(and to cause their Affiliates to take)~~ promptly any and all steps necessary ~~or reasonably advisable or as may be required by any Governmental Authority~~ to avoid or eliminate each and every impediment and obtain all ~~Consents~~ consents or waivers under any ~~Antitrust Laws~~ antitrust, competition or ~~Investment Screening Laws~~ communications or broadcast Law that may be validly required by any U.S. federal, state or local antitrust or competition Governmental ~~Authority~~ Authority, or by the FCC or similar Governmental Authority, or by any Australian Law, in each case with competent jurisdiction, so as to enable the parties to ~~consummate~~ close the transactions contemplated by this ~~Agreement, including the Merger, the Non-Arriver Extraction and the Arriver Sale~~ Agreement as expeditiously as ~~possible (and in any event at least five (5) Business Days prior to the Outside Date)~~reasonably possible, including committing to ~~and~~ or effecting, by consent decree, hold separate ~~order~~orders, ~~trust~~ trust, or otherwise, the sale or disposition of such of its assets or businesses as are required to be divested in order to obtain the FCC Consent (~~A) selling~~as defined below), ~~divesting, licensing~~ or ~~otherwise disposing~~ to avoid the entry of, or ~~holding separate and agreeing~~ to ~~sell, divest, license~~ effect the dissolution of or ~~otherwise dispose of~~vacate or lift, any decree, order, judgment, injunction, temporary restraining order or other order in any suit or proceeding by or with any Governmental Authority (each, an "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. Notwithstanding the foregoing, (i) neither Buyer nor FTH shall be required to divest any of its material assets or accept any material limitation on any of its material businesses other than (x) the divestiture of such broadcast assets (i.e., newspaper and television stations) as it is required to divest or (y) the material limitation on such broadcast assets or Buyer's and FTH's operation thereof as it is required to be subject to, in the case of each of clauses (x) and (y) in order to comply with the FCC Multiple Ownership Rules or a final Order in an action brought by an antitrust or competition or FCC or similar Governmental Authority, (ii) notwithstanding clause (i), neither the Company, Buyer nor FTH shall be required to divest or to hold separate, or to accept any substantial limitation on the ~~Acquiring Parties~~operation of, ~~Merger Sub~~ or ~~their respective Affiliates~~to waive any rights material to, the Los Angeles or San Francisco television stations of Buyer or the Company (each of the actions described in clause (i) and (ii) above being an "Adverse Condition"), (Biii) ~~terminating, amending or assigning existing relationships~~ neither party shall be required to take any of the foregoing actions if such action is not conditioned on the consummation of the Merger and ~~contractual rights and obligations,~~ (Civ) ~~requiring the Acquiring Parties, Merger Sub~~without limiting Buyer's obligations set forth herein, the Company or shall not agree to any of ~~their respective Affiliates to grant any right or commercial or other accommodation to~~the foregoing without Buyer's consent and, ~~or enter into any material commercial contractual or other commercial relationship with, any Third Party and (D) imposing limitations on the Acquiring Parties, Merger Sub~~at Buyer's request, the Company or shall agree to any of ~~their~~ the foregoing so long as such agreement is conditioned upon consummation of the Merger. (c) Each of Buyer, FTH and the Company shall give (or shall cause its respective ~~Affiliates with respect~~ subsidiaries to ~~how they own~~give) any notices to third parties, ~~retain~~and Buyer, ~~conduct~~ FTH and the Company shall use, and cause each of its subsidiaries to use, its reasonable best efforts to obtain any third party consents not covered by paragraphs (a) and (b) above, necessary, proper or ~~operate all or any portion of their respective businesses or assets (clauses (A) through (D) shall be referred~~ advisable to ~~as “Remedy Actions”). Notwithstanding anything to~~ consummate the ~~contrary set forth in this Section 6.3~~Forward Merger or, if a Restructuring Trigger has occurred, the ~~Acquiring Parties and Merger Sub~~ Reverse Merger; provided that neither Buyer nor FTH shall ~~not~~ be required to ~~commit or agree to~~pay, and the Company shall not ~~be permitted to commit or agree to~~ pay, without ~~the consent of the Acquiring Parties~~Buyer's prior written consent, any ~~such Remedy Action contemplated by clause (ii) above~~ material consideration to ~~the extent~~ obtain any such Remedy Action contemplated by clause (ii) above (x) is not conditioned upon the consummation of the transactions contemplated by this Agreement or (y) would require, or cause to be taken, (1) any sale, divestiture, licensing or other disposal of, or other action with respect to, any assets or businesses of QUALCOMM Technology Licensing, (2) any sale, divestiture, licensing or other disposal of any assets or businesses of the Arriver Business, or any other action with respect to any assets or businesses of the Arriver Business, that would materially diminish or materially interfere with the benefits that QUALCOMM reasonably expects to receive from its ownership of the Arriver Business, (3) any sale or divestiture of any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a fair market value (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the economic impact determined with respect to any actions taken pursuant to the following clause (4), or (4) any other action (excluding sales or divestitures) with respect to any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a net negative economic impact (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the fair market value determined with respect to any actions taken pursuant to the foregoing clause (3). (d) consent. 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 inquiry from a Governmental Authority, including ~~(i) promptly~~ immediately 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 substantive meetings or discussions 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 either party and any Governmental Authority with respect to this Agreement; provided that, notwithstanding anything in this Agreement to the contrary, the Acquiring Parties shall determine the strategy to be pursued for obtaining and lead the effort to obtain all necessary actions or nonactions and consents from Governmental Authorities, including any related litigation and Remedy Actions, pursuant to any Antitrust Law in connection with the transactions contemplated by this Agreement, and the Company shall take all reasonably requested actions to support the Acquiring Parties in connection therewith. Notwithstanding anything to the contrary contained in this Agreement, the Acquiring Parties shall consult with the Company and consider in good faith the views of the Company in connection with all material communications with a Governmental Authority and strategy regarding the Antitrust Laws. (e) The Company and the Acquiring Parties, in their respective sole and absolute discretion, may (x) redact materials as necessary to comply with contractual arrangements address reasonable attorney client or other privilege or confidentiality concerns, exclude any information relating to Company valuation and similar matters relating to the transactions contemplated herein, and (y) designate any competitively sensitive material as “Outside Counsel Only Material” such that such materials and the information contained therein shall be given only to the outside counsel of the recipient and will not be disclosed to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel. (f) The Acquiring Parties and Merger Sub shall not, and shall not permit any of their controlled Affiliates to, (i) acquire or agree to acquire by merging or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests or (ii) take or agree to take any other action (including entering into or agreeing to enter into any material license, joint venture or other transaction), in each case that would reasonably be expected to (A) impose any material delay in the obtaining of, or increase the risk materially of not obtaining, approval from, or avoiding an Action by, any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period, (B) materially increase the risk of any Governmental Authority entering an Order prohibiting the consummation of the transactions contemplated by this Agreement or (C) otherwise materially delay or prevent the consummation of the transactions contemplated by this Agreement.

Appears in 1 contract

Samples: Merger Agreement (Chris Craft Industries Inc)

Appropriate Action; Consents; Filings. (a) In accordance with the terms and subject to the conditions of this ~~Agreement (including Section 6.5)~~Agreement, the parties hereto will use their respective reasonable best efforts ~~to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable~~ to consummate and make effective the transactions contemplated hereby and to cause the conditions to the Merger set forth in Article ~~VII~~ VI (Conditions to the Merger) to be satisfied as expeditiously as ~~practicable (and in any event at least five (5) Business Days prior to the Outside Date)~~possible, including using reasonable best efforts to accomplish the following: (i) the obtaining of all necessary ~~or advisable~~ actions or non-actions~~, waivers~~, Consents and approvals from Governmental Authorities necessary ~~or advisable~~ in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale~~ and the making of all necessary ~~or advisable~~ registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary ~~or advisable~~ to obtain an approval from, or to avoid any Action by, any Governmental Authority necessary in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale,~~ (ii) the obtaining of all other necessary consents, approvals or waivers from Third Parties (provided that none of the Company, the Acquiring Parties or Merger Sub shall be required to make or agree to make any payment or accept any material conditions or obligations with respect thereto, except as expressly set forth in Section 6.10(c)), including in respect of the Non-Arriver Extraction and the Arriver SaleParties, (iii) the defending of any ~~Actions~~lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale~~ including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed and (iv) the execution and delivery of any additional instruments 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 promptly (~~and,~~ A) and in ~~the case of filings required under the HSR Act, in no~~ any event ~~later than fifteen~~ within five (155) Business Days ~~following~~ of the date hereof~~) (i)~~ , make ~~and not withdraw any applicable~~ its filings under the HSR Act, and thereafter promptly (and in any event within fifteen (15) Business Days of the date hereof) make any other applications and filings required ~~or advisable~~ to be made with any Governmental Authorities as required under ~~the~~ applicable Antitrust Laws ~~or Investment Screening Laws of the jurisdictions set forth on Section 6.3(a) of the Company Disclosure Letter~~ with respect to the transactions contemplated hereby, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale,~~ (iiB) use its respective reasonable best efforts to comply at the earliest ~~practicable~~ possible date with any request under the HSR Act for additional information (including responding to any “second request”), documents or other materials received by such party from the U.S. Federal Trade Commission, the Antitrust Division of the U.S. Department of Justice or ~~from~~ by any other Governmental Authority under any Antitrust ~~Laws or Investment Screening~~ Laws in respect of any such filings with respect to the transactions contemplated hereby, including the ~~Merger, the Non-Arriver Extraction and the Arriver Sale~~ Merger and (~~iii~~C) act in good faith and ~~reasonably~~ cooperate with ~~each~~ the other party in connection with any such filings (including, if requested by ~~another~~ the other party, ~~considering in good faith~~ to duly consider all reasonable additions, deletions or changes suggested by the other party in connection therewith) and in connection with resolving any investigation or other inquiry of such agency or other Governmental Authority under any Antitrust ~~Laws and Investment Screening~~ Laws. In taking the foregoing actions, each of the Company and ~~the Acquiring Parties~~ Parent shall act reasonably and as promptly and expeditiously as ~~practicable~~possible. Notwithstanding anything in this Agreement to the contrary, obtaining any ~~Third Party Consents~~ consents, approvals or waivers from Third Parties pursuant to Section ~~6.3(a)(ii~~5.3(a)(ii) above or ~~otherwise, including any Consents required in connection with the Non-Arriver Extraction or the Arriver Sale,~~ otherwise shall not be a condition to the obligations of any party to consummate the Merger. (cb) Without limiting anything in this Section ~~6.3 (i)~~ 5.3, none of the parties hereto or their respective Affiliates shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby, except with the prior written consent of the other parties hereto and (ii) the Acquiring Parties and Merger Sub agree to take (and to cause their Affiliates to take) promptly any and all steps necessary or reasonably advisable or as may be required by any Governmental Authority to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws or Investment Screening Laws that may be required by any Governmental Authority so as to enable the parties to consummate the transactions contemplated by this Agreement, including the Merger, the Non-Arriver Extraction and the Arriver Sale as expeditiously as possible (and in any event at least five (5) Business Days prior to the Outside Date), including committing to and effecting, by consent decree, hold separate order, trust or otherwise, (A) selling, divesting, licensing or otherwise disposing of, or holding separate and agreeing to sell, divest, license or otherwise dispose of, any assets of the Company, the Acquiring Parties, Merger Sub or their respective Affiliates, (B) terminating, amending or assigning existing relationships and contractual rights and obligations, (C) requiring the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates to grant any right or commercial or other accommodation to, or enter into any material commercial contractual or other commercial relationship with, any Third Party and (D) imposing limitations on the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates with respect to how they own, retain, conduct or operate all or any portion of their respective businesses or assets (clauses (A) through (D) shall be referred to as “Remedy Actions”). Notwithstanding anything to the contrary set forth in this Section 6.3, the Acquiring Parties and Merger Sub shall not be required to commit or agree to, and the Company shall not be permitted to commit or agree to without the consent of the Acquiring Parties, any such Remedy Action contemplated by clause (ii) above to the extent any such Remedy Action contemplated by clause (ii) above (x) is not conditioned upon the consummation of the transactions contemplated by this Agreement or (y) would require, or cause to be taken, (1) any sale, divestiture, licensing or other disposal of, or other action with respect to, any assets or businesses of QUALCOMM Technology Licensing, (2) any sale, divestiture, licensing or other disposal of any assets or businesses of the Arriver Business, or any other action with respect to any assets or businesses of the Arriver Business, that would materially diminish or materially interfere with the benefits that QUALCOMM reasonably expects to receive from its ownership of the Arriver Business, (3) any sale or divestiture of any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a fair market value (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the economic impact determined with respect to any actions taken pursuant to the following clause (4), or (4) any other action (excluding sales or divestitures) with respect to any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a net negative economic impact (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the fair market value determined with respect to any actions taken pursuant to the foregoing clause (3)hereto. (dc) 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 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 substantive meetings or discussions 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 either party and any Governmental Authority with respect to this Agreement; provided that, notwithstanding anything in this Agreement to the contrary, the Acquiring Parties shall determine the strategy to be pursued for obtaining and lead the effort to obtain all necessary actions or nonactions and consents from Governmental Authorities, including any related litigation and Remedy Actions, pursuant to any Antitrust Law in connection with the transactions contemplated by this Agreement, and the Company shall take all reasonably requested actions to support the Acquiring Parties in connection therewith. Notwithstanding anything to the contrary contained in this Agreement, the Acquiring Parties shall consult with the Company and consider in good faith the views of the Company in connection with all material communications with a Governmental Authority and strategy regarding the Antitrust Laws. (e) The Company and ~~the Acquiring Parties~~Parent, in their respective sole and absolute discretion, may (x) redact materials as necessary to comply with contractual arrangements address reasonable attorney client or other privilege or confidentiality concerns, exclude any information relating to Company valuation and similar matters relating to the transactions contemplated herein, and (y) designate any competitively sensitive material as “Outside Counsel Only Material” such that such materials and the information contained therein shall be given only to the outside counsel of the recipient and will not be disclosed to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel. (f) The Acquiring Parties and Merger Sub shall not, and shall not permit any of their controlled Affiliates to, (i) acquire or agree to acquire by merging or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests or (ii) take or agree to take any other action (including entering into or agreeing to enter into any material license, joint venture or other transaction), in each case that would reasonably be expected to (A) impose any material delay in the obtaining of, or increase the risk materially of not obtaining, approval from, or avoiding an Action by, any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period, (B) materially increase the risk of any Governmental Authority entering an Order prohibiting the consummation of the transactions contemplated by this Agreement or (C) otherwise materially delay or prevent the consummation of the transactions contemplated by this Agreement.

Appears in 1 contract

Samples: Merger Agreement (RR Donnelley & Sons Co)

Appropriate Action; Consents; Filings. (a) ~~In accordance with the terms and subject to the conditions of this Agreement (including Section 6.5)~~The Company, the ~~parties hereto will~~ Parent and the Purchaser shall use ~~their respective~~ commercially reasonable ~~best~~ efforts to (i) take, or cause to be taken~~, all actions, and to do~~, or cause to be done, and to assist and cooperate with the ~~other~~ parties in doing, any and all things necessary, ~~proper or advisable~~ to eliminate each and every impediment under any Competition Law that is asserted by any Governmental Entities to consummate and make effective the transactions contemplated ~~hereby~~ by this Agreement as promptly as practicable, (ii) take any and all such actions necessary to cause the ~~conditions~~ expiration of the notice periods under the Competition Laws with respect to such transactions as promptly as possible after the ~~Merger set forth in Article VII~~ execution of this Agreement, including, but not limited to (A) negotiating, committing to and effecting by consent decree, hold separate orders, or otherwise, the sale, divesture or disposition of such of the Company’s assets, properties or businesses to be ~~satisfied~~ acquired by it pursuant hereto as ~~expeditiously as practicable (and~~ are necessary in order to effect the dissolution of any injunction, temporary restraining order or other order in any ~~event at least five (5) Business Days prior to~~ suit or proceeding, which would otherwise have the ~~Outside Date), including using reasonable best efforts to accomplish the following: (i) the obtaining~~ effect of ~~all necessary or advisable actions or non-actions, waivers, Consents and approvals from Governmental Authorities necessary or advisable in connection with~~ preventing the consummation of the transactions contemplated by this ~~Agreement, including~~ Agreement two (2) Business Days prior to the ~~Merger,~~ Extended Outside Date and (B) defending through litigation on the Non-Arriver Extraction and the Arriver Sale and the making of all necessary or advisable registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary or advisable merits any claim asserted in court by any party in order to ~~obtain an approval from~~avoid entry of, or to have vacated or terminated, any decree, order or judgment (whether temporary, preliminary or permanent) that would prevent the Closing from occurring less than two (2) Business Days prior to the Extended Outside Date; provided, however, that such litigation in no way limits the obligation of Company, Purchaser, and Parent to use its best efforts, and to take any and all steps necessary, to eliminate each and every impediment under Competition Law to close the transactions contemplated hereby no later than two (2) Business Days prior to the Extended Outside Date; (iii) obtain from any Governmental Entities any and all consents, licenses, permits, waivers, approvals, authorizations or orders required to be obtained by the Parent, the Purchaser or the Company, or any of their respective Subsidiaries in order to effect the Closing by not later than two (2) Business Days prior to the Extended Outside Date, and to avoid any ~~Action by,~~ and all action or proceeding by any Governmental ~~Authority~~ Entity (including those in connection with the ~~consummation~~ HSR Act) that would prevent effecting the Closing by not later than two (2) Business Days prior to the Extended Outside Date or delay the Closing beyond two (2) Business Days prior to the Extended Outside Date, in connection with the authorization, execution and delivery of the transactions contemplated by this Agreement, including the Merger, the Non-Arriver Extraction and the Arriver Sale, (ii) the obtaining of all other necessary consents, approvals or waivers from Third Parties (provided that none of the Company, the Acquiring Parties or Merger Sub shall be required to make or agree to make any payment or accept any material conditions or obligations with respect thereto, except as expressly set forth in Section 6.10(c)), including in respect of the Non-Arriver Extraction and the Arriver Sale, (iii) the defending of any Actions, whether judicial or administrative, challenging this Agreement or and the consummation of the transactions contemplated hereby, including the Offer and the Merger, and (iv)(A) as promptly as reasonably practicable, and in any event within eight (8) Business Days after the ~~Non-Arriver Extraction~~ date hereof, 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 Offer and the Arriver Sale including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed and (iv) the execution and delivery of any additional instruments necessary to consummate the Merger and any other transactions to be performed or consummated by such party in accordance with the terms of this Agreement and to carry out fully the purposes of this Agreement. (b) Each of the parties hereto shall promptly (and, in the case of filings required under the HSR Act, ~~in no event later than fifteen~~ and (15B) ~~Business Days following~~ as promptly as reasonably practicable after the date hereof~~) (i)~~ , make ~~and not withdraw any applicable filings under the HSR Act~~all necessary filings, and thereafter make any other ~~applications~~ required submissions, and ~~filings required or advisable under the Antitrust Laws or Investment Screening Laws of the jurisdictions set forth on Section 6.3(a) of the Company Disclosure Letter~~ pay any fees due in connection therewith, with respect to ~~the transactions contemplated hereby, including the Merger~~this Agreement, the ~~Non-Arriver Extraction~~ Offer and the ~~Arriver Sale~~Merger required under other applicable Law; provided, ~~(ii) comply at~~ that the earliest practicable date with any request under the HSR Act for additional information (including responding to any “second request”), documents or other materials received by such party from the U.S. Federal Trade Commission, the Antitrust Division of the U.S. Department of Justice or from any other Governmental Authority under any Antitrust Laws or Investment Screening Laws in respect of any such filings with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction Company and the ~~Arriver Sale and (iii) act in good faith and reasonably~~ Purchaser shall cooperate with each other ~~party~~ in connection with (x) preparing and filing the Offer Documents, the Schedule 14D-9 and any ~~such filings~~ Other Filings, (~~including~~y) determining whether any action by or in respect of, ~~if requested by another party~~or filing with, ~~considering in good faith all reasonable additions~~any Governmental Entity is required, deletions or changes suggested by the other party in connection therewith) and in connection with resolving any investigation or other inquiry of such agency or other Governmental Authority under any Antitrust Laws and Investment Screening Laws. In taking the foregoing actions, each of the Company and the Acquiring Parties shall act reasonably and as promptly as practicable. Notwithstanding anything in this Agreement to the contrary, obtaining any Third Party Consents or waivers pursuant to Section 6.3(a)(ii) above or otherwise, including any Consents required in connection with the ~~Non-Arriver Extraction~~ consummation of the Offer or the ~~Arriver Sale~~Merger and (z) seeking any such actions, ~~shall not be a condition to the obligations of~~ consents, approvals or waivers or making any ~~party to consummate the Merger. (c)~~ such filings. Without limiting ~~anything in this Section 6.3 (i) none of~~ the parties hereto or their respective Affiliates shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated herebyforegoing, except with the prior written consent of the other parties hereto and (ii) the Acquiring Parties and Merger Sub agree to take (and to cause their Affiliates to take) promptly any and all steps necessary or reasonably advisable or as may be required by any Governmental Authority to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws or Investment Screening Laws that may be required by any Governmental Authority so as to enable the parties to consummate the transactions contemplated by this Agreement, including the Merger, the Non-Arriver Extraction and the Arriver Sale as expeditiously as possible (and in any event at least five (5) Business Days prior to the Outside Date), including committing to and effecting, by consent decree, hold separate order, trust or otherwise, (A) selling, divesting, licensing or otherwise disposing of, or holding separate and agreeing to sell, divest, license or otherwise dispose of, any assets of the Company, the Acquiring Parties, Merger Sub or their respective Affiliates, (B) terminating, amending or assigning existing relationships and contractual rights and obligations, (C) requiring the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates to grant any right or commercial or other accommodation to, or enter into any material commercial contractual or other commercial relationship with, any Third Party and (D) imposing limitations on the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates with respect to how they own, retain, conduct or operate all or any portion of their respective businesses or assets (clauses (A) through (D) shall be referred to as “Remedy Actions”). Notwithstanding anything to the contrary set forth in this Section 6.3, the Acquiring Parties and Merger Sub shall not be required to commit or agree to, Parent and the ~~Company~~ Purchaser shall ~~not be permitted~~ use commercially reasonable efforts to commit or agree to without the consent of the Acquiring Parties, any such Remedy Action contemplated by clause (ii) above to the extent any such Remedy Action contemplated by clause (ii) above (x) is not conditioned upon the consummation of the transactions contemplated by this Agreement or (y) would requiretake, or cause to be taken, ~~(1) any sale, divestiture, licensing~~ or other disposal of, or other action with respect to, any assets or businesses of QUALCOMM Technology Licensing, (2) any sale, divestiture, licensing or other disposal of any assets or businesses of the Arriver Business, or any other action with respect to any assets or businesses of the Arriver Business, that would materially diminish or materially interfere with the benefits that QUALCOMM reasonably expects to receive from its ownership of the Arriver Business, (3) any sale or divestiture of any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a fair market value (measured at the time of such request using customary valuation methodologies cause to be ~~agreed by the parties hereto in good faith~~done, ~~which may include an evaluation~~ all things necessary to defend or otherwise resolve any Proceeding by a ~~third party that is mutually selected by the Parties)~~ Governmental Entity described in ~~excess of the amount set forth on Section 6.3(c~~paragraph (i) of ~~the Company Disclosure Letter less the amount of the economic impact determined with respect to any actions taken pursuant to the following~~ clause (4), or (4) any other action (excluding sales or divestitures) with respect to any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a net negative economic impact (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the fair market value determined with respect to any actions taken pursuant to the foregoing clause (3). (d) ~~Each~~ of Annex I, with such commercially reasonable efforts determined without regard to the materiality of the ~~parties hereto will~~ jurisdiction in which such Proceeding is pending to the Company Business or the business of Parent. The Company and the Purchaser shall furnish to each other all information required for any application or other filing under the ~~other such necessary information~~ rules and ~~reasonable assistance as the other may reasonably request in connection with the preparation~~ regulations of any required governmental filings or submissions 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 substantive meetings or discussions 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 either party and any Governmental Authority with respect to this Agreement; provided that, notwithstanding anything in this Agreement to the contrary, the Acquiring Parties shall determine the strategy to be pursued for obtaining and lead the effort to obtain all necessary actions or nonactions and consents from Governmental Authorities, including any related litigation and Remedy Actions, pursuant to any Antitrust applicable Law in connection with the transactions contemplated by this Agreement~~, and the Company shall take all reasonably requested actions to support the Acquiring Parties in connection therewith.~~ . (b) Notwithstanding anything to the contrary ~~contained~~ in this Agreement, in connection with the ~~Acquiring Parties~~ receipt of any necessary approvals or clearances of a Governmental Entity (including under the HSR Act), neither the Parent, the Purchaser nor the Company (nor any of their respective Subsidiaries or affiliates) shall ~~consult~~ be required to sell, hold separate or otherwise dispose of or conduct their business in a specified manner, or agree to sell, hold separate or otherwise dispose of or conduct their businesses in a specified manner, or enter into or agree to enter into a voting trust arrangement, proxy arrangement, “hold separate” agreement or arrangement or similar agreement or arrangement with respect to the assets, operations or conduct of their business in a specified manner, or permit the sale, holding separate or other disposition of, any assets of the Parent, the Company or their respective Subsidiaries or affiliates if it would result in a Regulatory Material Adverse Effect. Further, notwithstanding the foregoing or anything contained in this Agreement to the contrary, Parent, Purchaser or the Company shall not be required to agree to take any action contemplated under this subsection (b) unless such actions are conditioned upon the occurrence of the Closing or are effective on or after the Closing. Further, nothing contained in this Agreement shall restrict the Parent or any of its affiliates from developing, soliciting, considering, communicating, exchanging or furnishing information, negotiating, disclosing, entering into or consummating potential or definitive strategic transactions with other Persons through both internally generated and third-party proposals. (c) The Company and the Purchaser shall give (or shall cause their respective Subsidiaries to give) any notices to Third Parties, and use, and cause their respective Subsidiaries to use, their commercially reasonable efforts to obtain any Required Third Party Consents; provided, however that the Company and the Purchaser 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 either party shall fail to obtain any Third Party consent described in the first sentence of this Section 5.4(b) such party shall use its commercially reasonable efforts to minimize any adverse effect upon the Company and the Parent, their respective Subsidiaries, and their respective businesses resulting, or which could reasonably be expected to result, after the Acceptance Time or the Effective Time, from the failure to obtain such consent. (d) Without limiting the generality of anything contained in this Section 5.4, each party hereto shall: (i) give the other parties prompt notice of the making or commencement of any request, inquiry, investigation, action or Proceeding by or before any Governmental Entity with respect to the Offer or the Merger 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, action or Proceeding; and (iii) promptly inform the other parties of any communication to or from any Governmental Entity regarding the Offer or the Merger or any of the other transactions contemplated by this Agreement. Each party hereto will consult and cooperate with the other parties and will consider in good faith the views of the ~~Company~~ other parties in connection with ~~all material communications~~ any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted in connection with a the Offer or the Merger or any of the other transactions contemplated by this Agreement. In addition, except as may be prohibited by any Governmental ~~Authority~~ Entity or by any Law, in connection with any such request, inquiry, investigation, action or Proceeding, each party hereto will permit authorized representatives of the other parties to be present at each meeting or conference relating to such request, inquiry, investigation, action or Proceeding and ~~strategy regarding the Antitrust Laws~~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 Proceeding. (e) ~~The Company and~~ Notwithstanding anything to the ~~Acquiring Parties~~contrary in this Agreement, in ~~their respective sole and absolute discretion~~connection with obtaining any approval or consent from any Person with respect to the Offer or the Merger or any of the other transactions contemplated by this Agreement, ~~may~~ (xi) ~~redact materials as necessary~~ none of the Company or any Company Subsidiary shall be permitted to, without the prior written consent of the Purchaser, pay or commit to ~~comply with contractual arrangements address reasonable attorney client~~ pay to such Person whose approval or consent is being solicited any cash or other ~~privilege~~ consideration, make any commitment or ~~confidentiality concerns, exclude~~ incur any ~~information relating~~ liability or other obligation due to ~~Company valuation and similar matters relating to the transactions contemplated herein,~~ such Person and (yii) ~~designate any competitively sensitive material as “Outside Counsel Only Material” such that such materials and~~ neither the ~~information contained therein~~ Parent nor the Purchaser shall be ~~given only~~ required to ~~the outside counsel of the recipient and will not be disclosed~~ pay or commit to ~~employees~~pay to such Person whose approval or consent is being solicited any cash or other consideration, ~~officers~~ make any commitment or ~~directors of the recipient unless express permission is obtained in advance from the source of the materials~~ incur any liability or ~~its legal counsel~~other obligation. (f) ~~The Acquiring Parties~~ Notwithstanding anything to the contrary set forth herein, from and ~~Merger Sub~~ after the date hereof, the Company shall ~~not~~use commercially reasonable efforts to provide or cause to be provided to Parent and Purchaser all assistance reasonably requested by Parent and Purchaser in connection with marketing, solicitation, negotiation and ~~shall not permit any~~ preparation for a sale of ~~their controlled Affiliates to~~the FUSE Business or other transaction involving the FUSE Business, including the use of commercially reasonable efforts (i) ~~acquire~~ to provide such information, financial or ~~agree~~ otherwise, with respect to ~~acquire by merging~~ the FUSE Business that Parent or ~~consolidating with~~Purchaser may reasonably request, ~~or by purchasing a portion of~~ including management presentations, and respond to inquiries from third parties regarding the ~~assets of or equity in~~FUSE Business, ~~or by any other manner, any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests or~~ (ii) ~~take~~ to assist in the preparation of disclosure schedules, exhibits and ancillary agreements for any definitive agreement with respect to a transaction involving the FUSE Business, (iii) to assist in transition planning with respect to the sale of the FUSE Business and the separation of the FUSE Business, and (iv) to assist in obtaining approvals from Governmental Entities and consents and notices required to be obtained from or ~~agree~~ made to ~~take~~ other Persons in connection with consummation of any ~~other action~~ transaction involving the FUSE Business. Notwithstanding any provision herein to the contrary (including ~~entering into or agreeing to enter into any material license, joint venture or other transaction~~Section 5.2), ~~in each case that would~~ Parent and Purchaser are hereby authorized to share information regarding the FUSE Business to any potential counterparties to a transaction involving the FUSE Business, subject to execution of a confidentiality agreement reasonably ~~be expected~~ acceptable to ~~(A) impose any material delay in~~ the obtaining of, or increase the risk materially of not obtaining, approval from, or avoiding an Action by, any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period, (B) materially increase the risk of any Governmental Authority entering an Order prohibiting the consummation of the transactions contemplated by this Agreement or (C) otherwise materially delay or prevent the consummation of the transactions contemplated by this Agreementparties.

Appears in 1 contract

Samples: Merger Agreement (EndoChoice Holdings, Inc.)

Appropriate Action; Consents; Filings. (a) In accordance with the terms and subject to the conditions of this Agreement (including Section 6.5), the parties hereto will use their respective reasonable best efforts ~~to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable~~ to consummate and make effective the transactions contemplated hereby and to cause the conditions to the Merger set forth in Article VII to be satisfied as expeditiously as practicable (and in any event at least five (5) Business Days prior to the ~~Outside~~ Termination Date), including using reasonable best efforts to accomplish the following: (i) the obtaining of all necessary ~~or advisable~~ actions or non-actions~~, waivers~~, Consents and approvals from Governmental Authorities necessary ~~or advisable~~ in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale~~ and the making of all necessary ~~or advisable~~ registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary ~~or advisable~~ to obtain an approval from, or to avoid any Action by, any Governmental Authority necessary in connection with the consummation of the transactions contemplated by this Agreement, including the Merger~~, the Non-Arriver Extraction and the Arriver Sale~~, (ii) the obtaining of all other necessary consents, approvals or waivers from Third Parties (provided that ~~none of~~ the ~~Company, the Acquiring Parties or Merger Sub~~ Company shall not be required to make or agree to make any payment or accept any material conditions or obligations with respect thereto~~, except as expressly set forth in Section 6.10(c~~)~~), including in respect of the Non-Arriver Extraction and the Arriver Sale~~, (iii) the defending of any ~~Actions~~lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including the ~~Merger, the Non-Arriver Extraction and the Arriver Sale including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed~~ 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~~. (b)~~ . Each of the parties hereto shall (A) promptly (~~and, in the case of filings required under the HSR Act,~~ and in no event later than ~~fifteen~~ ten (1510) Business Days following the date hereof) ~~(i)~~ make ~~and not withdraw any applicable~~ its filings under the HSR Act, and thereafter make any other applications and filings required ~~or advisable~~ under the Antitrust ~~Laws or Investment Screening~~ Laws of the jurisdictions set forth on Section 6.3(a) of the Company Disclosure Letter with respect to the transactions contemplated hereby, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale,~~ (iiB) comply at the earliest reasonable practicable date with any request under the HSR Act for additional information (including responding to any “second request”), documents or other materials received by such party from the U.S. Federal Trade Commission, the Antitrust Division of the U.S. Department of Justice or ~~from~~ by any other Governmental Authority under any Antitrust ~~Laws or Investment Screening~~ Laws in respect of any such filings with respect to the transactions contemplated hereby, including the ~~Merger, the Non-Arriver Extraction and the Arriver Sale~~ Merger and (~~iii~~C) act in good faith and reasonably cooperate with ~~each~~ the other party in connection with any such filings (including, if requested by ~~another~~ the other party, ~~considering in good faith~~ to accept all reasonable additions, deletions or changes suggested by the other party in connection therewith) and in connection with resolving any investigation or other inquiry of such agency or other Governmental Authority under any Antitrust ~~Laws and Investment Screening~~ Laws. In taking the foregoing actions, each of the Company and ~~the Acquiring Parties~~ Parent shall act reasonably and as promptly as practicable. Notwithstanding anything in this Agreement to the contrary, obtaining any Third Party Consents or waivers pursuant to Section 6.3(a)(ii) above or ~~otherwise, including any Consents required in connection with the Non-Arriver Extraction or the Arriver Sale,~~ otherwise shall not be a condition to the obligations of any party to consummate the Merger. (cb) Without limiting anything in this Section ~~6.3~~ 6.3, (i) none of the parties hereto or their respective Affiliates shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby, except with the prior written consent of the other parties hereto and (ii) ~~the Acquiring Parties~~ Parent and ~~Merger~~ Acquisition Sub agree to take (and to cause their Affiliates to take) promptly any and all steps reasonably necessary or reasonably advisable or as may be required by any Governmental Authority to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws ~~or Investment Screening Laws~~ that may be required by any Governmental Authority so as to enable the parties to consummate the transactions contemplated by this Agreement, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale as expeditiously as possible (and in any event at least five (5) Business Days prior to the Outside Date),~~ including committing to and effecting, by consent decree, hold separate order, trust or otherwise, (A) selling, divesting, licensing or otherwise disposing of, or holding separate and agreeing to sell, divest, license or otherwise dispose of, any assets of the Company, the Acquiring Parties, Merger Sub or their respective Affiliates, (B) terminating, amending or assigning existing relationships and contractual rights and obligations, (CB) requiring ~~the Acquiring Parties~~Parent, ~~Merger~~ Acquisition Sub, the Company or any of their respective Affiliates to grant any right or commercial or other accommodation to, or enter into any material commercial contractual or other commercial relationship with, any Third Party and (DC) imposing limitations on ~~the Acquiring Parties~~Parent, ~~Merger~~ Acquisition Sub, the Company or any of their respective Affiliates with respect to how they own, retain, conduct or operate all or any portion of their respective businesses or assets (~~clauses~~ any or all of (AA)-(C) ~~through (D~~above a “Remedy”); provided that nothing in this Section 6.3(b) shall ~~be referred~~ require Parent or Acquisition Sub to commit to and/or effect, by consent decree, hold separate order, trust or otherwise, any Remedy that, except as ~~“Remedy Actions”)~~set forth on Section 6.3(b) of the Parent Disclosure Letter (x) would require the selling, divesting, licensing or otherwise disposing of, or holding separate and agreeing to sell, divest or otherwise dispose of, any assets of Parent, Acquisition Sub, the Company or any of their respective Affiliates or (y) would require Parent or Acquisition Sub to license, provide access to, distribute, disclose, or otherwise would limit the freedom of action of Parent or Acquisition Sub with respect to any data, assets, operations, businesses, product lines or interests therein of Parent, Acquisition Sub, or any of their respective Affiliates or the Company, or any of its respective Affiliates. Notwithstanding anything ~~to the contrary set forth~~ in this Section ~~6.3~~6.3 to the contrary, ~~the Acquiring Parties and Merger~~ neither Parent nor Acquisition Sub ~~shall not~~ will be required to ~~commit or agree to~~take any action, ~~and~~ nor shall the Company ~~shall not be permitted to commit~~ or ~~agree to without the consent of the Acquiring Parties,~~ its Subsidiaries take any such ~~Remedy Action~~ action (except at the request of Parent), in each case contemplated by clause (ii) above ~~to the extent any~~ unless such ~~Remedy Action contemplated by clause (ii) above (x)~~ action is ~~not~~ conditioned upon the consummation of the transactions contemplated by this Agreement or (y) would require, or cause to be taken, (1) any sale, divestiture, licensing or other disposal of, or other action with respect to, any assets or businesses of QUALCOMM Technology Licensing, (2) any sale, divestiture, licensing or other disposal of any assets or businesses of the Arriver Business, or any other action with respect to any assets or businesses of the Arriver Business, that would materially diminish or materially interfere with the benefits that QUALCOMM reasonably expects to receive from its ownership of the Arriver Business, (3) any sale or divestiture of any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a fair market value (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the economic impact determined with respect to any actions taken pursuant to the following clause (4), or (4) any other action (excluding sales or divestitures) with respect to any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a net negative economic impact (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the fair market value determined with respect to any actions taken pursuant to the foregoing clause (3)Agreement. (dc) Subject to Parent’s compliance with this Section 6.3, Parent shall lead all communications and strategy for dealing with any Governmental Authority in connection with any review, challenge or Action under Antitrust Laws. 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 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 substantive meetings or discussions 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 either party and any Governmental Authority with respect to this Agreement; provided that, notwithstanding anything in this Agreement to the contrary, the Acquiring Parties shall determine the strategy to be pursued for obtaining and lead the effort to obtain all necessary actions or nonactions and consents from Governmental Authorities, including any related litigation and Remedy Actions, pursuant to any Antitrust Law in connection with the transactions contemplated by this Agreement, and the Company shall take all reasonably requested actions to support the Acquiring Parties in connection therewith. Notwithstanding anything to the contrary contained in this Agreement, the Acquiring Parties shall consult with the Company and consider in good faith the views of the Company in connection with all material communications with a Governmental Authority and strategy regarding the Antitrust Laws. (e) The Company and ~~the Acquiring Parties~~Parent, in their reasonable determination in consultation with their respective ~~sole and absolute discretion~~outside counsels, may (x) redact materials as necessary to comply with contractual arrangements address reasonable attorney client or other privilege or confidentiality concerns, exclude any information relating to Company valuation and similar matters relating to the transactions contemplated herein, and (y) designate any competitively sensitive material as “Outside Counsel Only Material” such that such materials and the information contained therein shall be given only to the outside counsel of the recipient and will not be disclosed to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel. (fd) ~~The Acquiring Parties~~ Except as specified on Section 6.3(d) of the Parent Disclosure Letter, Parent and ~~Merger~~ Acquisition Sub shall not, and shall not permit any of their ~~controlled~~ Affiliates to, without the prior written consent of the Company (in its sole discretion), (i) acquire or agree to acquire by merging or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests or (ii) take or agree to take any other action (including entering into or agreeing to enter into any material license, joint venture or other transaction), in each case that would reasonably be expected to (A) impose any material delay in the obtaining of, or materially increase the risk ~~materially~~ of not obtaining, approval from, or avoiding an Action by, any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period, (B) materially increase the risk of any Governmental Authority entering an Order prohibiting the consummation of the transactions contemplated by this Agreement or (C) otherwise prevent or materially delay ~~or prevent~~ the consummation of the transactions contemplated by this Agreement.

Appears in 1 contract

Samples: Merger Agreement (Costar Group, Inc.)

Appropriate Action; Consents; Filings. (a) In accordance with the terms and subject to the conditions of this Agreement (including Section ~~6.5~~6.6), the parties hereto will use their respective reasonable best efforts to ~~take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to~~ consummate and make effective the transactions contemplated ~~hereby~~ hereby, including the Merger, and to cause the conditions to the Merger set forth in Article VII to be satisfied as expeditiously as practicable (and in any event at least five ~~(5)~~ Business Days prior to the ~~Outside~~ Termination Date), including using reasonable best efforts to accomplish the following: (i) the obtaining of all necessary ~~or advisable~~ actions or non-actions~~, waivers~~, Consents and approvals from Governmental Authorities necessary ~~or advisable~~ in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale~~ and the making of all necessary ~~or advisable~~ registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary ~~or advisable~~ to obtain an approval from, or to avoid any Action by, any Governmental Authority necessary in connection with the consummation of the transactions contemplated by this Agreement, including the Merger~~, the Non-Arriver Extraction and the Arriver Sale~~, (ii) the obtaining of all other necessary consents, approvals or waivers from Third Parties (provided that ~~none of~~ the ~~Company, the Acquiring Parties or Merger Sub~~ Company shall not be required to make or agree to make any payment or accept any material conditions or obligations with respect ~~thereto, except as expressly set forth in Section 6.10(c~~thereto unless such payment is reimbursed by Parent and such condition is effective only after the Effective Time and consented to by Parent)~~), including in respect of the Non-Arriver Extraction and the Arriver Sale~~, (iii) the defending of any ~~Actions~~lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale~~ including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed and (iv) the execution and delivery of any additional instruments 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~~ Agreement, including the Merger, and to carry out fully the purposes of this Agreement~~. (b)~~ . Each of the parties hereto shall promptly (~~and, in the case of filings required under the HSR Act, in~~ A) no ~~event~~ later than ~~fifteen (15)~~ 10 Business Days following the date hereof~~) (i)~~ , make ~~and not withdraw any applicable~~ its filings under the HSR Act, and ~~thereafter~~ unless the parties hereto mutually agree in writing to a different timeframe, no later than 15 Business Days following the date hereof, make any other applications and filings required ~~or advisable~~ under the Antitrust ~~Laws or~~ and Foreign Investment ~~Screening~~ Laws of the jurisdictions set forth on Section 6.3(a) of the Company Disclosure Letter and Parent Disclosure Letter with respect to the transactions contemplated hereby, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale,~~ (iiB) comply at the earliest practicable date with any request under the HSR Act for additional information (including responding to any “"second request”"), documents or other materials received by such party from the U.S. Federal Trade Commission, the Antitrust Division of the U.S. Department of Justice or ~~from~~ by any other Governmental Authority under any Antitrust ~~Laws or~~ and Foreign Investment ~~Screening~~ Laws in respect of any such filings with respect to the transactions contemplated hereby, including the ~~Merger, the Non-Arriver Extraction and the Arriver Sale~~ Merger and (~~iii~~C) act in good faith and reasonably cooperate with ~~each~~ the other party in connection with any such filings (including, if requested by ~~another~~ the other party, ~~considering in good faith~~ consider all reasonable additions, deletions or changes suggested by the other party in connection therewith) and in connection with resolving any investigation or other inquiry of such agency or other Governmental Authority under any Antitrust ~~Laws~~ and Foreign Investment ~~Screening~~ Laws. In taking the foregoing actions, each of the Company and ~~the Acquiring Parties~~ Parent shall act reasonably and as promptly as practicable. Notwithstanding anything in this Agreement to the contrary, obtaining any Third Party Consents or waivers pursuant to Section ~~6.3(a)(ii~~6.3(a) above or ~~otherwise, including any Consents required in connection with the Non-Arriver Extraction or the Arriver Sale,~~ otherwise shall not be a condition to the obligations of any party to consummate the Merger. (cb) Without limiting anything in this Section ~~6.3~~ 6.3, (i) none of the parties ~~hereto~~ hereto, or their respective Affiliates shall extend any waiting period under the HSR Act or comparable period under ~~the HSR Act~~ other Antitrust and Foreign Investment Laws or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby, including the Merger, except with the prior written consent of the other parties hereto and (ii) ~~the Acquiring Parties~~ Parent and ~~Merger~~ Acquisition Sub agree to take (and to cause their Affiliates to take) promptly any and all steps necessary or reasonably advisable or as may be required by any Governmental Authority to avoid or eliminate each and every impediment and obtain all Consents ~~under any Antitrust Laws or Investment Screening Laws~~ set forth on Section 6.3(a) of the Company Disclosure Letter that may be required by any Governmental Authority so as to enable the parties to consummate the transactions contemplated by this Agreement, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale~~ as expeditiously as possible (and in any event at least five ~~(5)~~ Business Days prior to the ~~Outside~~ Termination Date), including committing to and effecting, by consent decree, hold separate order, trust or otherwise, (A) selling, divesting, licensing or otherwise disposing of, or holding separate and agreeing to sell, divest, license or otherwise dispose of, any assets of the Company, ~~the Acquiring Parties~~Parent, ~~Merger~~ Acquisition Sub or their respective Affiliates, (B) terminating, amending or assigning existing ~~relationships~~ relationships, and contractual rights and ~~obligations~~obligations of the Company, Parent, Acquisition Sub or their respective Affiliates, (C) ~~requiring the Acquiring Parties~~requiring, ~~Merger~~ Parent, Acquisition Sub, or the Company or any of their respective Affiliates to grant any right or commercial or other accommodation to, or enter into any material commercial contractual or other commercial relationship with, any Third Party and (D) imposing limitations on ~~the Acquiring Parties~~Parent, ~~Merger~~ Acquisition Sub, the Company or any of their respective Affiliates with respect to how they own, retain, conduct or operate all or any portion of their respective businesses or assets (clauses (A) through (D) shall be referred to as “Remedy Actions”). Notwithstanding anything to the contrary set forth in this Section 6.3, the Acquiring Parties and Merger Sub shall not be required to commit or agree to, and the Company shall not be permitted to commit or agree to without the consent of the Acquiring Parties, assets; provided that any such ~~Remedy Action~~ action contemplated by clause (ii) above ~~to the extent any such Remedy Action contemplated by clause (ii) above (x)~~ is ~~not~~ conditioned upon the consummation of the transactions contemplated by this ~~Agreement~~ Agreement, including the Merger; provided, further, that Parent and Acquisition Sub shall not be required to take (or (yagree not to take) ~~would require, or cause to be taken~~any action, (1I) ~~any sale, divestiture, licensing or other disposal of, or other action with respect to, any assets or businesses~~ that is not conditional on the consummation of ~~QUALCOMM Technology Licensing~~the Merger, (2II) ~~any sale~~that would subject Parent, ~~divestiture, licensing or other disposal of any assets or businesses of the Arriver Business~~Acquisition Sub, or any ~~other action with respect~~ of their Affiliates to any ~~assets~~ criminal liability or ~~businesses~~ (III) when taken together with all other actions, efforts, or agreements, would reasonably be expected to have a material adverse effect on the business, operations or financial results of Parent and its Subsidiaries (including the Company and its Subsidiaries) as a whole. (c) Within 20 Business Days of the ~~Arriver Business, that would materially diminish or materially interfere with the benefits that QUALCOMM reasonably expects to receive from its ownership~~ date of ~~the Arriver Business,~~ this Agreement (3) any sale or divestiture of any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a fair market value (measured at the time of such request using customary valuation methodologies to be unless otherwise agreed by the parties ~~hereto in good faith~~hereto), ~~which~~ Parent shall submit to the Company the Security Clearance Filings, and the Company shall deliver the Security Clearance Filings to the CSAs within five Business Days thereafter. Parent shall take all actions necessary regarding the Security Clearance Filings, including providing all such information and assurances as may ~~include an evaluation by a third party that is mutually selected~~ be required, requested or imposed by the ~~Parties)~~ CSAs, including without limitation, entering into a commitment letter, special security agreement or other similar arrangement or agreement in ~~excess of the amount set forth on Section 6.3(c)~~ relation to any business of the Company ~~Disclosure Letter less the amount of the economic impact determined with respect to any actions taken pursuant~~ that is subject to the following clause (4), or (4) any other action (excluding sales or divestitures) with respect to any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a net negative economic impact (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the fair market value determined with respect to any actions taken pursuant to the foregoing clause (3)NISPOM Rule. (d) 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 reasonably cooperate in good faith 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 substantive meetings or discussions 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 either party and any Governmental Authority with respect to this Agreement; provided that, notwithstanding anything in this Agreement to the contrary, the Acquiring Parties shall determine the strategy to be pursued for obtaining and lead the effort to obtain all necessary actions or nonactions and consents from Governmental Authorities, including any related litigation and Remedy Actions, pursuant to any Antitrust Law in connection with the transactions contemplated by this Agreement, and the Company shall take all reasonably requested actions to support the Acquiring Parties in connection therewith. Notwithstanding anything to the contrary contained in this Agreement, the Acquiring Parties shall consult with the Company and consider in good faith the views of the Company in connection with all material communications with a Governmental Authority and strategy regarding the Antitrust Laws. (e) The Company and ~~the Acquiring Parties~~Parent, in their respective sole and absolute discretion, may ~~(x)~~ redact ~~materials~~ material as necessary to comply with contractual ~~arrangements~~ arrangements, address reasonable ~~attorney~~ attorney-client or other privilege or confidentiality ~~concerns,~~ concerns and exclude any information relating to Company valuation and similar matters relating to the transactions contemplated herein, ~~and (y)~~ or designate any competitively sensitive material as “"Outside Counsel Only Material” ," such that such materials and the information contained therein shall be given only to the outside counsel of the recipient and will not be disclosed to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel. (fe) ~~The Acquiring Parties~~ Parent and ~~Merger~~ Acquisition Sub shall not, and shall not permit any of their ~~controlled~~ Affiliates to, (i) acquire or agree to acquire by merging or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests or (ii) take or agree to take any other action (including entering into or agreeing to enter into any material license, joint venture or other transaction), in each case that would reasonably be expected to (A) impose any ~~material~~ delay in the obtaining of, or increase the risk ~~materially~~ of not obtaining, approval from, or avoiding an Action by, any Governmental Authority under Antitrust and Foreign Investment Laws necessary to consummate the transactions contemplated by this ~~Agreement~~ Agreement, including the Merger, or the expiration or termination of any applicable waiting period, (B) ~~materially~~ increase the risk of any Governmental Authority entering an Order under Antitrust and Foreign Investment Laws prohibiting the consummation of the transactions contemplated by this Agreement or (C) otherwise ~~materially~~ delay or prevent the consummation of the transactions contemplated by this Agreement, including the Merger.

Appears in 1 contract

Samples: Merger Agreement (TFI International Inc.)

Appropriate Action; Consents; Filings. (a) In accordance with the terms and subject to the conditions of this Agreement (including Section 6.5), the parties ~~hereto~~ will use their respective reasonable best efforts to ~~take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to~~ consummate and make effective the transactions contemplated ~~hereby~~ hereby, including the Merger, and to cause the conditions to the Merger set forth in Article VII to be satisfied as expeditiously as practicable (and in any event ~~at least five (5) Business Days prior to~~ on or before the ~~Outside~~ Termination Date), including using reasonable best efforts to accomplish the following: (i) the obtaining of all necessary ~~or advisable~~ actions or non-actions~~, waivers~~, Consents and approvals from Governmental Authorities necessary ~~or advisable~~ in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale~~ and the making of all necessary ~~or advisable~~ registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary ~~or advisable~~ to obtain an approval from, or to avoid any Action by, any Governmental Authority necessary in connection with the consummation of the transactions contemplated by this Agreement, including the Merger~~, the Non-Arriver Extraction and the Arriver Sale~~, (ii) the obtaining of all other necessary consents, approvals or waivers from Third Parties (provided that ~~none of~~ the ~~Company, the Acquiring Parties or Merger Sub~~ Company shall not be required to make or agree to make any payment or accept any material conditions or obligations with respect thereto~~, except as expressly set forth in Section 6.10(c~~)~~), including in respect of the Non-Arriver Extraction and the Arriver Sale~~, (iii) the defending of any ~~Actions~~lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale~~ including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed and (iv) the execution and delivery of any additional instruments 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~~ Agreement, including the Merger, and to carry out fully the purposes of this Agreement~~. (b)~~ . Each of the parties ~~hereto~~ shall promptly (~~and, in the case of filings required under the HSR Act,~~ and in no event later than ~~fifteen (15)~~ 10 Business Days following the date hereof~~) (i) make~~ ), file and not withdraw ~~any applicable filings under~~ applications with the HSR Act, and thereafter make any other applications and filings required or advisable under the Antitrust Laws or Investment Screening Laws of the jurisdictions set forth on Section 6.3(a) of the Company Disclosure Letter with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale, (ii) comply at the earliest practicable date with any request under the HSR Act for additional information (including responding to any “second request”), documents or other materials received by such party from the U.S. Federal Trade Commission, the Antitrust Division of the U.S. Department of Justice or from any other Governmental Authority under any Antitrust Laws or Investment Screening Laws in respect of any such filings with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale and (iii) act in good faith and reasonably cooperate with each other party in connection with any such filings (including, if requested by another party, considering in good faith all reasonable additions, deletions or changes suggested by the other party in connection therewith) and in connection with resolving any investigation or other inquiry of such agency or other Governmental Authority under any Antitrust Laws and Investment Screening LawsFCC. In taking the foregoing actions, each of the Company and ~~the Acquiring Parties~~ Parent shall act reasonably and as promptly as practicable. Notwithstanding anything in this Agreement to the contrary, obtaining any ~~Third~~ Third-Party Consents or waivers pursuant to Section 6.3(a)(ii) above or ~~otherwise, including any Consents required in connection with the Non-Arriver Extraction or the Arriver Sale,~~ otherwise shall not be a condition to the obligations of any party to consummate the Merger. (cb) Without limiting anything in this Section ~~6.3 (i) none of the parties hereto~~ 6.3, in no circumstance shall Parent, Acquisition Sub or their ~~respective~~ Affiliates shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby, except with the prior written consent of the other parties hereto and (ii) the Acquiring Parties and Merger Sub agree to take (and to cause their Affiliates to take) promptly any and all steps necessary or reasonably advisable or as may be required ~~by any Governmental Authority~~ to ~~avoid~~ agree, commit to or eliminate each and every impediment and obtain all Consents under any Antitrust Laws or Investment Screening Laws that may be required by any Governmental Authority so as to enable the parties to consummate the transactions contemplated by this Agreement, including the Merger, the Non-Arriver Extraction and the Arriver Sale as expeditiously as possible (and in any event at least five (5) Business Days prior to the Outside Date), including committing to and effectingeffect, by consent decree, hold separate order, trust or otherwise, (A) selling, divesting, licensing or otherwise disposing of, or holding separate and agreeing to sell, divest, license or otherwise dispose of, any assets of the Company, ~~the Acquiring Parties~~Parent, ~~Merger~~ Acquisition Sub or their respective Affiliates, (B) terminating, amending or assigning existing relationships and contractual rights and obligations, (C) ~~requiring the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates to grant~~ granting any right or commercial or other accommodation to, or ~~enter~~ entering into any material commercial contractual or other commercial relationship with, any Third Party ~~and~~ or (D) imposing limitations on ~~the Acquiring Parties~~Parent, ~~Merger~~ Acquisition Sub, the Company or any of their respective Affiliates with respect to how they own, retain, conduct or operate all or any portion of their respective businesses or assets (clauses (A) through (D) shall be referred to as “Remedy Actions”). Notwithstanding anything to the contrary set forth in this Section 6.3, the Acquiring Parties and Merger Sub shall not be required to commit or agree to, and the Company shall not be permitted to commit or agree to without the consent of the Acquiring Parties, any such Remedy Action contemplated by clause (ii) above to the extent any such Remedy Action contemplated by clause (ii) above (x) is not conditioned upon the consummation of the transactions contemplated by this Agreement or (y) would require, or cause to be taken, (1) any sale, divestiture, licensing or other disposal of, or other action with respect to, any assets or businesses of QUALCOMM Technology Licensing, (2) any sale, divestiture, licensing or other disposal of any assets or businesses of the Arriver Business, or any other action with respect to any assets or businesses of the Arriver Business, that would materially diminish or materially interfere with the benefits that QUALCOMM reasonably expects to receive from its ownership of the Arriver Business, (3) any sale or divestiture of any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a fair market value (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the economic impact determined with respect to any actions taken pursuant to the following clause (4), or (4) any other action (excluding sales or divestitures) with respect to any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a net negative economic impact (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the fair market value determined with respect to any actions taken pursuant to the foregoing clause (3)assets. (dc) 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 reasonably cooperate in good faith 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 substantive meetings or discussions 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 either party and any Governmental Authority with respect to this Agreement; provided that, notwithstanding anything in this Agreement to the contrary, the Acquiring Parties shall determine the strategy to be pursued for obtaining and lead the effort to obtain all necessary actions or nonactions and consents from Governmental Authorities, including any related litigation and Remedy Actions, pursuant to any Antitrust Law in connection with the transactions contemplated by this Agreement, and the Company shall take all reasonably requested actions to support the Acquiring Parties in connection therewith. Notwithstanding anything to the contrary contained in this Agreement, the Acquiring Parties shall consult with the Company and consider in good faith the views of the Company in connection with all material communications with a Governmental Authority and strategy regarding the Antitrust Laws. (e) The Company and ~~the Acquiring Parties~~Parent, in their respective sole and absolute discretion, may (x) redact materials as necessary to comply with contractual arrangements address reasonable attorney client or other privilege or confidentiality concerns, exclude any information relating to Company valuation and similar matters relating to the transactions contemplated herein, and (y) designate any competitively sensitive material as “Outside Counsel Only Material” such that such materials and the information contained therein shall be given only to the outside counsel of the recipient and will not be disclosed to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel. (f) The Acquiring Parties and Merger Sub shall not, and shall not permit any of their controlled Affiliates to, (i) acquire or agree to acquire by merging or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests or (ii) take or agree to take any other action (including entering into or agreeing to enter into any material license, joint venture or other transaction), in each case that would reasonably be expected to (A) impose any material delay in the obtaining of, or increase the risk materially of not obtaining, approval from, or avoiding an Action by, any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period, (B) materially increase the risk of any Governmental Authority entering an Order prohibiting the consummation of the transactions contemplated by this Agreement or (C) otherwise materially delay or prevent the consummation of the transactions contemplated by this Agreement.

Appears in 1 contract

Samples: Merger Agreement (Charah Solutions, Inc.)

Appropriate Action; Consents; Filings. (a) In accordance with the terms and subject to the conditions of this ~~Agreement (including Section 6.5)~~Agreement, the parties hereto will use their respective reasonable best efforts ~~to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable~~ to consummate and make effective the transactions contemplated hereby and to cause the conditions to the Merger set forth in Article ~~VII~~ VI (Conditions to the Merger) to be satisfied as expeditiously as ~~practicable (and in any event at least five (5) Business Days prior to the Outside Date)~~possible, including using reasonable best efforts to accomplish the following: (i) the obtaining of all necessary ~~or advisable~~ actions or non-actions~~, waivers~~, Consents and approvals from Governmental Authorities necessary ~~or advisable~~ in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale~~ and the making of all necessary ~~or advisable~~ registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary ~~or advisable~~ to obtain an approval from, or to avoid any Action by, any Governmental Authority necessary in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale,~~ (ii) the obtaining of all other necessary consents, approvals or waivers from Third Parties (provided that none of the Company, the Acquiring Parties or Merger Sub shall be required to make or agree to make any payment or accept any material conditions or obligations with respect thereto, except as expressly set forth in Section 6.10(c)), including in respect of the Non-Arriver Extraction and the Arriver SaleParties, (iii) the defending of any ~~Actions~~lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale~~ including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed and (iv) the execution and delivery of any additional instruments 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 promptly (~~and,~~ A) and in ~~the case of filings required under the HSR Act, in no~~ any event ~~later than fifteen~~ within ten (1510) Business Days ~~following~~ of the date hereof~~) (i)~~ , make ~~and not withdraw any applicable~~ its filings under the HSR Act, and thereafter promptly (and in any event within fifteen (15) Business Days of the date hereof) make any other applications and filings required ~~or advisable under~~ to be made with the ~~Antitrust Laws or Investment Screening Laws of the jurisdictions~~ Governmental Authorities set forth on ~~Section 6.3(a) of the Company Disclosure Letter~~ Schedule I under applicable Antitrust Laws with respect to the transactions contemplated hereby, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale,~~ (iiB) use its respective reasonable best efforts to comply at the earliest ~~practicable~~ possible date with any request under the HSR Act for additional information (including responding to any “second request”), documents or other materials received by such party from the U.S. Federal Trade Commission, the Antitrust Division of the U.S. Department of Justice or ~~from~~ by any other Governmental Authority under any Antitrust ~~Laws or Investment Screening~~ Laws in respect of any such filings with respect to the transactions contemplated hereby, including the ~~Merger, the Non-Arriver Extraction and the Arriver Sale~~ Merger and (~~iii~~C) act in good faith and ~~reasonably~~ cooperate with ~~each~~ the other party in connection with any such filings (including, if requested by ~~another~~ the other party, ~~considering in good faith~~ to duly consider all reasonable additions, deletions or changes suggested by the other party in connection therewith) and in connection with resolving any investigation or other inquiry of such agency or other Governmental Authority under any Antitrust ~~Laws and Investment Screening~~ Laws. In taking the foregoing actions, each of the Company and ~~the Acquiring Parties~~ Parent shall act reasonably and as promptly and expeditiously as ~~practicable~~possible. Notwithstanding anything in this Agreement to the contrary, obtaining any ~~Third Party Consents~~ consents, approvals or waivers from Third Parties pursuant to Section ~~6.3(a)(ii~~5.3(a)(ii) above or ~~otherwise, including any Consents required in connection with the Non-Arriver Extraction or the Arriver Sale,~~ otherwise shall not be a condition to the obligations of any party to consummate the Merger. (cb) Without limiting anything in this Section ~~6.3 (i)~~ 5.3, none of the parties hereto or their respective Affiliates shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby, except with the prior written consent of the other parties hereto and (ii) the Acquiring Parties and Merger Sub agree to take (and to cause their Affiliates to take) promptly any and all steps necessary or reasonably advisable or as may be required by any Governmental Authority to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws or Investment Screening Laws that may be required by any Governmental Authority so as to enable the parties to consummate the transactions contemplated by this Agreement, including the Merger, the Non-Arriver Extraction and the Arriver Sale as expeditiously as possible (and in any event at least five (5) Business Days prior to the Outside Date), including committing to and effecting, by consent decree, hold separate order, trust or otherwise, (A) selling, divesting, licensing or otherwise disposing of, or holding separate and agreeing to sell, divest, license or otherwise dispose of, any assets of the Company, the Acquiring Parties, Merger Sub or their respective Affiliates, (B) terminating, amending or assigning existing relationships and contractual rights and obligations, (C) requiring the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates to grant any right or commercial or other accommodation to, or enter into any material commercial contractual or other commercial relationship with, any Third Party and (D) imposing limitations on the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates with respect to how they own, retain, conduct or operate all or any portion of their respective businesses or assets (clauses (A) through (D) shall be referred to as “Remedy Actions”). Notwithstanding anything to the contrary set forth in this Section 6.3, the Acquiring Parties and Merger Sub shall not be required to commit or agree to, and the Company shall not be permitted to commit or agree to without the consent of the Acquiring Parties, any such Remedy Action contemplated by clause (ii) above to the extent any such Remedy Action contemplated by clause (ii) above (x) is not conditioned upon the consummation of the transactions contemplated by this Agreement or (y) would require, or cause to be taken, (1) any sale, divestiture, licensing or other disposal of, or other action with respect to, any assets or businesses of QUALCOMM Technology Licensing, (2) any sale, divestiture, licensing or other disposal of any assets or businesses of the Arriver Business, or any other action with respect to any assets or businesses of the Arriver Business, that would materially diminish or materially interfere with the benefits that QUALCOMM reasonably expects to receive from its ownership of the Arriver Business, (3) any sale or divestiture of any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a fair market value (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the economic impact determined with respect to any actions taken pursuant to the following clause (4), or (4) any other action (excluding sales or divestitures) with respect to any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a net negative economic impact (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the fair market value determined with respect to any actions taken pursuant to the foregoing clause (3)hereto. (dc) 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 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 substantive meetings or discussions 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 either party and any Governmental Authority with respect to this Agreement; provided that, notwithstanding anything in this Agreement to the contrary, the Acquiring Parties shall determine the strategy to be pursued for obtaining and lead the effort to obtain all necessary actions or nonactions and consents from Governmental Authorities, including any related litigation and Remedy Actions, pursuant to any Antitrust Law in connection with the transactions contemplated by this Agreement, and the Company shall take all reasonably requested actions to support the Acquiring Parties in connection therewith. Notwithstanding anything to the contrary contained in this Agreement, the Acquiring Parties shall consult with the Company and consider in good faith the views of the Company in connection with all material communications with a Governmental Authority and strategy regarding the Antitrust Laws. (e) The Company and ~~the Acquiring Parties~~Parent, in their respective sole and absolute discretion, may (x) redact materials as necessary to comply with contractual arrangements address reasonable attorney client or other privilege or confidentiality concerns, exclude any information relating to Company valuation and similar matters relating to the transactions contemplated herein, and (y) designate any competitively sensitive material as “Outside Counsel Only Material” such that such materials and the information contained therein shall be given only to the outside counsel of the recipient and will not be disclosed to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel. (fd) ~~The Acquiring Parties~~ Parent and ~~Merger~~ Acquisition Sub shall not, and shall not permit any of their ~~controlled~~ Affiliates to, (i) acquire or agree to acquire by merging or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests or (ii) take or agree to take any other action (including entering into or agreeing to enter into any material license, joint venture or other transaction), in each case that would ~~reasonably be expected to~~ (A) impose any ~~material~~ delay in the obtaining of, or increase the risk ~~materially~~ of not obtaining, approval from, or avoiding an Action by, any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting ~~period~~period under Antitrust Laws, (B) ~~materially~~ increase the risk of any Governmental Authority entering an Order prohibiting the consummation of the transactions contemplated by this Agreement or (C) otherwise ~~materially~~ delay or prevent the consummation of the transactions contemplated by this Agreement.

Appears in 1 contract

Samples: Merger Agreement (RR Donnelley & Sons Co)

Appropriate Action; Consents; Filings. (a) ~~In accordance with~~ Subject to the other terms and ~~subject to the~~ conditions of this ~~Agreement (including Section 6.5)~~Agreement, the parties hereto will use their respective reasonable best efforts ~~to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable~~ to consummate and make effective the transactions contemplated hereby and to cause the conditions to the Offer and the Merger set forth in Annex I and Article VII to be ~~satisfied as expeditiously as practicable (and in any event at least five (5) Business Days prior to the Outside Date)~~satisfied, including ~~using reasonable best efforts to accomplish the following:~~ (i) the obtaining of all necessary ~~or advisable~~ actions or ~~non-actions~~nonactions, ~~waivers, Consents~~ consents and approvals from Governmental Authorities or other persons necessary ~~or advisable~~ in connection with the consummation of the transactions contemplated by this Agreement, including the Offer and the Merger, ~~the Non-Arriver Extraction and the Arriver Sale~~ and the making of all necessary ~~or advisable~~ registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary ~~or advisable~~ to obtain an approval from, or to avoid ~~any Action~~ an action or proceeding by, any Governmental Authority or other persons necessary in connection with the consummation of the transactions contemplated by this Agreement, including the ~~Merger, the Non-Arriver Extraction~~ Offer and the ~~Arriver Sale~~Merger, (ii) the obtaining of all other necessary consents, approvals or waivers from Third Parties (provided that none of the Company, the Acquiring Parties or Merger Sub shall be required to make or agree to make any payment or accept any material conditions or obligations with respect thereto, except as expressly set forth in Section 6.10(c)), including in respect of the Non-Arriver Extraction and the Arriver Sale, (iii) the defending of any ~~Actions~~lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the ~~transactions contemplated hereby~~transactions, including the Offer and the Merger, performed or consummated by such party in accordance with the ~~Non-Arriver Extraction and the Arriver Sale~~ 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~~ reversed, and (iviii) the execution and delivery of any additional instruments necessary to consummate the Offer and 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)~~ ; provided, however, the parties hereto understand and agree that all obligations of the Company, Parent and Acquisition Sub relating to the Financing shall be governed exclusively by Section 6.12 and Section 6.13, and not this Section 6.4. Each of the parties hereto shall promptly (~~and, in the case of filings required under the HSR Act,~~ and in no event later than ~~fifteen~~ ten (1510) Business Days following the date ~~hereof) (i~~that this Agreement is executed) make and not withdraw ~~any applicable filings under the HSR Act~~its respective filings, and thereafter make any other ~~applications and filings~~ required ~~or advisable~~ submissions under the ~~Antitrust Laws or Investment Screening Laws of the jurisdictions set forth on Section 6.3(a) of the Company Disclosure Letter~~ HSR Act with respect to the transactions contemplated hereby, including the ~~Merger~~Offer, the ~~Non-Arriver Extraction~~ Merger and the ~~Arriver Sale~~Top-Up Option. Subject to the terms and conditions set forth in the Activant Merger Agreement, Parent shall perform (and shall cause Activant Acquisition Sub to perform) all of their respective obligations under Activant Merger Agreement and Parent shall use (and shall cause Activant Acquisition Sub to use) its reasonable best efforts to (i) take all actions necessary or appropriate to consummate as promptly as reasonably practical the transactions contemplated by the Activant Merger Agreement, and (ii) ~~comply~~ cause the fulfillment at the earliest practicable date with any request under the HSR Act for additional information (including responding to any “second request”), documents or other materials received by such party from the U.S. Federal Trade Commission, the Antitrust Division of all of the ~~U.S. Department of Justice or from any other Governmental Authority under any Antitrust Laws or Investment Screening Laws in respect of any such filings with respect~~ conditions to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale and (iii) act in good faith and reasonably cooperate with each other party in connection with any such filings (including, if requested by another party, considering in good faith all reasonable additions, deletions or changes suggested by the other party in connection therewith) and in connection with resolving any investigation or other inquiry of such agency or other Governmental Authority under any Antitrust Laws and Investment Screening Laws. In taking the foregoing actions, each of the Company and the Acquiring Parties shall act reasonably and as promptly as practicable. Notwithstanding anything in this Agreement to the contrary, obtaining any Third Party Consents or waivers pursuant to Section 6.3(a)(ii) above or otherwise, including any Consents required in connection with the Non-Arriver Extraction or the Arriver Sale, shall not be a condition to the its obligations ~~of any party~~ to consummate the Activant Merger. (cb) ~~Without limiting anything in this Section 6.3 (i) none~~ In furtherance of the ~~parties hereto or their respective Affiliates shall extend any waiting period or comparable period under~~ foregoing, Parent, Acquisition Sub and the HSR Act or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby, except with the prior written consent of the other parties hereto and (ii) the Acquiring Parties and Merger Sub Company agree to ~~take~~ use reasonable best efforts (and to cause their ~~Affiliates~~ affiliates to ~~take~~use reasonable best efforts) ~~promptly any and all steps necessary or reasonably advisable or as may be required by any Governmental Authority~~ to avoid or eliminate each and every impediment and obtain all ~~Consents~~ consents under any Antitrust ~~Laws or Investment Screening~~ Laws that may be required by any foreign or U.S. federal, state or local Governmental ~~Authority~~ Authority, in each case with competent jurisdiction, so as to enable the parties to ~~consummate~~ close the transactions contemplated by this Agreement, including the ~~Merger~~Offer and the Merger (and, solely with respect to Parent, the ~~Non-Arriver Extraction and the Arriver Sale~~ Activant Merger), as ~~expeditiously~~ promptly as ~~possible (and in any event at least five (5) Business Days prior to the Outside Date)~~practicable, including committing to ~~and~~ or effecting, by consent decree, hold separate ~~order~~orders, ~~trust~~ trust, or otherwise, ~~(A) selling, divesting, licensing~~ the sale or ~~otherwise disposing~~ disposition of such assets or businesses as are required to be divested in order to avoid the entry of, or ~~holding separate and agreeing~~ to ~~sell, divest, license~~ effect the dissolution of or ~~otherwise dispose of~~vacate or lift, any ~~assets~~ Order, that would otherwise have the effect of preventing or materially delaying the consummation of the ~~Company~~Offer, the ~~Acquiring Parties~~Merger and the other transactions contemplated by this Agreement (including, Merger Sub or their respective Affiliates, (B) terminating, amending or assigning existing relationships and contractual rights and obligations, (C) requiring the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates to grant any right or commercial or other accommodation to, or enter into any material commercial contractual or other commercial relationship with, any Third Party and (D) imposing limitations on the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates solely with respect to ~~how they own~~Parent, ~~retain~~the Activant Merger). Further, ~~conduct~~ 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 ~~operate all~~ consent or approval of the Antitrust Division, the FTC or other foreign or U.S. Governmental Authority with respect to any Antitrust Laws, (y) no decree, judgment, injunction, temporary restraining order or any ~~portion~~ 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 ~~their respective businesses~~ the Offer or ~~assets~~ the Merger (~~clauses (A) through (D) shall be referred~~ and, solely with respect to ~~as “Remedy Actions”). Notwithstanding anything to the contrary set forth in this Section 6.3~~Parent, the ~~Acquiring Parties~~ Activant Merger) by the Termination Date. (c) Each of Parent and ~~Merger Sub~~ the Company shall ~~not be required~~ give (or shall cause its respective subsidiaries to ~~commit or agree to~~give) any notices to third parties, and Parent shall use, and cause each of its affiliates to use, its reasonable best efforts, and the Company shall use its reasonable best efforts to cooperate with Parent in its efforts, to obtain any third party consents not ~~be permitted to commit or agree to without the consent of the Acquiring Parties, any such Remedy Action contemplated~~ covered by ~~clause~~ paragraphs (iia) and (b) above that are necessary, proper or advisable to consummate the ~~extent any such Remedy Action contemplated by clause (ii) above (x) is not conditioned upon~~ Merger and/or the ~~consummation of~~ Activant Merger, including the transactions contemplated by this Agreement or (y) would require, or cause to be taken, (1) any sale, divestiture, licensing or other disposal of, or other action with respect to, any assets or businesses of QUALCOMM Technology Licensing, (2) any sale, divestiture, licensing or other disposal of any assets or businesses of the Arriver Business, or any other action with respect to any assets or businesses of the Arriver Business, that would materially diminish or materially interfere with the benefits that QUALCOMM reasonably expects to receive from its ownership of the Arriver Business, (3) any sale or divestiture of any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a fair market value (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount consents and notices set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the economic impact determined with respect to any actions taken pursuant to the following clause (4), or (4) any other action (excluding sales or divestitures) with respect to any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a net negative economic impact (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the fair market value determined with respect to any actions taken pursuant to the foregoing clause (3). (d) Schedule 6.4 hereto. 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 inquiry from a Governmental Authority, including ~~(i) promptly~~ immediately 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 substantive meetings or discussions 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 either party and any Governmental Authority with respect to this Agreement~~; provided that~~. Notwithstanding the foregoing, ~~notwithstanding anything in~~ obtaining any third party consents pursuant to this ~~Agreement~~ Section 6.4(c) shall not be considered a condition to the contrary, the Acquiring Parties shall determine the strategy to be pursued for obtaining and lead the effort to obtain all necessary actions or nonactions and consents from Governmental Authorities, including any related litigation and Remedy Actions, pursuant to any Antitrust Law in connection with the transactions contemplated by this Agreement, and the Company shall take all reasonably requested actions to support the Acquiring Parties in connection therewith. Notwithstanding anything to the contrary contained in this Agreement, the Acquiring Parties shall consult with the Company and consider in good faith the views obligations of the ~~Company in connection with all material communications with a Governmental Authority~~ Parent and strategy regarding the Antitrust Laws. (e) The Company and the Acquiring Parties, in their respective sole and absolute discretion, may (x) redact materials as necessary to comply with contractual arrangements address reasonable attorney client or other privilege or confidentiality concerns, exclude any information relating to Company valuation and similar matters relating to the transactions contemplated herein, and (y) designate any competitively sensitive material as “Outside Counsel Only Material” such that such materials and the information contained therein shall be given only to the outside counsel of the recipient and will not be disclosed to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel. (f) The Acquiring Parties and Merger Acquisition Sub shall not, and shall not permit any of their controlled Affiliates to, (i) acquire or agree to acquire by merging or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests or (ii) take or agree to take any other action (including entering into or agreeing to enter into any material license, joint venture or other transaction), in each case that would reasonably be expected to (A) impose any material delay in the obtaining of, or increase the risk materially of not obtaining, approval from, or avoiding an Action by, any Governmental Authority necessary to consummate the ~~transactions contemplated by this Agreement~~ Offer or the expiration or termination of any applicable waiting period, (B) materially increase the risk of any Governmental Authority entering an Order prohibiting the consummation of the transactions contemplated by this Agreement or (C) otherwise materially delay or prevent the consummation of the transactions contemplated by this AgreementMerger.

Appears in 1 contract

Samples: Merger Agreement (Epicor Software Corp)

Appropriate Action; Consents; Filings. (a) ~~In accordance with~~ Subject to the other terms and ~~subject to the~~ conditions of this ~~Agreement (including Section 6.5)~~Agreement, the parties hereto will use their respective reasonable best efforts to ~~take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to~~ consummate and make effective the transactions contemplated ~~hereby and to cause~~ hereby, including (i) causing, in the case of the Company, the conditions ~~to the Merger~~ set forth in ~~Article VII~~ Annex I, Section 6.1 and Section 6.2 to be satisfied ~~as expeditiously as practicable~~ and, in the case of Parent, the conditions set forth in Section 6.1 and Section 6.3 to be satisfied, (~~and in any event at least five (5~~ii) ~~Business Days prior to the Outside Date), including using reasonable best efforts to accomplish the following: (i) the~~ obtaining of all necessary ~~or advisable~~ actions or ~~non-actions~~nonactions, ~~waivers, Consents~~ consents and approvals from Governmental Authorities or other persons necessary ~~or advisable~~ in connection with the consummation of the transactions contemplated by this Agreement, including the Offer and the Merger, ~~the Non-Arriver Extraction~~ and ~~the Arriver Sale and the~~ making of all necessary ~~or advisable~~ registrations and filings (including filings with Governmental Authorities, if any) and ~~the~~ taking of all ~~reasonable~~ steps as may be necessary ~~or advisable~~ to obtain an approval from, or to avoid ~~any Action~~ an action or proceeding by, any Governmental Authority or other persons necessary in connection with the consummation of the transactions contemplated by this Agreement, including the ~~Merger, the Non-Arriver Extraction~~ Offer and the Arriver Sale, (ii) the obtaining of all other necessary consents, approvals or waivers from Third Parties (provided that none of the Company, the Acquiring Parties or Merger Sub shall be required to make or agree to make any payment or accept any material conditions or obligations with respect thereto, except as expressly set forth in Section 6.10(c)), including in respect of the Non-Arriver Extraction and the Arriver SaleMerger, (iii) ~~the~~ defending of any ~~Actions~~lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the ~~transactions contemplated hereby~~transactions, including the Offer and the Merger, performed or consummated by such party in accordance with the ~~Non-Arriver Extraction and the Arriver Sale~~ 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~~ reversed, and (iv) the execution and delivery of any additional instruments necessary to consummate the Offer and 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 (A) as promptly as practicable (and, in ~~the case of filings required under the HSR Act~~any event, ~~in no event later than fifteen~~ within ten (1510) Business ~~Days~~ Days) following the date hereof~~) (i)~~ , make and not withdraw ~~any applicable~~ its respective filings under the HSR Act, and thereafter (I) make any other ~~applications and filings~~ required ~~or advisable~~ submission under the ~~Antitrust Laws or Investment Screening Laws of the jurisdictions set forth on Section 6.3(a) of the Company Disclosure Letter~~ HSR Act with respect to the transactions contemplated hereby, including the ~~Merger, the Non-Arriver Extraction~~ Offer and the ~~Arriver Sale~~Merger and (II) take all other actions necessary, ~~(ii) comply at~~ proper or advisable to cause the ~~earliest practicable date with any request~~ expiration or termination or the applicable waiting periods under the HSR Act ~~for additional information~~ as soon as possible and (~~including responding to~~ B) make any ~~“second request”)~~filings, ~~documents~~ notifications or ~~other materials received by such party from the U.S. Federal Trade Commission, the Antitrust Division of the U.S. Department of Justice or from~~ reports required under any other ~~Governmental Authority under any Antitrust Laws~~ applicable competition, merger control, antitrust or ~~Investment Screening Laws in respect~~ similar Law of any ~~such filings~~ jurisdiction with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale and (iii) act in good faith and reasonably cooperate with each other party in connection with any such filings (including, if requested by another party, considering in good faith all reasonable additions, deletions or changes suggested by the other party in connection therewith) and in connection with resolving any investigation or other inquiry of such agency or other Governmental Authority under any Antitrust Laws and Investment Screening Laws. In taking the foregoing actions, each of the Company and the Acquiring Parties shall act reasonably and hereby as promptly as practicable. ~~Notwithstanding anything in this Agreement to~~ Parent shall pay all filing fees and other charges for the ~~contrary, obtaining any Third Party Consents or waivers pursuant to Section 6.3(a)(ii) above or otherwise, including any Consents~~ filings required in connection with the Non-Arriver Extraction or the Arriver Sale, shall not be a condition to the obligations of any party to consummate the Merger. (c) Without limiting anything in this Section 6.3 (i) none of the parties hereto or their respective Affiliates shall extend any waiting period or comparable period under the HSR Act ~~or enter into any agreement with any Governmental Authority~~ by the Company and Parent. (b) In furtherance and not ~~to consummate the transactions contemplated hereby, except with the prior written consent~~ in limitation of the ~~other parties hereto and (ii) the Acquiring Parties~~ provisions of Section 5.4(a), Parent and Merger Sub ~~agree to take (~~shall, and to shall cause their ~~Affiliates to take)~~ affiliates to, promptly take any and all steps necessary to avoid, eliminate or ~~reasonably advisable or as may be required by any Governmental Authority to avoid or eliminate~~ resolve each and every impediment and obtain all ~~Consents~~ clearances, consents, approvals and waivers under any Antitrust ~~Laws or Investment Screening~~ Laws that may be required by any Governmental ~~Authority~~ Authority, in each case, with competent jurisdiction, so as to enable the parties to ~~consummate~~ close the transactions contemplated by this Agreement, including the Offer and the Merger, ~~the Non-Arriver Extraction and the Arriver Sale~~ as ~~expeditiously~~ promptly as ~~possible~~ practicable (~~and~~ and, in any ~~event at least~~ event, no later than five (5) Business Days prior to the ~~Outside~~ Termination Date), including (i) proposing, negotiating, offering to commit and effect (and if such offer is accepted, committing to and effecting), by Order, consent decree, hold separate order, ~~trust~~ trust, or otherwise, ~~(A) selling~~the sale, ~~divesting~~divestiture, ~~licensing~~ license, disposition or ~~otherwise disposing of,~~ hold separate of such assets or ~~holding separate and agreeing to sell, divest, license or otherwise dispose of, any assets~~ businesses of the Company, the Acquiring Parties, Merger Sub or their respective Affiliates, (B) terminating, amending or assigning existing relationships and contractual rights and obligations, (C) requiring the Acquiring PartiesParent, Merger Sub, the Company or ~~any of~~ the Surviving Corporation, or their respective ~~Affiliates~~ subsidiaries or affiliates, or otherwise offering to ~~grant~~ take or offering to commit to take any ~~right~~ action (including any action that limits its freedom of action, ownership or ~~commercial or other accommodation~~ control with respect to, or ~~enter into any material commercial contractual~~ its ability to retain or ~~other commercial relationship with~~hold, any ~~Third Party and (D) imposing limitations on~~ of the ~~Acquiring Parties~~businesses, assets, product lines, properties or services of Parent, Merger Sub, the Company or the Surviving Corporation, or their respective subsidiaries or affiliates) to the extent legally permissible, and if the offer is accepted, taking or committing to take such action; (ii) terminating, relinquishing, modifying or waiving existing relationships, ventures, contractual rights, obligations or other arrangements of Parent, Merger Sub, the Company or the Surviving Corporation, or their respective subsidiaries or affiliates; (iii) creating any relationships, ventures, contractual rights, obligations or other arrangements of Parent, Merger Sub, the Company or the Surviving Corporation, or their respective subsidiaries or affiliates; and (iv) entering or offering to enter into agreements and stipulating to the entry of an Order or filing appropriate applications with any Governmental Authority in connection with any of ~~their respective Affiliates with respect to how they own, retain, conduct or operate all or any portion of their respective businesses or assets (~~the actions contemplated by the foregoing clauses (Ai) through (Diii) ~~shall be referred to as “Remedy Actions”). Notwithstanding anything to the contrary set forth in this Section 6.3~~(provided, ~~the Acquiring Parties and Merger Sub shall not be required to commit or agree to, and~~ that the Company shall not be ~~permitted~~ obligated to ~~commit or agree to without the consent of the Acquiring Parties,~~ take any such ~~Remedy Action contemplated by clause (ii) above to~~ action unless the ~~extent any~~ taking of such ~~Remedy Action contemplated by clause (ii) above (x)~~ action is ~~not~~ expressly conditioned upon the consummation of the Offer, the Merger and the other transactions contemplated hereby), in each case, as may be necessary, required or advisable in order to obtain clearance under the HSR Act or other Antitrust Laws, to avoid the entry of, or to effect the dissolution of or to vacate or lift, any Order (whether temporary, preliminary or permanent) that would otherwise have the effect of restraining, preventing or delaying the consummation of the Offer, the Merger or the other transactions contemplated hereby, or to avoid the commencement of any action or proceeding that seeks to prohibit the Offer, the Merger or any other transaction contemplated by this ~~Agreement~~ Agreement. In the event that any Governmental Authority requires the divestiture or ~~(y) would require~~the holding separate by Parent, Merger Sub or ~~cause to be taken, (1)~~ any ~~sale, divestiture, licensing or other disposal of, or other action with respect to, any assets or businesses~~ of ~~QUALCOMM Technology Licensing, (2) any sale, divestiture, licensing or other disposal~~ their affiliates of any assets or ~~businesses of~~ businesses, no adjustment shall be made to the ~~Arriver Business~~Merger Consideration and Parent, Merger Sub and their affiliates shall be required to divest such assets and businesses, or ~~any other action with respect to any assets or businesses of~~ hold them separate, as the ~~Arriver Business~~case may be, ~~that would materially diminish or materially interfere with~~ following the benefits that QUALCOMM reasonably expects to receive from its ownership of the Arriver Business, (3) any sale or divestiture of any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a fair market value (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the economic impact determined with respect to any actions taken pursuant to the following clause (4), or (4) any other action (excluding sales or divestitures) with respect to any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a net negative economic impact (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the fair market value determined with respect to any actions taken pursuant to the foregoing clause (3)Merger Closing. (dc) Each of Parent, Merger Sub and the Company shall give (or shall cause its respective subsidiaries to give) any notices to third parties, and Parent and Merger Sub shall use their respective reasonable best efforts, and the Company shall use its reasonable best efforts to cooperate with Parent in its efforts, to obtain any Third Party consents not covered by Section 5.4(a) and Section 5.4(b) that are necessary, proper or advisable to consummate the Merger; provided, however, that Parent and Merger Sub shall promptly reimburse the Company for any reasonable expenses and costs incurred in connection with the Company’s obligations under this Section 5.4(c). 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 inquiry from a Governmental Authority, including ~~(i) promptly~~ immediately 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 substantive meetings or discussions 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 either party and any Governmental Authority with respect to this Agreement~~; provided that~~, ~~notwithstanding anything~~ in each case, other than as prohibited by applicable Law and except for so-called 4(c) documents and other documents customarily withheld. Notwithstanding the foregoing, obtaining any Third Party consents pursuant to this ~~Agreement~~ Section 5.4(c) shall not, in and of itself, be considered a condition to the ~~contrary,~~ obligations of the ~~Acquiring Parties shall determine~~ Parent and Merger Sub to consummate the ~~strategy to be pursued for obtaining and lead~~ Offer or the ~~effort to obtain all necessary actions~~ Merger. (d) Notwithstanding the provisions of this Section 5.4 or ~~nonactions and consents from Governmental Authorities, including~~ any related litigation and Remedy Actions, pursuant to any Antitrust Law in connection with the transactions contemplated by this Agreement, and the Company shall take all reasonably requested actions to support the Acquiring Parties in connection therewith. Notwithstanding anything to the contrary contained in other provision of this Agreement, the ~~Acquiring Parties shall consult with the Company and consider in good faith the views~~ obligation of the Company in connection with all material communications with a Governmental Authority and strategy regarding the Antitrust Laws. (e) The Company and the Acquiring Parties, in their respective sole and absolute discretion, may (x) redact materials as necessary to comply with contractual arrangements address reasonable attorney client or other privilege or confidentiality concerns, exclude any information relating to Company valuation and similar matters relating to the transactions contemplated herein, and (y) designate any competitively sensitive material as “Outside Counsel Only Material” such that such materials and the information contained therein shall be given only to the outside counsel of the recipient and will not be disclosed to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel. (f) The Acquiring Parties Parent and Merger Sub to obtain the Financing shall not, and shall not permit any of their controlled Affiliates to, (i) acquire or agree to acquire by merging or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests or (ii) take or agree to take any other action (including entering into or agreeing to enter into any material license, joint venture or other transaction), be solely as set forth in each case that would reasonably be expected to (A) impose any material delay in the obtaining of, or increase the risk materially of not obtaining, approval from, or avoiding an Action by, any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period, (B) materially increase the risk of any Governmental Authority entering an Order prohibiting the consummation of the transactions contemplated by this Agreement or (C) otherwise materially delay or prevent the consummation of the transactions contemplated by this AgreementSection 5.12.

Appears in 1 contract

Samples: Merger Agreement (MModal Inc.)

Appropriate Action; Consents; Filings. (a) ~~In accordance with~~ Subject to the terms and ~~subject to the~~ conditions of this Agreement (including the limitations set forth in Section ~~6.5~~6.6), the parties hereto will use their respective reasonable best efforts ~~to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable~~ to consummate and make effective the transactions contemplated hereby and to cause the conditions to the First Merger set forth in Article VII to be ~~satisfied as expeditiously as practicable (and in any event at least five (5) Business Days prior to the Outside Date)~~satisfied, including using reasonable best efforts to accomplish the following: (i) the obtaining of all necessary ~~or advisable~~ actions or non-actions, ~~waivers, Consents~~ consents and approvals from Governmental Authorities or other Persons necessary ~~or advisable~~ in connection with the consummation of the transactions contemplated ~~by this Agreement~~hereby, including the First Merger, ~~the Non-Arriver Extraction and the Arriver Sale~~ and the making of all necessary ~~or advisable~~ registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary ~~or advisable~~ to obtain an approval from, or to avoid ~~any Action~~ a Proceeding by, any Governmental Authority or other Persons necessary in connection with the consummation of the transactions contemplated ~~by this Agreement~~hereby, including the First Merger~~, the Non-Arriver Extraction and the Arriver Sale,~~ ; (ii) the obtaining of all other necessary consents, approvals or waivers from Third Parties (provided that none of the Company, the Acquiring Parties or Merger Sub shall be required to make or agree to make any payment or accept any material conditions or obligations with respect thereto, except as expressly set forth in Section 6.10(c)), including in respect of the Non-Arriver Extraction and the Arriver Sale, (iii) the defending of any ~~Actions~~lawsuits or other legal Proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including the First Merger, performed or consummated by such party in accordance with the ~~Non-Arriver Extraction and the Arriver Sale~~ 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~~ reversed; and (iviii) the execution and delivery of any additional instruments reasonably necessary to consummate the First 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~~ . Without limiting the generality of the foregoing, each of the parties hereto shall promptly ~~(and, in the case of filings required under the HSR Act, in no event later than fifteen (15) Business Days following the date hereof) (i)~~ make and not withdraw ~~any applicable filings~~ a filing under the HSR Act, and thereafter make any other applications and filings ~~required or advisable under the Antitrust Laws or Investment Screening Laws of the jurisdictions set forth on Section 6.3(a) of~~ as reasonably determined by the Company ~~Disclosure Letter~~ and Parent are required under other applicable United States or foreign competition, antitrust, merger control or investment Laws (“Antitrust Laws”) with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale, (ii) comply at the earliest practicable date with any request under the HSR Act for additional information (including responding to any “second request”), documents or other materials received by such party from the U.S. Federal Trade Commission, the Antitrust Division of the U.S. Department of Justice or from any other Governmental Authority under any Antitrust Laws or Investment Screening Laws in respect of any such filings with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale and (iii) act in good faith and reasonably cooperate with each other party in connection with any such filings (including, if requested by another party, considering in good faith all reasonable additions, deletions or changes suggested by the other party in connection therewith) and in connection with resolving any investigation or other inquiry of such agency or other Governmental Authority under any Antitrust Laws and Investment Screening Laws. In taking the foregoing actions, each of the Company and the Acquiring Parties shall act reasonably and hereby as promptly as practicable, but in no event later than as required by Law. ~~Notwithstanding anything in this Agreement to~~ Parent shall pay all filing fees and other charges for the ~~contrary, obtaining~~ filings required under any ~~Third Party Consents or waivers pursuant to Section 6.3(a)(ii) above or otherwise, including any Consents required in connection with~~ Antitrust Law by the ~~Non-Arriver Extraction or the Arriver Sale, shall not be a condition to the obligations of any party to consummate the Merger~~Company and Parent. (cb) Without limiting anything in this Section 6.3 (i) none of the parties hereto or their respective Affiliates shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated herebyParent, ~~except with the prior written consent of the other parties hereto~~ Acquisition Sub and ~~(ii) the Acquiring Parties and Merger~~ Acquisition Sub 2 agree to take (and to cause their Affiliates to take) promptly any and all steps necessary ~~or reasonably advisable or as may be required by any Governmental Authority~~ to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws ~~or Investment Screening Laws~~ that may be required by any foreign or United States federal, state or local Governmental ~~Authority~~ Authority, in each case with competent jurisdiction, so as to enable the parties to consummate the transactions contemplated by this ~~Agreement, including the Merger, the Non-Arriver Extraction and the Arriver Sale~~ Agreement as ~~expeditiously~~ promptly as ~~possible (and in any event at least five (5) Business Days prior to the Outside Date)~~practicable, including committing to ~~and~~ or effecting, by consent decree, hold separate ~~order~~orders, ~~trust~~ trust, or otherwise, ~~(A) selling, divesting, licensing~~ the sale or ~~otherwise disposing~~ disposition of such assets or businesses as are required to be divested in order to avoid the entry of, or ~~holding separate and agreeing~~ to ~~sell, divest, license~~ effect the dissolution of or ~~otherwise dispose of~~vacate or lift, any ~~assets~~ Order, that would otherwise have the effect of ~~the Company, the Acquiring Parties, Merger Sub~~ preventing or their respective Affiliates, (B) terminating, amending or assigning existing relationships and contractual rights and obligations, (C) requiring the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates to grant any right or commercial or other accommodation to, or enter into any material commercial contractual or other commercial relationship with, any Third Party and (D) imposing limitations on the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates with respect to how they own, retain, conduct or operate all or any portion of their respective businesses or assets (clauses (A) through (D) shall be referred to as “Remedy Actions”). Notwithstanding anything to the contrary set forth in this Section 6.3, the Acquiring Parties and Merger Sub shall not be required to commit or agree to, and the Company shall not be permitted to commit or agree to without the consent of the Acquiring Parties, any such Remedy Action contemplated by clause (ii) above to the extent any such Remedy Action contemplated by clause (ii) above (x) is not conditioned upon materially delaying the consummation of the transactions contemplated by this ~~Agreement~~ 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 ~~(y) would require~~consent or approval of the Antitrust Division, ~~or cause to be taken, (1) any sale, divestiture, licensing or other disposal of~~the Federal Trade Commission, or other action with respect to, any assets or businesses of QUALCOMM Technology Licensing, (2) any sale, divestiture, licensing or other disposal of any assets or businesses of the Arriver Business, or any other action Governmental Authority with respect to any assets or businesses of the Arriver Business, that would materially diminish or materially interfere with the benefits that QUALCOMM reasonably expects to receive from its ownership of the Arriver BusinessAntitrust Laws, (3y) ~~any sale or divestiture of any assets or businesses of QUALCOMM~~ no decree, judgment, injunction, temporary restraining order or any ~~of its Subsidiaries, or~~ other Order in any Proceeding with respect to any ~~assets or businesses~~ Antitrust Laws, and (z) no other matter relating to any Antitrust Laws would preclude consummation of the ~~Company or its Subsidiaries~~First Merger by the Termination Date; provided, however, that ~~individually~~ notwithstanding anything in this Agreement to the contrary, nothing in this Section 6.4(b) or ~~in the aggregate~~any other provision of this Agreement shall require any of Parent , ~~have a fair market value (measured at the time~~ Acquisition Sub or Acquisition Sub 2, or any of ~~such request using customary valuation methodologies~~ their respective Affiliates, to agree or otherwise be ~~agreed~~ required to, take any action contemplated by ~~the parties hereto in good faith~~this Section 6.4(b), which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the economic impact determined with respect to any ~~actions taken pursuant to~~ of Parent, Acquisition Sub or Acquisition Sub 2’s respective Affiliates (including Crescent Capital Group or any affiliated investment funds or investment vehicles affiliated with, or managed or advised by, Crescent Capital Group or any portfolio company (as such term is commonly understood in the ~~following clause (4~~private equity industry) of Crescent Capital Group or its Affiliates), or ~~(4)~~ any interest therein, other ~~action (excluding sales or divestitures)~~ than with respect to ~~any assets or businesses of QUALCOMM or any of~~ the Company and its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a net negative economic impact (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the fair market value determined with respect to any actions taken pursuant to the foregoing clause (3). (dc) ~~Each~~ In connection with and without limiting the efforts referenced in this Section 6.4, 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~~Authority or in connection with any Proceeding initiated by a private party, including ~~(i) promptly~~ immediately 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~~ or in ~~any substantive meetings or discussions~~ connection with any ~~Governmental Authority~~Proceeding initiated by a private party, to ~~the extent not prohibited by such Governmental Authority~~ any other Person, and ~~(iv)~~ supplying each other with copies of all material correspondence, filings or communications between either party and any Governmental ~~Authority~~ Authority, or in connection with any Proceeding initiated by a private party, between either party and any other Person with respect to this Agreement~~; provided that~~. In addition, ~~notwithstanding anything~~ each of the parties hereto will give reasonable notice to and consult with the other in ~~this Agreement to the contrary~~advance of any meeting or conference with any Governmental Authority, ~~the Acquiring Parties shall determine the strategy to be pursued for obtaining and lead the effort to obtain all necessary actions~~ or ~~nonactions and consents from Governmental Authorities, including any related litigation and Remedy Actions, pursuant to any Antitrust Law~~ in connection with ~~the transactions contemplated~~ any Proceeding by ~~this Agreement~~a private party, with any other Person, and ~~the Company shall take all reasonably requested actions to support the Acquiring Parties in connection therewith. Notwithstanding anything~~ to the ~~contrary contained in this Agreement,~~ extent permitted by the ~~Acquiring Parties shall consult with the Company and consider in good faith the views of the Company in connection with all material communications with a~~ Governmental Authority and strategy regarding the Antitrust Laws. (e) The Company and the Acquiring Parties, in their respective sole and absolute discretion, may (x) redact materials as necessary to comply with contractual arrangements address reasonable attorney client or other ~~privilege~~ Person, give the other the opportunity to attend and participate in such meeting or confidentiality concerns, exclude any information relating to Company valuation and similar matters relating to the transactions contemplated herein, and (y) designate any competitively sensitive material as “Outside Counsel Only Material” such that such materials and the information contained therein shall be given only to the outside counsel of the recipient and will not be disclosed to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counselconference. (f) The Acquiring Parties and Merger Sub shall not, and shall not permit any of their controlled Affiliates to, (i) acquire or agree to acquire by merging or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests or (ii) take or agree to take any other action (including entering into or agreeing to enter into any material license, joint venture or other transaction), in each case that would reasonably be expected to (A) impose any material delay in the obtaining of, or increase the risk materially of not obtaining, approval from, or avoiding an Action by, any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period, (B) materially increase the risk of any Governmental Authority entering an Order prohibiting the consummation of the transactions contemplated by this Agreement or (C) otherwise materially delay or prevent the consummation of the transactions contemplated by this Agreement.

Appears in 1 contract

Samples: Merger Agreement (Crescent Capital BDC, Inc.)

Appropriate Action; Consents; Filings. (a) ~~In accordance with~~ Subject to the terms ~~and subject to the conditions~~ of this ~~Agreement (including Section 6.5)~~Agreement, the ~~parties hereto~~ Company and Parent will use their respective reasonable best efforts to (i) take, or cause to be taken, all ~~actions,~~ appropriate action and to do, or cause to be done, ~~and to assist and cooperate with the other parties in doing,~~ all things necessary, proper or advisable under applicable Law or otherwise to consummate and make effective the transactions contemplated hereby and to cause the conditions to the Merger set forth in Article VII to be satisfied as expeditiously as practicable (and in any event at least five (5) Business Days prior to the Outside Date), including using reasonable best efforts to accomplish the following: (i) the obtaining of all necessary or advisable actions or non-actions, waivers, Consents and approvals from Governmental Authorities necessary or advisable in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, the Non-Arriver Extraction and the Arriver Sale and the making of all necessary or advisable registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary or advisable to obtain an approval from, or to avoid any Action by, any Governmental Authority in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, the Non-Arriver Extraction and the Arriver Sale, (ii) the obtaining of all other necessary consents, approvals or waivers from Third Parties (provided that none of the Company, the Acquiring Parties or Merger Sub shall be required to make or agree to make any payment or accept any material conditions or obligations with respect thereto, except as expressly set forth in Section 6.10(c)), including in respect of the Non-Arriver Extraction and the Arriver Sale, (iii) the defending of any Actions, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed and (iv) the execution and delivery of any additional instruments necessary to consummate the Merger and any other transactions to be performed or consummated by such party in accordance with the terms of this Agreement and to carry out fully the purposes of this Agreement. (b) Each of the parties hereto shall promptly (and, in the case of filings required under the HSR Act, in no event later than fifteen (15) Business Days following the date hereof) (i) make and not withdraw any applicable filings under the HSR Act, and thereafter make any other applications and filings required or advisable under the Antitrust Laws or Investment Screening Laws of the jurisdictions set forth on Section 6.3(a) of the Company Disclosure Letter with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale, (ii) comply at the earliest practicable date with any request under the HSR Act for additional information (including responding to any “second request”), documents or other materials received by such party from the U.S. Federal Trade Commission, the Antitrust Division of the U.S. Department of Justice or from any other Governmental Authority under any Antitrust Laws or Investment Screening Laws in respect of any such filings with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale and (iii) act in good faith and reasonably cooperate with each other party in connection with any such filings (including, if requested by another party, considering in good faith all reasonable additions, deletions or changes suggested by the other party in connection therewith) and in connection with resolving any investigation or other inquiry of such agency or other Governmental Authority under any Antitrust Laws and Investment Screening Laws. In taking the foregoing actions, each of the Company and the Acquiring Parties shall act reasonably and as promptly as practicable. Notwithstanding anything in this Agreement to the contrary, obtaining any Third Party Consents or waivers pursuant to Section 6.3(a)(ii) above or otherwise, including any Consents required in connection with the Non-Arriver Extraction or the Arriver Sale, shall not be a condition to the obligations of any party to consummate the Merger. (c) Without limiting anything in this Section 6.3 (i) none of the parties hereto or their respective Affiliates shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby, except with the prior written consent of the other parties hereto practicable and (ii) ~~the Acquiring Parties and Merger Sub agree to take (and to cause their Affiliates to take) promptly any and all steps necessary or reasonably advisable or as may be required by~~ obtain from any Governmental ~~Authority~~ Entities any consents, licenses, permits, waivers, approvals, authorizations, confirmations, clearances, certificates, exemptions, registrations or orders required to ~~avoid~~ be obtained by Parent or eliminate each and every impediment and obtain all Consents under any Antitrust Laws or Investment Screening Laws that may be required by any Governmental Authority so as to enable the parties to consummate the transactions contemplated by this Agreement, including the Merger, the Non-Arriver Extraction and the Arriver Sale as expeditiously as possible (and in any event at least five (5) Business Days prior to the Outside Date), including committing to and effecting, by consent decree, hold separate order, trust or otherwise, (A) selling, divesting, licensing or otherwise disposing of, or holding separate and agreeing to sell, divest, license or otherwise dispose of, any assets of the Company, the Acquiring Parties, Merger Sub or their respective Affiliates, (B) terminating, amending or assigning existing relationships and contractual rights and obligations, (C) requiring the Acquiring Parties, Merger Sub, the Company or any of their respective ~~Affiliates to grant any right or commercial or other accommodation to~~Subsidiaries, or ~~enter into~~ to avoid any ~~material commercial contractual~~ action or ~~other commercial relationship with~~Proceeding by any Governmental Entity (including those in connection with the HSR Act), ~~any Third Party~~ in connection with the authorization, execution and ~~(D) imposing limitations on the Acquiring Parties, Merger Sub, the Company or any~~ delivery of their respective Affiliates with respect to how they own, retain, conduct or operate all or any portion of their respective businesses or assets (clauses (A) through (D) shall be referred to as “Remedy Actions”). Notwithstanding anything to the contrary set forth in this ~~Section 6.3, the Acquiring Parties~~ Agreement and Merger Sub shall not be required to commit or agree to, and the Company shall not be permitted to commit or agree to without the consent of the Acquiring Parties, any such Remedy Action contemplated by clause (ii) above to the extent any such Remedy Action contemplated by clause (ii) above (x) is not conditioned upon the consummation of the transactions contemplated by herein, including the Merger. (b) In furtherance and not in limitation of Section 5.5(a), each party agrees to (i) file with the FTC and DOJ a Notification and Report Form relating to this Agreement and the transactions contemplated hereby as required by the HSR Act on or before January 8, 2024 (~~y) would require,~~ unless a later date is mutually agreed between the parties); provided that in the event that the FTC or cause to be taken, (1) any sale, divestiture, licensing or other disposal of, or other action with respect to, any assets or businesses of QUALCOMM Technology Licensing, (2) any sale, divestiture, licensing or other disposal of any assets or businesses the Antitrust Division of the ~~Arriver Business~~DOJ is closed or not accepting such filings under the HSR Act (a “Government Closure”) on January 8, 2024, such time period will be extended day-for-day for each Business Day the Government Closure is in effect, and (ii) make any appropriate filings, if necessary or ~~any~~ advisable, pursuant to other ~~action~~ applicable Competition Laws with respect to ~~any assets or businesses~~ the Merger as promptly as reasonably practicable. Each of Parent, Merger Sub and the ~~Arriver Business, that would materially diminish or materially interfere~~ Company will (i) cooperate and coordinate with the ~~benefits that QUALCOMM reasonably expects to receive from its ownership of~~ other in the ~~Arriver Business, (3) any sale or divestiture~~ making of any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a fair market value (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the economic impact determined with respect to any actions taken pursuant to the following clause (4), or (4) any other action (excluding sales or divestitures) with respect to any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a net negative economic impact (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the fair market value determined with respect to any actions taken pursuant to the foregoing clause (3). (d) 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~~ that are required to be made under any ~~inquiry from a Governmental Authority, including (i) promptly informing the other party of such inquiry, (ii) consulting in advance before making any presentations~~ applicable Laws or ~~submissions~~ requested to ~~a Governmental Authority, (iii) giving the other party the opportunity to attend and participate in any substantive meetings or discussions with~~ be made by 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 either party and any Governmental Authority with respect to this Agreement; provided that, notwithstanding anything in this Agreement to the contrary, the Acquiring Parties shall determine the strategy to be pursued for obtaining and lead the effort to obtain all necessary actions or nonactions and consents from Governmental Authorities, including any related litigation and Remedy Actions, pursuant to any Antitrust Law Entity in connection with the transactions contemplated by this Agreement, (ii) supply the other parties or their 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 DOJ or other Governmental Entities in which any such filings or submissions are made as promptly as reasonably practicable, and (iv) use their respective reasonable best efforts to cause the expiration or termination of the applicable waiting periods under any applicable Competition Laws as soon as reasonably practicable following the date of this Agreement (and prior to the Outside Date) (as may be extended pursuant to Section 7.1(e)). Without limiting the generality of the foregoing, both Parent and Company (and their respective Subsidiaries and Affiliates) shall contest, defend and appeal any Proceedings brought by a Governmental Entity, whether judicial or administrative, challenging or seeking to restrain or prohibit the consummation of the Merger or seeking to compel any divestiture by Parent or the Company or any of their respective Subsidiaries of shares of capital stock or of any business, assets or property, or to impose any limitation on the ability of any of them to conduct their businesses or to own or exercise control of such assets, properties or stock to avoid or eliminate any impediment under the HSR Act, Competition Law, or other applicable Law. (c) In furtherance and not in limitation of Section 5.5(a), each party agrees to make any appropriate filings, if necessary or advisable, pursuant to any other applicable Laws with respect to the Merger as promptly as reasonably practicable. Each of Parent, Merger Sub, and the Company ~~shall take all reasonably~~ will (i) cooperate and coordinate with the other in the making of any filings, registrations, notices, applications, submissions, information or documentation that are required to be made or advisable under any other applicable Laws or requested ~~actions~~ to ~~support the Acquiring Parties~~ be made by any Governmental Entity in connection ~~therewith~~with the transactions contemplated by this Agreement, including but not limited to, with the FAA, the DOT under 14 C.F.R. § 204.5, 49 U.S.C. §§ 40109, 41105, and 41110, and the FCC, (ii) supply the other parties or their outside counsel with any information that may be required or requested by any Governmental Entity in connection with such filings, registrations, notices, applications, submissions, information or documentation, (iii) supply any additional information that may be required or requested by the FAA, the DOT, the FCC or any other Governmental Entities, in connection with any such filings, registrations, notices, applications, submissions, information or documentation as promptly as practicable, and (iv) use their respective reasonable best efforts to obtain all consents, registrations, waivers, exemptions, approvals, confirmations, clearances, permits, certificates, orders, and authorizations necessary, proper or advisable to be obtained from, or renewed with, the FAA, the DOT, the FCC, and any other applicable Governmental Entity (other than pursuant to Contracts, which are addressed in Section 5.5(g)). ~~Notwithstanding~~ Parent, Merger Sub, and the Company will not extend any waiting period under any Competition Laws or enter into any agreement with any Governmental Entity not to consummate the Merger, unless the other parties have consented in writing to such extension or agreement (such consent not to be unreasonably withheld, conditioned or delayed). (d) Without limiting the generality of anything ~~to the contrary~~ contained in this Section 5.5, each party will: (i) give the other parties prompt notice of the making or commencement of any request, inquiry, investigation or Proceeding by or before any Governmental Entity with respect to the Merger or any of the other transactions contemplated by this Agreement; (ii) keep the other parties informed as to the status of any such request, inquiry, investigation or Proceeding; (iii) promptly inform the other parties of any communication to or from the FTC, the ~~Acquiring Parties shall~~ DOJ, the FAA, the DOT, the FCC, the DHS, the TSA or any other Governmental Entity regarding the Merger; (iv) consult and cooperate with the ~~Company~~ other parties and consider in good faith the views of the ~~Company~~ other parties in connection with ~~all material~~ any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted to a Governmental Entity (other than a Competition Authority) in connection with the Merger or any of the other transactions contemplated by this Agreement, and (v) permit the other parties to review in advance (and to consider in good faith any comments made by the other party in relation to) any proposed communication (other than communications relating solely to ministerial matters) by such party to the DOJ or the applicable Governmental Entity of another jurisdiction from which consent, license, permit, waiver, exemption, approval, authorization, confirmation, clearance, certificate, registration or order is required under applicable Competition Law in connection with the Merger or any of the other transactions contemplated by this Agreement (collectively, the “Competition Authorities”) relating to any request, inquiry, investigation or Proceeding by or before a Competition Authority with respect to the Merger or any of the other transactions contemplated by this Agreement. In addition, except as may be prohibited by any Governmental Entity or by any Law, in connection with any request, inquiry or investigation by, or any Proceeding before, a Competition Authority, each party will permit authorized Representatives of the other party to be present at each meeting or conference relating to any 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 a Competition Authority in connection with such request, inquiry, investigation or Proceeding. None of Parent, Merger Sub or the Company will agree to participate in any meeting, telephone call or discussion with a ~~Governmental~~ Competition Authority ~~and strategy regarding~~ in respect of any submissions, filings, investigation (including any settlement of the ~~Antitrust Laws. (e) The Company~~ investigation), litigation or other inquiry relating to the matters that are the subject of this Agreement unless it consults with the other parties in advance. Each of Parent, Merger Sub and the ~~Acquiring Parties~~Company will promptly provide each other with copies of all correspondence, in filings or communications between them or any of their ~~respective sole~~ Representatives, on the one hand, and ~~absolute discretion~~any Governmental Entity or members of its staff, on the other hand, with respect to this Agreement and the transactions contemplated by this Agreement; provided, however, that materials may ~~(x) redact materials~~ be redacted as necessary to (i) comply with contractual ~~arrangements~~ arrangements, (ii) to remove information related to Parent or Merger Sub’s valuation of the Company and (iii) address reasonable ~~attorney~~ attorney-client or other privilege or confidentiality concerns~~, exclude any information relating to Company valuation and similar matters relating~~ . (e) Notwithstanding anything to the ~~transactions contemplated herein~~contrary in this Agreement, ~~and~~ in connection with the receipt of any necessary consent, license, permit, waiver, approval, authorization, confirmation, clearance, certificate, exemption, registration or order of a Governmental Entity (yincluding under the HSR Act), neither Parent nor the Company (nor any of their respective Subsidiaries) ~~designate any competitively sensitive material as “Outside Counsel Only Material” such that such materials and the information contained therein~~ shall be ~~given only~~ required to (and no member of the Company Group shall without the prior written consent of Parent) sell, hold separate or otherwise dispose of or conduct their business (or, following the Closing, the combined business) in a specified manner, or agree to sell, hold separate or otherwise dispose of or conduct their business (or, following the Closing, the combined business) in a specified manner, or enter into or agree to enter into a voting trust arrangement, proxy arrangement, “hold separate” agreement or arrangement or similar agreement or arrangement with respect to the ~~outside counsel~~ assets, operations or conduct of their business (or, following the Closing, the combined business) in a specified manner, or permit the sale, holding separate or other disposition of, any assets of Parent, the Company or their respective Affiliates; provided, however, that Parent is prepared to undertake each of the ~~recipient and will not be disclosed to employees, officers or directors~~ commitments set forth on Section 5.5(e) of the ~~recipient unless express permission is obtained~~ Parent Disclosure Schedule if required, in ~~advance from~~ Parent’s reasonable judgment, to satisfy the ~~source of the materials or its legal counsel~~condition set forth in Section 6.1(b)(i). (f) ~~The Acquiring Parties~~ Notwithstanding anything to the contrary in this Agreement, subject to the last sentence of Section 5.5(c), Parent shall, on behalf of the parties hereto, control and lead all communications and strategy relating to obtaining all approvals, consents, waivers, registrations, permits, authorizations and other confirmations from any Governmental Entity (including any such approvals required by applicable Competition Laws) or third party necessary, proper or advisable to consummate the Merger ~~Sub~~ and other transactions contemplated by this Agreement and coordinate the overall development of the positions to be taken in any filing or submission with such other Governmental Entity in connection with any investigation or other inquiry or litigation by or before, or any negotiations with, a Governmental Entity; provided, however, that Parent shall consult in advance with the Company and in good faith take the Company’s views into account regarding the overall strategic direction of any such litigation, clearance or approval process, as applicable, and consult with the Company prior to taking any material substantive positions, making dispositive motions or other material substantive filings or submissions or entering into any negotiations concerning such litigation, clearance or approvals, as applicable. (g) Unless otherwise instructed in writing by Parent, the Company shall give (or shall cause the other members of the Company Group to give) any notices to third parties, and use, and cause the other members of the Company Group to use, their reasonable best efforts to obtain any third party consents (i) necessary, proper or advisable under Company Material Contracts to consummate the transactions contemplated by this Agreement or (ii) required to be disclosed in Section 3.4 of the Company Disclosure Schedule; provided, however, that the parties shall coordinate and cooperate in determining whether any actions, consents, approvals or waivers are required to be obtained from parties to any Company Material Contracts in connection with consummation of the Merger and seeking any such actions, consents, approvals or waivers. If so requested by Parent, the Company Group shall promptly cooperate with and timely respond to any information or other requests from third parties related to obtaining any consent from such third parties in connection with the transactions contemplated by this Agreement. (h) Notwithstanding anything to the contrary in this Agreement, in connection with obtaining any consent, approval or waiver from any Person with respect to the Merger pursuant to Section 5.5(g), the Company Group shall not, without the prior written consent of Parent, and none of Parent nor any of its Subsidiaries shall be required to, take any of the following actions in connection with seeking or obtaining any such consent, approval or waiver from such Person: (i) make any material payment of any fees, expenses, “profit sharing” payments or other consideration (including increased or accelerated payments) or concede anything of monetary or economic value to such Person, (ii) amend, supplement or otherwise modify any Contract pursuant to which such Person is entitled to provide consent, approval or waiver, (iii) otherwise make any accommodation or provide any material benefit to such Person or (iv) incur any liability or other obligation. (i) Parent and the Company shall not, and shall not permit any of their ~~controlled Affiliates~~ respective Subsidiaries to, (i) acquire or agree to ~~acquire~~ acquire, by merging or consolidating with, or by purchasing a substantial portion of the assets of or equity in or otherwise make any investment in, or by any other manner, any ~~business of any~~ Person or ~~other business organization or division~~ portion thereof, or otherwise acquire or agree to acquire or make any ~~assets or equity interests~~ investment in any assets, or (ii) ~~take or agree to take any other action (including entering into or agreeing to~~ enter into an agreement to form a new joint venture, strategic alliance or strategic partnership with another Person, or amend or modify any ~~material license~~agreement for a joint venture, ~~joint venture~~ strategic alliance or ~~other transaction~~strategic partnership with another Person in the case of each of clause (i) and clause (ii), ~~in each case that~~ if so doing would reasonably be expected to (A1) ~~impose any material delay in the obtaining of, or~~ materially increase the risk ~~materially~~ of not obtaining, ~~approval from~~any consent, approval, authorization, declaration, waiver, license, franchise, permit, certificate or ~~avoiding an Action by,~~ Order of any Governmental ~~Authority~~ Entity necessary to consummate the transactions contemplated ~~by this Agreement~~ hereby, or ~~the expiration or termination of any applicable waiting period,~~ (B2) materially increase the risk of any Governmental ~~Authority~~ Entity entering an Order prohibiting the consummation of the transactions contemplated ~~by this Agreement or~~ hereby. (Cj) ~~otherwise materially delay or prevent~~ Prior to the ~~consummation~~ Closing, Parent shall not, and Parent shall cause its Subsidiaries not to, take the actions set forth on Section 5.5(j) of the ~~transactions contemplated by this Agreement~~Company Disclosure Schedule.

Appears in 1 contract

Samples: Merger Agreement (Alaska Air Group, Inc.)

Appropriate Action; Consents; Filings. (a) In accordance with the terms and subject to the conditions of this Agreement (including Section ~~6.5~~6.6), the parties hereto will use their respective reasonable best efforts to ~~take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to~~ consummate and make effective the transactions contemplated ~~hereby~~ hereby, including the Merger, and to cause the conditions to the Merger set forth in Article VII to be satisfied as expeditiously as practicable (and in any event at least five ~~(5)~~ Business Days prior to the ~~Outside~~ Termination Date), including using reasonable best efforts to accomplish the following: (i) the obtaining of all necessary ~~or advisable~~ actions or non-actions~~, waivers~~, Consents and approvals from Governmental Authorities necessary ~~or advisable~~ in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale~~ and the making of all necessary ~~or advisable~~ registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary ~~or advisable~~ to obtain an approval from, or to avoid any Action by, any Governmental Authority necessary in connection with the consummation of the transactions contemplated by this Agreement, including the Merger~~, the Non-Arriver Extraction and the Arriver Sale~~, (ii) the obtaining of all other necessary consents, approvals or waivers from Third Parties (provided that ~~none of~~ the ~~Company, the Acquiring Parties or Merger Sub~~ Company shall not be required to make or agree to make any payment or accept any material conditions or obligations with respect ~~thereto, except as expressly set forth in Section 6.10(c~~thereto unless such payment is reimbursed by Parent and such condition is effective only after the Effective Time and consented to by Parent)~~), including in respect of the Non-Arriver Extraction and the Arriver Sale~~, (iii) the defending of any ~~Actions~~lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale~~ including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed and (iv) the execution and delivery of any additional instruments 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~~ Agreement, including the Merger, and to carry out fully the purposes of this Agreement~~. (b)~~ . Each of the parties hereto shall promptly (~~and, in the case of filings required under the HSR Act, in~~ A) no ~~event~~ later than ~~fifteen (15)~~ 10 Business Days following the date hereof~~) (i)~~ , make ~~and not withdraw any applicable~~ its filings under the HSR Act, and ~~thereafter~~ unless the parties hereto mutually agree in writing to a different timeframe, no later than 15 Business Days following the date hereof, make any other applications and filings required ~~or advisable~~ under the Antitrust ~~Laws or~~ and Foreign Investment ~~Screening~~ Laws of the jurisdictions set forth on Section 6.3(a) of the Company Disclosure Letter and Parent Disclosure Letter with respect to the transactions contemplated hereby, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale,~~ (iiB) comply at the earliest practicable date with any request under the HSR Act for additional information (including responding to any “second request”), documents or other materials received by such party from the U.S. Federal Trade Commission, the Antitrust Division of the U.S. Department of Justice or ~~from~~ by any other Governmental Authority under any Antitrust ~~Laws or~~ and Foreign Investment ~~Screening~~ Laws in respect of any such filings with respect to the transactions contemplated hereby, including the ~~Merger, the Non-Arriver Extraction and the Arriver Sale~~ Merger and (~~iii~~C) act in good faith and reasonably cooperate with ~~each~~ the other party in connection with any such filings (including, if requested by ~~another~~ the other party, ~~considering in good faith~~ consider all reasonable additions, deletions or changes suggested by the other party in connection therewith) and in connection with resolving any investigation or other inquiry of such agency or other Governmental Authority under any Antitrust ~~Laws~~ and Foreign Investment ~~Screening~~ Laws. In taking the foregoing actions, each of the Company and ~~the Acquiring Parties~~ Parent shall act reasonably and as promptly as practicable. Notwithstanding anything in this Agreement to the contrary, obtaining any Third Party Consents or waivers pursuant to Section ~~6.3(a)(ii~~6.3(a) above or ~~otherwise, including any Consents required in connection with the Non-Arriver Extraction or the Arriver Sale,~~ otherwise shall not be a condition to the obligations of any party to consummate the Merger. (cb) Without limiting anything in this Section ~~6.3~~ 6.3, (i) none of the parties ~~hereto~~ hereto, or their respective Affiliates shall extend any waiting period under the HSR Act or comparable period under ~~the HSR Act~~ other Antitrust and Foreign Investment Laws or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby, including the Merger, except with the prior written consent of the other parties hereto and (ii) ~~the Acquiring Parties~~ Parent and ~~Merger~~ Acquisition Sub agree to take (and to cause their Affiliates to take) promptly any and all steps necessary or reasonably advisable or as may be required by any Governmental Authority to avoid or eliminate each and every impediment and obtain all Consents ~~under any Antitrust Laws or Investment Screening Laws~~ set forth on Section 6.3(a) of the Company Disclosure Letter that may be required by any Governmental Authority so as to enable the parties to consummate the transactions contemplated by this Agreement, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale~~ as expeditiously as possible (and in any event at least five ~~(5)~~ Business Days prior to the ~~Outside~~ Termination Date), including committing to and effecting, by consent decree, hold separate order, trust or otherwise, (A) selling, divesting, licensing or otherwise disposing of, or holding separate and agreeing to sell, divest, license or otherwise dispose of, any assets of the Company, ~~the Acquiring Parties~~Parent, ~~Merger~~ Acquisition Sub or their respective Affiliates, (B) terminating, amending or assigning existing ~~relationships~~ relationships, and contractual rights and ~~obligations~~obligations of the Company, Parent, Acquisition Sub or their respective Affiliates, (C) ~~requiring the Acquiring Parties~~requiring, ~~Merger~~ Parent, Acquisition Sub, or the Company or any of their respective Affiliates to grant any right or commercial or other accommodation to, or enter into any material commercial contractual or other commercial relationship with, any Third Party and (D) imposing limitations on ~~the Acquiring Parties~~Parent, ~~Merger~~ Acquisition Sub, the Company or any of their respective Affiliates with respect to how they own, retain, conduct or operate all or any portion of their respective businesses or assets (clauses (A) through (D) shall be referred to as “Remedy Actions”). Notwithstanding anything to the contrary set forth in this Section 6.3, the Acquiring Parties and Merger Sub shall not be required to commit or agree to, and the Company shall not be permitted to commit or agree to without the consent of the Acquiring Parties, assets; provided that any such ~~Remedy Action~~ action contemplated by clause (ii) above ~~to the extent any such Remedy Action contemplated by clause (ii) above (x)~~ is ~~not~~ conditioned upon the consummation of the transactions contemplated by this ~~Agreement~~ Agreement, including the Merger; provided, further, that Parent and Acquisition Sub shall not be required to take (or (yagree not to take) ~~would require, or cause to be taken~~any action, (1I) ~~any sale, divestiture, licensing or other disposal of, or other action with respect to, any assets or businesses~~ that is not conditional on the consummation of ~~QUALCOMM Technology Licensing~~the Merger, (2II) ~~any sale~~that would subject Parent, ~~divestiture, licensing or other disposal of any assets or businesses of the Arriver Business~~Acquisition Sub, or any ~~other action with respect~~ of their Affiliates to any ~~assets~~ criminal liability or ~~businesses~~ (III) when taken together with all other actions, efforts, or agreements, would reasonably be expected to have a material adverse effect on the business, operations or financial results of Parent and its Subsidiaries (including the Company and its Subsidiaries) as a whole. (c) Within 20 Business Days of the ~~Arriver Business, that would materially diminish or materially interfere with the benefits that QUALCOMM reasonably expects to receive from its ownership~~ date of ~~the Arriver Business,~~ this Agreement (3) any sale or divestiture of any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a fair market value (measured at the time of such request using customary valuation methodologies to be unless otherwise agreed by the parties ~~hereto in good faith~~hereto), ~~which~~ Parent shall submit to the Company the Security Clearance Filings, and the Company shall deliver the Security Clearance Filings to the CSAs within five Business Days thereafter. Parent shall take all actions necessary regarding the Security Clearance Filings, including providing all such information and assurances as may ~~include an evaluation by a third party that is mutually selected~~ be required, requested or imposed by the ~~Parties)~~ CSAs, including without limitation, entering into a commitment letter, special security agreement or other similar arrangement or agreement in ~~excess of the amount set forth on Section 6.3(c)~~ relation to any business of the Company ~~Disclosure Letter less the amount of the economic impact determined with respect to any actions taken pursuant~~ that is subject to the following clause (4), or (4) any other action (excluding sales or divestitures) with respect to any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a net negative economic impact (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the fair market value determined with respect to any actions taken pursuant to the foregoing clause (3)NISPOM Rule. (d) 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 reasonably cooperate in good faith 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 substantive meetings or discussions 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 either party and any Governmental Authority with respect to this Agreement; provided that, notwithstanding anything in this Agreement to the contrary, the Acquiring Parties shall determine the strategy to be pursued for obtaining and lead the effort to obtain all necessary actions or nonactions and consents from Governmental Authorities, including any related litigation and Remedy Actions, pursuant to any Antitrust Law in connection with the transactions contemplated by this Agreement, and the Company shall take all reasonably requested actions to support the Acquiring Parties in connection therewith. Notwithstanding anything to the contrary contained in this Agreement, the Acquiring Parties shall consult with the Company and consider in good faith the views of the Company in connection with all material communications with a Governmental Authority and strategy regarding the Antitrust Laws. (e) The Company and ~~the Acquiring Parties~~Parent, in their respective sole and absolute discretion, may ~~(x)~~ redact ~~materials~~ material as necessary to comply with contractual ~~arrangements~~ arrangements, address reasonable ~~attorney~~ attorney-client or other privilege or confidentiality ~~concerns,~~ concerns and exclude any information relating to Company valuation and similar matters relating to the transactions contemplated herein, ~~and (y)~~ or designate any competitively sensitive material as “Outside Counsel Only Material,” such that such materials and the information contained therein shall be given only to the outside counsel of the recipient and will not be disclosed to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel. (fe) ~~The Acquiring Parties~~ Parent and ~~Merger~~ Acquisition Sub shall not, and shall not permit any of their ~~controlled~~ Affiliates to, (i) acquire or agree to acquire by merging or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests or (ii) take or agree to take any other action (including entering into or agreeing to enter into any material license, joint venture or other transaction), in each case that would reasonably be expected to (A) impose any ~~material~~ delay in the obtaining of, or increase the risk ~~materially~~ of not obtaining, approval from, or avoiding an Action by, any Governmental Authority under Antitrust and Foreign Investment Laws necessary to consummate the transactions contemplated by this ~~Agreement~~ Agreement, including the Merger, or the expiration or termination of any applicable waiting period, (B) ~~materially~~ increase the risk of any Governmental Authority entering an Order under Antitrust and Foreign Investment Laws prohibiting the consummation of the transactions contemplated by this Agreement or (C) otherwise ~~materially~~ delay or prevent the consummation of the transactions contemplated by this Agreement, including the Merger.

Appears in 1 contract

Samples: Merger Agreement (Daseke, Inc.)

Appropriate Action; Consents; Filings. (a) ~~In accordance~~ Each of the parties hereto shall (i) make promptly its respective filings, and thereafter make any other required submissions under the HSR Act with ~~the terms and subject~~ respect to the ~~conditions of this Agreement~~ transactions contemplated herein and (~~including Section 6.5~~ii) make promptly filings with or applications to the FCC with respect to the transactions contemplated herein (the "FCC Application")~~, the~~ . The parties hereto will use their respective reasonable best efforts to ~~take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to~~ consummate and make effective the transactions contemplated ~~hereby~~ herein and to cause the conditions to the Forward Merger and, if a Restructuring Trigger has occurred, the Reverse Merger, in each case as set forth in Article VII to be satisfied ~~as expeditiously as practicable~~ (~~and in any event at least five (5) Business Days prior to the Outside Date),~~ including using reasonable best efforts to ~~accomplish the following: (i) the obtaining of~~ obtain all ~~necessary or advisable actions or non-actions~~licenses, permits, consents, approvals, authorizations, waivers, ~~Consents~~ qualifications and ~~approvals from~~ orders of Governmental Authorities as are necessary ~~or advisable in connection with~~ for the consummation of the transactions contemplated ~~by this Agreement~~herein), ~~including the Merger, the Non-Arriver Extraction~~ and will do so in a manner designed to obtain such regulatory clearance and the ~~Arriver Sale~~ satisfaction of such conditions as expeditiously as reasonably possible; provided, however, that Buyer and FTH shall have the ~~making~~ right to make all decisions concerning any divestiture commitments necessary to comply with the FCC's multiple ownership rules set forth at 47 C.F.R. Section 73.3555) as in effect on the date of ~~all necessary or advisable registrations~~ this Agreement (the "FCC Multiple Ownership Rules"); provided, that Buyer and ~~filings (including filings~~ FTH shall 44 53 regularly consult with ~~Governmental Authorities~~the Company during the processes referred to in this Section 6.3 and consider in good faith the views of the Company with respect thereto; and provided, ~~if any) and the taking of all reasonable steps as may be necessary or advisable to obtain an approval from~~further, ~~or to avoid any Action by~~that, ~~any Governmental Authority~~ in connection with the ~~consummation~~ Merger, Buyer and FTH shall not seek a waiver of Section 73.3555 of the ~~transactions contemplated~~ FCC's rules except for a temporary waiver of subsections (b), and (e) thereof for a period not to exceed twelve months from the Closing Date for television divestitures required in order to obtain the FCC Consent (as defined in Section 7.1(e) hereof) and, with respect to subsection (d) thereof, in the FCC Application when it is filed, Buyer will (1) maintain that no waiver is required to permit it to own a newspaper and two television stations in the New York market, and (2) request in the alternative, if that position is rejected or a permanent waiver is not issued by ~~this Agreement~~the FCC, ~~including~~ a temporary waiver to hold the ~~Merger,~~ two television stations and newspaper for a period not to extend beyond the ~~Non-Arriver Extraction~~ date which is the later of (A) twelve months from the Closing Date and ~~the Arriver Sale,~~ (iiB) the ~~obtaining~~ conclusion of ~~all other necessary consents~~any then pending FCC rule making proceeding regarding 47 C.F.R. Section 73.3555(d); provided, ~~approvals or waivers from Third Parties~~ that the foregoing sentence shall be subject to the provisions of subsection (~~provided that none~~ b) below. Failure to obtain any of the ~~Company, the Acquiring Parties or Merger Sub shall be required to make or agree to make any payment or accept any material conditions or obligations with respect thereto, except as expressly~~ waivers set forth ~~in Section 6.10(c)), including in respect of the Non-Arriver Extraction and the Arriver Sale,~~ above shall not limit Buyer's obligations pursuant to subsection (~~iii~~b) the defending of any Actions, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed and (iv) the execution and delivery of any additional instruments necessary to consummate the Merger and any other transactions to be performed or consummated by such party in accordance with the terms of this Agreement and to carry out fully the purposes of this Agreementbelow. (b) Each of the parties hereto shall promptly (and, in the case of filings required under the HSR Act, in no event later than fifteen (15) Business Days following the date hereof) (i) make and not withdraw any applicable filings under the HSR Act, and thereafter make any other applications and filings required or advisable under the Antitrust Laws or Investment Screening Laws of the jurisdictions set forth on Section 6.3(a) of the Company Disclosure Letter with respect Notwithstanding anything to the ~~transactions contemplated hereby~~contrary in this Agreement other than the following sentence, including the Merger, the Non-Arriver Extraction and the Arriver Sale, (ii) comply at the earliest practicable date with any request under the HSR Act for additional information (including responding to any “second request”), documents or other materials received by such party from the U.S. Federal Trade Commission, the Antitrust Division of the U.S. Department of Justice or from any other Governmental Authority under any Antitrust Laws or Investment Screening Laws in respect of any such filings with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale and (iii) act in good faith and reasonably cooperate with each other party in connection with any such filings (including, if requested by another party, considering in good faith all reasonable additions, deletions or changes suggested by the other party in connection therewith) and in connection with resolving any investigation or other inquiry of such agency or other Governmental Authority under any Antitrust Laws and Investment Screening Laws. In taking the foregoing actions, each of the Company and ~~the Acquiring Parties shall act reasonably~~ Buyer and as promptly as practicable. Notwithstanding anything in this Agreement to the contrary, obtaining any Third Party Consents or waivers pursuant to Section 6.3(a)(ii) above or otherwise, including any Consents required in connection with the Non-Arriver Extraction or the Arriver Sale, shall not be a condition to the obligations of any party to consummate the Merger. (c) Without limiting anything in this Section 6.3 (i) none of the parties hereto or their respective Affiliates shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby, except with the prior written consent of the other parties hereto and (ii) the Acquiring Parties and Merger Sub FTH each agree to take ~~(and to cause their Affiliates to take)~~ promptly any and all steps necessary ~~or reasonably advisable or as may be required by any Governmental Authority~~ to avoid or eliminate each and every impediment and obtain all ~~Consents~~ consents or waivers under any ~~Antitrust Laws~~ antitrust, competition or ~~Investment Screening Laws~~ communications or broadcast Law that may be validly required by any U.S. federal, state or local antitrust or competition Governmental ~~Authority~~ Authority, or by the FCC or similar Governmental Authority, or by any Australian Law, in each case with competent jurisdiction, so as to enable the parties to ~~consummate~~ close the transactions contemplated by this ~~Agreement, including the Merger, the Non-Arriver Extraction and the Arriver Sale~~ Agreement as expeditiously as ~~possible (and in any event at least five (5) Business Days prior to the Outside Date)~~reasonably possible, including committing to ~~and~~ or effecting, by consent decree, hold separate ~~order~~orders, ~~trust~~ trust, or otherwise, the sale or disposition of such of its assets or businesses as are required to be divested in order to obtain the FCC Consent (~~A) selling~~as defined below), ~~divesting, licensing~~ or ~~otherwise disposing~~ to avoid the entry of, or ~~holding separate and agreeing~~ to ~~sell, divest, license~~ effect the dissolution of or ~~otherwise dispose of~~vacate or lift, any ~~assets of the Company~~decree, ~~the Acquiring Parties~~order, ~~Merger Sub or their respective Affiliates~~judgment, ~~(B) terminating~~injunction, amending or assigning existing relationships and contractual rights and obligations, (C) requiring the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates to grant any right or commercial temporary restraining order or other ~~accommodation to~~order in any suit or proceeding by or with any Governmental Authority (each, an "Order"), that would otherwise have the effect of preventing or enter into any material commercial contractual or other commercial relationship with, any Third Party and (D) imposing limitations on the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates with respect to how they own, retain, conduct or operate all or any portion of their respective businesses or assets (clauses (A) through (D) shall be referred to as “Remedy Actions”). Notwithstanding anything to the contrary set forth in this Section 6.3, the Acquiring Parties and Merger Sub shall not be required to commit or agree to, and the Company shall not be permitted to commit or agree to without the consent of the Acquiring Parties, any such Remedy Action contemplated by clause (ii) above to the extent any such Remedy Action contemplated by clause (ii) above (x) is not conditioned upon materially delaying the consummation of the transactions contemplated by this Agreement or (y) would require, or cause to be taken, (1) any sale, divestiture, licensing or other disposal of, or other action with respect to, any assets or businesses of QUALCOMM Technology Licensing, (2) any sale, divestiture, licensing or other disposal of any assets or businesses of the Arriver Business, or any other action with respect to any assets or businesses of the Arriver Business, that would materially diminish or materially interfere with the benefits that QUALCOMM reasonably expects to receive from its ownership of the Arriver Business, (3) any sale or divestiture of any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a fair market value (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the economic impact determined with respect to any actions taken pursuant to the following clause (4), or (4) any other action (excluding sales or divestitures) with respect to any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a net negative economic impact (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the fair market value determined with respect to any actions taken pursuant to the foregoing clause (3). (d) Each of the parties hereto will furnish to Merger and 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 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 substantive meetings or discussions 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 either party and any Governmental Authority with respect to this Agreement; provided that, notwithstanding anything in this Agreement to the contrary, the Acquiring Parties shall determine the strategy to be pursued for obtaining and lead the effort to obtain all necessary actions or nonactions and consents from Governmental Authorities, including any related litigation and Remedy Actions, pursuant to any Antitrust Law in connection with the transactions contemplated by this Agreement~~, and the Company shall take all reasonably requested actions to support the Acquiring Parties in connection therewith~~. Notwithstanding ~~anything~~ the foregoing, (i) neither Buyer nor FTH shall be required to ~~the contrary contained in this Agreement, the Acquiring Parties shall consult with the Company and consider in good faith the views~~ divest any of ~~the Company in connection with all~~ its material ~~communications with a Governmental Authority and strategy regarding the Antitrust Laws. (e) The Company and the Acquiring Parties, in their respective sole and absolute discretion, may~~ assets or accept any material limitation on any of its material businesses other than (x) ~~redact materials~~ the divestiture of such broadcast assets (i.e., newspaper and television stations) as ~~necessary~~ it is required to ~~comply with contractual arrangements address reasonable attorney client~~ divest or ~~other privilege~~ (y) the material limitation on such broadcast assets or ~~confidentiality concerns~~Buyer's and FTH's operation thereof as it is required to be subject to, ~~exclude any information relating to Company valuation and similar matters relating to~~ in the ~~transactions contemplated herein,~~ case of each of clauses (x) and (y) ~~designate any competitively sensitive material as “Outside Counsel Only Material” such that such materials and~~ in order to comply with the ~~information contained therein~~ FCC Multiple Ownership Rules or a final Order in an action brought by an antitrust or competition or FCC or similar Governmental Authority, (ii) notwithstanding clause (i), neither the Company, Buyer nor FTH shall be ~~given only~~ required to divest or to hold separate, or to accept any substantial limitation on the ~~outside counsel~~ operation of, or to waive any rights material to, the Los Angeles television station of Buyer or the Company (each of the ~~recipient and will not be disclosed to employees, officers or directors of the recipient unless express permission is obtained~~ actions described in ~~advance from the source of the materials or its legal counsel. (f) The Acquiring Parties and Merger Sub shall not, and shall not permit any of their controlled Affiliates to,~~ clause (i) acquire or agree to acquire by merging or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests or and (ii) ~~take or agree~~ above being an "Adverse Condition"), (iii) neither party shall be required to take any ~~other~~ of the foregoing actions if such action (including entering into or agreeing to enter into any material license, joint venture or other transaction), in each case that would reasonably be expected to (A) impose any material delay in the obtaining of, or increase the risk materially of is not obtaining, approval from, or avoiding an Action by, any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period, (B) materially increase the risk of any Governmental Authority entering an Order prohibiting conditioned on the consummation of the ~~transactions contemplated by this Agreement or~~ Merger and (Civ) ~~otherwise materially delay or prevent~~ without limiting Buyer's obligations set forth herein, the ~~consummation~~ Company shall not agree to any of the ~~transactions contemplated by this Agreement.~~foregoing without Buyer's

Appears in 1 contract

Samples: Merger Agreement (BHC Communications Inc)

Appropriate Action; Consents; Filings. (a) ~~In accordance with~~ Subject to Section 6.4 and the terms and ~~subject to the~~ conditions of this ~~Agreement (including Section 6.5)~~Agreement, the parties hereto will cooperate with each other and use their respective reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby as soon as practicable and to cause the conditions to the Offer and the Merger set forth in Annex I and Article VII to be ~~satisfied as expeditiously as practicable (and in any event at least five (5) Business Days prior to the Outside Date)~~satisfied, including ~~using reasonable best efforts to accomplish the following:~~ (i) the obtaining and maintaining of all ~~necessary or advisable actions or~~ actions, non-actions, ~~waivers~~consents, ~~Consents~~ clearances, waivers and approvals from Governmental Authorities or other third persons (including for the avoidance of doubt counterparties to the Company Leases) necessary or advisable in connection with the consummation of the transactions contemplated by this Agreement, ~~including the Merger, the Non-Arriver Extraction and the Arriver Sale~~ and the making of all ~~necessary or advisable~~ registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable or customary steps in each case as may be necessary or advisable to obtain an approval from, or to avoid ~~any Action~~ an action or proceeding by, any Governmental Authority or other third person in connection with the consummation of the transactions contemplated by this Agreement, ~~including the Merger, the Non-Arriver Extraction and the Arriver Sale,~~ (ii) the ~~obtaining of all other necessary consents, approvals~~ defending or waivers from Third Parties (provided that none of the Company, the Acquiring Parties or Merger Sub shall be required to make or agree to make any payment or accept any material conditions or obligations with respect thereto, except as expressly set forth in Section 6.10(c)), including in respect of the Non-Arriver Extraction and the Arriver Sale, (iii) the defending contesting of any ~~Actions~~claims, actions, investigations, lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions ~~contemplated hereby~~performed or consummated by such party in accordance with the terms of this Agreement, ~~including the Merger, the Non-Arriver Extraction and the Arriver Sale~~ including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed and (iviii) the execution and delivery of any additional instruments necessary to consummate the Offer and 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 promptly (~~and, in the case of filings required under the HSR Act,~~ and in no event later than ~~fifteen~~ ten (1510) Business Days following the date ~~hereof) (i~~that this Agreement is executed) make ~~and not withdraw any applicable~~ its respective filings under the HSR Act, and thereafter make any other applications and filings required or advisable under the Antitrust Laws or Investment Screening Laws of the jurisdictions set forth on Section 6.3(a) of the Company Disclosure Letter Act with respect to the transactions contemplated hereby~~, including the Merger~~. In addition, the ~~Non-Arriver Extraction~~ parties shall mutually agree to make any and ~~the Arriver Sale, (ii) comply at the earliest practicable date with any request under the HSR Act for additional information (including responding~~ all other filings required pursuant to ~~any “second request”), documents or~~ other ~~materials received by such party from the U.S. Federal Trade Commission, the Antitrust Division of the U.S. Department of Justice or from any other Governmental Authority under any~~ Antitrust Laws or Investment Screening Laws in respect of any such filings with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale and (iii) act in good faith and reasonably cooperate with each other party in connection with any such filings (including, if requested by another party, considering in good faith all reasonable additions, deletions or changes suggested by the other party in connection therewith) and in connection with resolving any investigation or other inquiry of such agency or other Governmental Authority under any Antitrust Laws and Investment Screening Laws. In taking the foregoing actions, each of the Company and the Acquiring Parties shall act reasonably and as promptly as ~~practicable. Notwithstanding anything in~~ reasonably practicable following the date that this Agreement to the contrary, obtaining any Third Party Consents or waivers pursuant to Section 6.3(a)(ii) above or otherwise, including any Consents required in connection with the Non-Arriver Extraction or the Arriver Sale, shall not be a condition to the obligations of any party to consummate the Mergeris executed. (cb) ~~Without limiting anything in this Section 6.3 (i) none~~ Each of Parent, Acquisition Sub and the ~~parties hereto or their respective Affiliates shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not~~ Company agree to ~~consummate the transactions contemplated hereby, except with the prior written consent of the other parties hereto and (ii) the Acquiring Parties and Merger Sub agree~~ use reasonable best efforts to take (and to cause their ~~Affiliates~~ subsidiaries to take) promptly ~~any and~~ all steps necessary ~~or reasonably advisable or as may be required by any Governmental Authority~~ to avoid or eliminate each and every impediment and obtain all ~~Consents~~ consents under any Antitrust ~~Laws or Investment Screening~~ Laws that may be required by any foreign or U.S. federal, state or local Governmental ~~Authority~~ Authority, in each case with competent jurisdiction, so as to enable the parties to ~~consummate~~ close the transactions contemplated by this ~~Agreement~~Agreement as promptly as practicable. In no event, ~~including the Merger~~however, ~~the Non-Arriver Extraction and the Arriver Sale as expeditiously as possible (and in any event at least five (5) Business Days prior to the Outside Date)~~shall Parent, including committing to and effecting, by consent decree, hold separate order, trust or otherwise, (A) selling, divesting, licensing or otherwise disposing of, or holding separate and agreeing to sell, divest, license or otherwise dispose of, any assets of the Company, the Acquiring Parties, Merger Acquisition Sub ~~or their respective Affiliates, (B) terminating, amending or assigning existing relationships and contractual rights and obligations, (C) requiring the Acquiring Parties, Merger Sub, the Company~~ or any of their respective Affiliates be obligated to ~~grant~~ divest or hold separate any right or commercial or other accommodation to, or enter into any material commercial contractual or other commercial relationship with, any Third Party and (D) imposing limitations on the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates with respect to how they own, retain, conduct or operate all or any portion of their respective businesses business or assets ~~(clauses (A) through (D) shall be referred to as “Remedy Actions”). Notwithstanding anything to the contrary set forth~~ in this Section 6.3, the Acquiring Parties and Merger Sub shall not be required to commit or agree to, and the Company shall not be permitted to commit or agree to without the consent of the Acquiring Parties, any such Remedy Action contemplated by clause (ii) above to the extent any such Remedy Action contemplated by clause (ii) above (x) is not conditioned upon connection with the consummation of the transactions contemplated by this ~~Agreement~~ Agreement, agree to any condition, restriction or ~~(y) would require~~limitation with respect to Parent, Acquisition Sub or ~~cause~~ any of their respective Affiliates or any of their respective assets or operations, or, pay any money to ~~be taken, (1)~~ any ~~sale, divestiture, licensing~~ Person or offer or grant other financial or other ~~disposal of~~accommodations to any Person in connection with their obligations under this Section. Each of Parent, Acquisition Sub and the Company shall respond as promptly as practicable to any inquiries received from any Governmental Authority under any Antitrust Laws for additional information or ~~other action with respect to~~documentation and to all inquiries and requests received from either Governmental Authority. Notwithstanding anything to the contrary in this Agreement, neither the Company nor any ~~assets~~ of its subsidiaries shall, without the written consent of Parent, offer or ~~businesses of QUALCOMM Technology Licensing~~agree to divest, license, hold separate (2including by trust or otherwise) or otherwise commit any ~~sale, divestiture, licensing or other disposal of any assets or businesses~~ of the ~~Arriver Business~~Company, Parent, Acquisition Sub or any ~~other~~ of their respective subsidiaries to take any action that limits any freedom of action with respect to their ability to retain or operate any ~~assets~~ of their businesses, services or ~~businesses~~ assets. (c) The Company shall give (or shall cause its respective subsidiaries to give) any notices to third parties and the Company shall use its reasonable best efforts to, and Parent shall use and cause each of its subsidiaries to use its reasonable best efforts to cooperate with the Company in its efforts to, obtain any third party consents not covered by paragraphs (a) and (b) above that are necessary, proper or advisable to consummate the Offer or the Merger; provided that none of the ~~Arriver Business~~Company, that would materially diminish or materially interfere with the benefits that QUALCOMM reasonably expects to receive from its ownership of the Arriver Business, (3) any sale or divestiture of any assets or businesses of QUALCOMM Parent or any of ~~its Subsidiaries, or with respect~~ their respective subsidiaries shall be required to make any ~~assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a fair market value (measured at the time of such request using customary valuation methodologies~~ payments to ~~be agreed by the parties hereto in good faith, which may include an evaluation by~~ a third party ~~that is mutually selected by the Parties) in excess~~ to obtain any consent or approval of ~~the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the economic impact determined with respect to any actions taken pursuant~~ such third party prior to the ~~following clause (4)~~Acceptance Time, ~~or (4)~~ and shall not agree to make any other action (excluding sales or divestitures) with respect to any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a net negative economic impact (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the fair market value determined with respect to any actions taken pursuant to the foregoing clause (3). (d) payments without Xxxxxx's prior written consent. Each of the parties hereto will (i) keep the others reasonably informed of any developments with any Governmental Authority in respect of any filings, investigation or inquiry concerning the Offer or the Merger, (ii) 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~~ submissions, and ~~will~~ (iii) cooperate in responding to any inquiry from a Governmental Authority, including ~~(i) promptly~~ immediately 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 substantive meetings or discussions 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 either party and any Governmental Authority with respect to this Agreement~~; provided that~~. Each party shall promptly inform the other parties of any oral communication with any Governmental Authority regarding any filings therewith or the transactions contemplated hereby. Each party agrees not to initiate any meeting or discussion, ~~notwithstanding anything~~ either in ~~this Agreement to the contrary~~person or by telephone, ~~the Acquiring Parties shall determine the strategy to be pursued for obtaining and lead the effort to obtain all necessary actions or nonactions and consents from~~ with any Governmental ~~Authorities, including any related litigation and Remedy Actions, pursuant to any Antitrust Law~~ Authority in connection with the transactions contemplated by this Agreement, and the Company shall take all reasonably requested actions to support the Acquiring Parties in connection therewith. Notwithstanding anything to the contrary contained in this Agreement, the Acquiring Parties shall consult hereby unless it consults with the ~~Company~~ other party in advance and ~~consider~~ gives the other party the opportunity to attend any meetings, or to participate in ~~good faith the views of the Company in connection with all material~~ any communications ~~with~~ with, a Governmental Authority and strategy regarding the Antitrust Laws. (e) The Company and the Acquiring Parties, in their respective sole and absolute discretion, may (x) redact materials as necessary to comply with contractual arrangements address reasonable attorney client or other privilege or confidentiality concerns, exclude any information relating to Company valuation and similar matters relating to the ~~transactions contemplated herein, and (y) designate any competitively sensitive material as “Outside Counsel Only Material”~~ extent permitted by such that such materials and the information contained therein shall be given only to the outside counsel of the recipient and will not be disclosed to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counselGovernmental Authority. (f) The Acquiring Parties and Merger Sub shall not, and shall not permit any of their controlled Affiliates to, (i) acquire or agree to acquire by merging or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests or (ii) take or agree to take any other action (including entering into or agreeing to enter into any material license, joint venture or other transaction), in each case that would reasonably be expected to (A) impose any material delay in the obtaining of, or increase the risk materially of not obtaining, approval from, or avoiding an Action by, any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period, (B) materially increase the risk of any Governmental Authority entering an Order prohibiting the consummation of the transactions contemplated by this Agreement or (C) otherwise materially delay or prevent the consummation of the transactions contemplated by this Agreement.

Appears in 1 contract

Samples: Merger Agreement (Millennial Media Inc.)

Appropriate Action; Consents; Filings. (a) In accordance with the terms and subject to the conditions of this Agreement (including the limitations set forth in Section 6.5), the parties hereto will use their respective reasonable best efforts ~~to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable~~ to consummate and make effective the transactions contemplated hereby and to cause the conditions to the Merger set forth in Article VII to be satisfied as ~~expeditiously~~ promptly as ~~practicable (and in any event at least five (5) Business Days prior to the Outside Date)~~practicable, including using reasonable best efforts to accomplish the following: (i) the obtaining of all necessary ~~or advisable~~ actions or non-actions~~, waivers~~, Consents and approvals from Governmental Authorities necessary ~~or advisable~~ in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale~~ and the making of all necessary ~~or advisable~~ registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary ~~or advisable~~ to obtain an approval from, or to avoid ~~any Action~~ an action or proceeding by, any Governmental Authority necessary in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale,~~ (ii) the obtaining of all other necessary consents, approvals or waivers from Third Parties (provided that none of the Company, the Acquiring Parties or Merger Sub shall be required to make or agree to make any payment or accept any material conditions or obligations with respect thereto, except as expressly set forth in Section 6.10(c)), including in respect of the Non-Arriver Extraction and the Arriver SaleParties, (iii) the defending of any ~~Actions~~lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including the Merger, performed or consummated by such party in accordance with the ~~Non-Arriver Extraction and the Arriver Sale~~ terms of this Agreement, including seeking to have any ~~stay or~~ stay, temporary restraining order or permanent injunction, entered by any court or other Governmental Authority that would have the effect of delaying or precluding the consummation of the transaction contemplated hereby, vacated or reversed 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~~. (b) Each~~ . Without limitation of the foregoing sentence, each of the parties hereto (A) shall ~~promptly (and, in the case of filings required under the HSR Act, in no event later than fifteen (15) Business Days following the date hereof) (i)~~ as soon as practicable make and not withdraw ~~any applicable~~ its respective filings under the HSR ~~Act~~Act and thereafter, ~~and thereafter~~ as soon as practicable make any other applications and filings ~~required or advisable~~ as reasonably determined by Company and Parent under ~~the~~ applicable Antitrust Laws ~~or Investment Screening Laws of the jurisdictions set forth on Section 6.3(a) of the Company Disclosure Letter~~ with respect to the transactions contemplated hereby, ~~including the Merger, the Non-Arriver Extraction and the Arriver Sale,~~ (iiB) comply at the earliest practicable date with any request under the HSR Act for additional ~~information (including responding to any “second request”)~~information, documents or other materials received by such party from the U.S. Federal Trade Commission, the Antitrust Division of the U.S. Department of Justice or ~~from~~ by any other Governmental Authority under any Antitrust ~~Laws or Investment Screening~~ Laws in respect of any such filings with respect to the transactions contemplated hereby, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale~~ and (~~iii~~C) act in good faith and reasonably cooperate with ~~each~~ the other party in connection with any such filings (including, if requested by ~~another~~ the other party, ~~considering in good faith~~ to accept all reasonable additions, ~~deletions~~ deletion or changes suggested by the other party in connection therewith) and in connection with resolving any investigation or other inquiry of any such agency or other Governmental Authority under any Antitrust ~~Laws and Investment Screening~~ Laws. In ~~taking~~ exercising the foregoing ~~actions~~rights, each of the Company and ~~the Acquiring Parties~~ Parent shall act reasonably and as promptly as practicable. Notwithstanding ~~anything in this Agreement to~~ the ~~contrary~~foregoing, obtaining any Third Party ~~Consents~~ consents, approvals or waivers pursuant to ~~Section 6.3(a)(ii~~clause (ii) above ~~or otherwise, including any Consents required in connection with the Non-Arriver Extraction or the Arriver Sale,~~ shall not be considered a condition to the obligations of ~~any party~~ Parent and Acquisition Sub to consummate the Merger~~. (c) Without limiting~~ . Notwithstanding anything to the contrary contained in this Agreement, but subject to Parent’s obligations set forth in this Section ~~6.3~~ 6.3, Parent, following consultation with the Company and after giving due consideration to its views and acting reasonably and in good faith, shall have the right to direct all matters with respect to any Governmental Authority in connection with obtaining any necessary Consents under Antitrust Laws (~~i) none of the parties hereto or their respective Affiliates shall extend any waiting period or comparable period under~~ including the HSR ~~Act or enter into~~ Act) consistent with its obligations hereunder, and shall have the principal responsibility for devising and implementing the strategy for, obtaining any ~~agreement~~ Consents under Antitrust Laws (including the HSR Act), and shall take the lead in all meetings and communications with any Governmental Authority ~~not to consummate~~ in connection with obtaining any necessary Consents under Antitrust Laws (including the ~~transactions contemplated hereby, except with the prior written consent of the other parties hereto~~ HSR Act). (b) Parent and ~~(ii) the Acquiring Parties and Merger~~ Acquisition Sub agree to take (and to cause their Affiliates to take) as promptly as practicable any and all steps necessary ~~or reasonably advisable or as may be required by any Governmental Authority~~ to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws ~~or Investment Screening Laws~~ (including the HSR Act) that may be required by any foreign or U.S. federal, state or local Governmental ~~Authority~~ Authority, in each case with competent jurisdiction, so as to enable the parties to consummate the transactions contemplated by this Agreement, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale~~ as ~~expeditiously~~ promptly as ~~possible (and in any event at least five (5) Business Days prior to the Outside Date)~~practicable, including committing to ~~and~~ or effecting, by consent decree, hold separate ~~order~~orders, ~~trust~~ trust, or otherwise, ~~(A) selling, divesting, licensing~~ the sale or ~~otherwise disposing~~ disposition of such assets or businesses as are required to be divested in order to avoid the entry of, or ~~holding separate and agreeing~~ to ~~sell, divest, license~~ effect the dissolution of or ~~otherwise dispose of~~vacate or lift, any ~~assets~~ Order, that would otherwise have the effect of ~~the Company, the Acquiring Parties, Merger Sub~~ preventing or their respective Affiliates, (B) terminating, amending or assigning existing relationships and contractual rights and obligations, (C) requiring the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates to grant any right or commercial or other accommodation to, or enter into any material commercial contractual or other commercial relationship with, any Third Party and (D) imposing limitations on the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates with respect to how they own, retain, conduct or operate all or any portion of their respective businesses or assets (clauses (A) through (D) shall be referred to as “Remedy Actions”). Notwithstanding anything to the contrary set forth in this Section 6.3, the Acquiring Parties and Merger Sub shall not be required to commit or agree to, and the Company shall not be permitted to commit or agree to without the consent of the Acquiring Parties, any such Remedy Action contemplated by clause (ii) above to the extent any such Remedy Action contemplated by clause (ii) above (x) is not conditioned upon materially delaying the consummation of the Merger and the other transactions contemplated by this Agreement ~~or (y) would require~~as promptly as practicable. Further, or and for the avoidance of doubt, Parent will, and will cause ~~to be taken, (1) any sale, divestiture, licensing or other disposal of, or other action with respect~~ its Affiliates to, take any ~~assets~~ and all actions necessary in order to ensure that (i) no requirement for any non-action by or ~~businesses of QUALCOMM Technology Licensing, (2) any sale, divestiture, licensing~~ Consent or ~~other disposal of any assets or businesses~~ approval of the ~~Arriver Business,~~ any foreign or ~~any other action~~ U.S. Governmental Authority with respect to any assets or businesses of the Arriver Business, that would materially diminish or materially interfere with the benefits that QUALCOMM reasonably expects to receive from its ownership of the Arriver BusinessAntitrust Laws, (3ii) ~~any sale or divestiture of any assets or businesses of QUALCOMM~~ no decree, judgment, injunction, temporary restraining order or any ~~of its Subsidiaries,~~ other Order in any suit or proceeding with respect to any ~~assets or businesses~~ Antitrust Laws, and (iii) no other matter relating to any Antitrust Laws would preclude consummation of the ~~Company or its Subsidiaries, that individually or in the aggregate, have a fair market value (measured at the time of such request using customary valuation methodologies to be agreed~~ Merger by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the economic impact determined with respect to any actions taken pursuant to the following clause (4), or (4) any other action (excluding sales or divestitures) with respect to any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a net negative economic impact (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the fair market value determined with respect to any actions taken pursuant to the foregoing clause (3)Termination Date. (dc) 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 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~~Authority after giving due consideration to the views of the other party and acting reasonably and in good faith in respect thereof, (iii) giving the other party the opportunity to attend and participate in any substantive meetings or discussions with any Governmental Authority, to the extent not prohibited by such Governmental ~~Authority~~ Authority, and (iv) supplying each other with copies of all material correspondence, filings or communications between either party and any Governmental Authority with respect to this Agreement~~; provided that~~, ~~notwithstanding anything in this Agreement~~ subject to the ~~contrary, the Acquiring Parties shall determine the strategy~~ redaction of any information deemed by such party to be ~~pursued for~~ competitively sensitive. Notwithstanding the foregoing, obtaining ~~and lead the effort to obtain all necessary actions or nonactions and~~ any Third Party consents ~~from Governmental Authorities, including any related litigation and Remedy Actions,~~ pursuant to ~~any Antitrust Law in connection with the transactions contemplated by~~ this ~~Agreement, and the Company~~ Section 6.3(c) shall ~~take all reasonably requested actions to support the Acquiring Parties in connection therewith. Notwithstanding anything~~ not be considered a condition to the ~~contrary contained in this Agreement, the Acquiring Parties shall consult with the Company and consider in good faith the views~~ obligations of the ~~Company in connection with all material communications with a Governmental Authority~~ Parent and strategy regarding the Antitrust Laws. (e) The Company and the Acquiring Parties, in their respective sole and absolute discretion, may (x) redact materials as necessary to comply with contractual arrangements address reasonable attorney client or other privilege or confidentiality concerns, exclude any information relating to Company valuation and similar matters relating to the transactions contemplated herein, and (y) designate any competitively sensitive material as “Outside Counsel Only Material” such that such materials and the information contained therein shall be given only to the outside counsel of the recipient and will not be disclosed to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel. (f) The Acquiring Parties and Merger Acquisition Sub shall not, and shall not permit any of their controlled Affiliates to, (i) acquire or agree to acquire by merging or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests or (ii) take or agree to take any other action (including entering into or agreeing to enter into any material license, joint venture or other transaction), in each case that would reasonably be expected to (A) impose any material delay in the obtaining of, or increase the risk materially of not obtaining, approval from, or avoiding an Action by, any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period, (B) materially increase the risk of any Governmental Authority entering an Order prohibiting the consummation of the transactions contemplated by this Agreement or (C) otherwise materially delay or prevent the consummation of the transactions contemplated by this AgreementMerger.

Appears in 1 contract

Samples: Merger Agreement

Appropriate Action; Consents; Filings. (a) ~~In accordance with~~ Subject to the terms and ~~subject to the~~ conditions of this Agreement (including the limitations set forth in Section 6.5), the parties hereto will use their respective reasonable best efforts ~~to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable~~ to consummate and make effective the transactions contemplated hereby and to cause the conditions to the Merger set forth in Article VII to be ~~satisfied as expeditiously as practicable (and in any event at least five (5) Business Days prior to the Outside Date)~~satisfied, including using reasonable best efforts to accomplish the following: (i) the obtaining of all necessary ~~or advisable~~ actions or non-actions, ~~waivers, Consents~~ consents and approvals from Governmental Authorities necessary ~~or advisable~~ in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale~~ and the making of all necessary ~~or advisable~~ registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary ~~or advisable~~ to obtain an approval from, or to avoid ~~any Action~~ a Proceeding by, any Governmental Authority necessary in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale,~~ (ii) the obtaining of all other necessary consents, approvals or waivers from Third Parties (provided that none of the Company, the Acquiring Parties or Merger Sub shall be required to make or agree to make any payment or accept any material conditions or obligations with respect thereto, except as expressly set forth in Section 6.10(c)), including in respect of the Non-Arriver Extraction and the Arriver SaleParties, (iii) the defending of any ~~Actions~~lawsuits or other legal Proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated ~~hereby~~hereby (“Merger Litigation”), including the Merger, performed or consummated by such party in accordance with the ~~Non-Arriver Extraction and the Arriver Sale~~ terms of this Agreement, including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed and (iv) the execution and delivery of any additional instruments 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 promptly (~~and, in the case of filings required under the HSR Act,~~ and in no event later than ~~fifteen~~ ten (1510) Business Days following the date ~~hereof) (i~~that this Agreement is executed) make and not withdraw ~~any applicable~~ its respective filings under the HSR Act, and ~~thereafter~~ make as soon as reasonably practicable after the date hereof any other applications and filings ~~required or advisable~~ as reasonably determined by Company and Parent under ~~the~~ applicable Antitrust Laws ~~or Investment Screening Laws of the jurisdictions set forth on Section 6.3(a) of the Company Disclosure Letter~~ with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale, (ii) comply at the earliest practicable date with any request under the HSR Act for additional information (including responding to any “second request”), documents or other materials received by such party from the U.S. Federal Trade Commission, the Antitrust Division of the U.S. Department of Justice or from any other Governmental Authority under any Antitrust Laws or Investment Screening Laws in respect of any such filings with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale and (iii) act in good faith and reasonably cooperate with each other party in connection with any such filings (including, if requested by another party, considering in good faith all reasonable additions, deletions or changes suggested by the other party in connection therewith) and in connection with resolving any investigation or other inquiry of such agency or other Governmental Authority under any Antitrust Laws and Investment Screening Laws. In taking the foregoing actions, each of the Company and the Acquiring Parties shall act reasonably and as promptly as practicable. Notwithstanding ~~anything in this Agreement to~~ the ~~contrary~~foregoing, obtaining any Third Party ~~Consents~~ consents, approvals or waivers pursuant to Section 6.3(a)(ii) above ~~or otherwise, including any Consents required in connection with the Non-Arriver Extraction or the Arriver Sale,~~ shall not be considered a condition to the obligations of ~~any party~~ Parent and Acquisition Sub to consummate the Merger~~. (c) Without limiting anything~~ . The Company shall give Parent the right to review and comment on all material filings or responses to be made by the Company in ~~this Section 6.3 (i) none of the parties hereto or their respective Affiliates shall extend any waiting period or comparable period under the HSR Act or enter into any agreement~~ connection with any ~~Governmental Authority not to consummate the transactions contemplated hereby~~Merger Litigation, except with the prior written consent of the other parties hereto and (ii) the Acquiring Parties and Merger Sub agree to take (and to cause their Affiliates to take) promptly any and all steps necessary or reasonably advisable or as may be required by any Governmental Authority to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws or Investment Screening Laws that may be required by any Governmental Authority so as to enable the parties to consummate the transactions contemplated by this Agreement, including the Merger, the Non-Arriver Extraction and the ~~Arriver Sale as expeditiously as possible (and in any event at least five (5) Business Days prior~~ right to the Outside Date), including committing to and effecting, by consent decree, hold separate order, trust or otherwise, (A) selling, divesting, licensing or otherwise disposing of, or holding separate and agreeing to sell, divest, license or otherwise dispose of, any assets of the Company, the Acquiring Parties, Merger Sub or their respective Affiliates, (B) terminating, amending or assigning existing relationships and contractual rights and obligations, (C) requiring the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates to grant any right or commercial or other accommodation to, or enter into any material commercial contractual or other commercial relationship with, any Third Party and (D) imposing limitations consult on the ~~Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates~~ settlement with respect to how they own, retain, conduct or operate all or any portion of their respective businesses or assets (clauses (A) through (D) shall be referred to as “Remedy Actions”). Notwithstanding anything to the contrary set forth in this Section 6.3, the Acquiring Parties and such Merger ~~Sub shall not be required to commit or agree to~~Litigation, and the Company will in good faith take such comments into account, and, no such settlement shall ~~not~~ be ~~permitted~~ agreed to commit or agree to without the consent of the Acquiring Parties, any such Remedy Action contemplated by clause (ii) above to the extent any such Remedy Action contemplated by clause (ii) above (x) is not conditioned upon the consummation of the transactions contemplated by this Agreement or (y) would require, or cause to be taken, (1) any sale, divestiture, licensing or other disposal of, or other action with respect to, any assets or businesses of QUALCOMM Technology Licensing, (2) any sale, divestiture, licensing or other disposal of any assets or businesses of the Arriver Business, or any other action with respect to any assets or businesses of the Arriver Business, that would materially diminish or materially interfere with the benefits that QUALCOMM reasonably expects to receive from its ownership of the Arriver Business, (3) any sale or divestiture of any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company ~~or its Subsidiaries, that individually or in the aggregate, have a fair market value~~ without Parent’s prior written consent (~~measured at the time of~~ such ~~request using customary valuation methodologies~~ consent not to be ~~agreed by the parties hereto in good faith~~unreasonably withheld, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the economic impact determined with respect to any actions taken pursuant to the following clause (4), conditioned or (4) any other action (excluding sales or divestitures) with respect to any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a net negative economic impact (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the fair market value determined with respect to any actions taken pursuant to the foregoing clause (3delayed). (db) 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 inquiry from a Governmental Authority, including (i) promptly informing the other party of such inquiry, (ii) consulting in ~~advance~~ advance, and considering in good faith the other party’s views, before making any presentations or submissions to a Governmental Authority, (iii) giving the other party the opportunity to attend and participate in any substantive meetings or discussions with any Governmental Authority, to the extent not prohibited by such Governmental ~~Authority~~ Authority, and (iv) supplying each other with copies of all material correspondence, filings or communications between either party and any Governmental Authority with respect to this Agreement; provided that, notwithstanding anything in this Agreement to the contrary, the Acquiring Parties shall determine the strategy to be pursued for obtaining and lead the effort to obtain all necessary actions or nonactions and consents from Governmental Authorities, including any related litigation and Remedy Actions, pursuant to any Antitrust Law in connection with the transactions contemplated by this Agreement, and the Company shall take all reasonably requested actions to support the Acquiring Parties in connection therewith. Notwithstanding anything to the contrary contained in this Agreement, the Acquiring Parties shall consult with the Company and consider in good faith the views of the Company in connection with all material communications with a Governmental Authority and strategy regarding the Antitrust Laws. (e) The Company and the Acquiring Parties, in their respective sole and absolute discretion, may (x) redact materials as necessary to comply with contractual arrangements address reasonable attorney client or other privilege or confidentiality concerns, exclude any information relating to Company valuation and similar matters relating to the transactions contemplated herein, and (y) designate any competitively sensitive material as “Outside Counsel Only Material” such that such materials and the information contained therein shall be given only to the outside counsel of the recipient and will not be disclosed to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel. (f) The Acquiring Parties and Merger Sub shall not, and shall not permit any of their controlled Affiliates to, (i) acquire or agree to acquire by merging or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests or (ii) take or agree to take any other action (including entering into or agreeing to enter into any material license, joint venture or other transaction), in each case that would reasonably be expected to (A) impose any material delay in the obtaining of, or increase the risk materially of not obtaining, approval from, or avoiding an Action by, any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period, (B) materially increase the risk of any Governmental Authority entering an Order prohibiting the consummation of the transactions contemplated by this Agreement or (C) otherwise materially delay or prevent the consummation of the transactions contemplated by this Agreement.

Appears in 1 contract

Samples: Merger Agreement (Compuware Corp)

Appropriate Action; Consents; Filings. (a) ~~In accordance with the terms and subject to the conditions~~ Each of ~~this Agreement (including Section 6.5),~~ the parties ~~hereto~~ agrees that the only notifications that will ~~use their respective reasonable best efforts to take,~~ be filed under applicable antitrust or ~~cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate~~ competition Laws in connection with ~~the other parties in doing, all things necessary, proper or advisable to consummate and make effective~~ the transactions contemplated hereby ~~and to cause the conditions to the Merger set forth~~ are notifications in Article VII to be satisfied as expeditiously as practicable (and in any event at least five (5) Business Days prior to the Outside Date), including using reasonable best efforts to accomplish the following: (i) the ~~obtaining~~ United States of ~~all necessary or advisable actions or non-actions~~America, ~~waivers~~(ii) Germany, ~~Consents~~ (iii) Austria, and ~~approvals from Governmental Authorities necessary or advisable~~ (iv) Russia, as well as, subject to the provisions in ~~connection with~~ Section 4.04(b), (v) Australia, and (vi) New Zealand (the ~~consummation of~~ “Agreed Notifications”). The parties agree that they will not notify the transactions contemplated by this ~~Agreement~~Agreement in any jurisdiction, other than the Agreed Notifications, including in jurisdictions in which a merger control filing or other notification in respect of antitrust or competition Laws is voluntary or optional, and will also not seek informal guidance from the ~~Merger, the Non-Arriver Extraction and the Arriver Sale and the making of all necessary or advisable registrations and filings (including filings~~ Antitrust Authorities in any other jurisdiction with ~~Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary or advisable~~ respect to ~~obtain an approval from, or to avoid any Action by, any Governmental Authority in connection with the consummation of~~ the transactions contemplated by this Agreement, including the Merger, the Non-Arriver Extraction and the Arriver Sale, (ii) the obtaining of all other necessary consents, approvals or waivers from Third Parties (provided that none of the Company, the Acquiring Parties or Merger Sub shall be required to make or agree to make any payment or accept any material conditions or obligations with respect thereto, except as expressly set forth in Section 6.10(c)), including in respect of the Non-Arriver Extraction and the Arriver Sale, (iii) the defending of any Actions, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed and (iv) the execution and delivery of any additional instruments necessary to consummate the Merger and any other transactions to be performed or consummated by such party in accordance with the terms of this Agreement and to carry out fully the purposes of this Agreement. (b) ~~Each of the parties hereto shall promptly (~~Purchaser and, ~~in the case of filings~~ where required ~~under the HSR Act~~by Law, ~~in no event later than fifteen~~ Seller shall at their own expense make each Agreed Notification within ten (1510) Business Days ~~following~~ after receipt to local counsels’ reasonable satisfaction of all of Seller’s information reasonably necessary to proceed with the ~~date hereof~~relevant Agreed Notification (“Filing Date”); provided, however, that Purchaser shall be responsible for any filing or other fees payable to any Agreed Antitrust Authority in connection with such Agreed Notifications. Notwithstanding Section 4.04(a) and the immediately preceding sentence of this Section 4.04(b): (i) for the purpose of fulfilling the condition in Section 7.01(a)(ii) with regard to New Zealand, Purchaser shall submit, on or prior to the Filing Date, a courtesy letter to the New Zealand Commerce Commission (“NZCC”) informing the NZCC of the transactions contemplated hereby and the parties shall make ~~and not withdraw any applicable filings under~~ commercially reasonable efforts to achieve satisfaction of the ~~HSR Act~~condition set out in Section 7.01(a)(ii)(x), and ~~thereafter make~~ only if the indication referred to in Section 7.01(a)(ii)(x) is not received from the NZCC to the parties’ mutual reasonable satisfaction within fourteen (14) working days from the submission of such courtesy letter to the NZCC, or any ~~other applications and filings required~~ longer period reasonably agreed by the parties in light of potential requests by the NZCC for additional information, then Purchaser shall either immediately waive the condition in 7.01(a)(ii) or ~~advisable~~ immediately take all reasonable steps to promptly lodge an application for clearance under ~~the Antitrust Laws or Investment Screening Laws~~ Part V of the ~~jurisdictions set forth on Section 6.3(a)~~ Commerce Act of New Zealand 1986 for the ~~Company Disclosure Letter with respect to~~ implementation of the transactions contemplated hereby, ~~including the Merger, the Non-Arriver Extraction~~ and ~~the Arriver Sale,~~ (ii) ~~comply at~~ for the ~~earliest practicable date~~ purpose of fulfilling the condition in Section 7.01(a)(iii) with ~~any request under~~ regard to Australia, Purchaser shall, on or prior to the ~~HSR Act for additional information~~ Filing Date, submit a courtesy letter to the Australian Competition & Consumer Commission (~~including responding to any~~ “~~second request~~ACCC”~~), documents or other materials received by such party from~~ ) informing the ~~U.S. Federal Trade Commission, the Antitrust Division~~ ACCC of ~~the U.S. Department of Justice or from any other Governmental Authority under any Antitrust Laws or Investment Screening Laws in respect of any such filings with respect to~~ the transactions contemplated ~~hereby, including the Merger, the Non-Arriver Extraction~~ hereby and the ~~Arriver Sale~~ parties shall make commercially reasonable efforts to achieve satisfaction of the condition set out in Section 7.01(a)(iii)(x) and only if the condition in Section 7.01(a)(iii)(x) is not satisfied within fourteen (~~iii~~14) ~~act~~ working days from the submission of the courtesy letter to the ACCC, or any longer period reasonably agreed by the parties in ~~good faith and reasonably cooperate with each other party~~ light of potential requests by the ACCC for additional information, Purchaser shall either immediately waive the condition in ~~connection with any such filings (including, if requested by another party, considering in good faith~~ Section 7.01(a)(iii) or promptly take all reasonable ~~additions, deletions or changes suggested by~~ steps to make an application for informal clearance for the other party in connection therewith) and in connection with resolving any investigation or other inquiry of such agency or other Governmental Authority under any Antitrust Laws and Investment Screening Laws. In taking the foregoing actions, each implementation of the Company and the Acquiring Parties shall act reasonably and as promptly as practicable. Notwithstanding anything in this Agreement to the contrary, obtaining any Third Party Consents or waivers pursuant to Section 6.3(a)(ii) above or otherwise, including any Consents required in connection transactions contemplated hereby with the ~~Non-Arriver Extraction or the Arriver Sale, shall not be a condition to the obligations of any party to consummate the Merger~~ACCC. (c) Subject to the terms hereof, the parties agree to cooperate and to use their commercially reasonable efforts to obtain, as promptly as practicable following the date of this Agreement, all assurances or approvals sought pursuant to the Agreed Notifications and to respond to any Agreed Antitrust Authority’s request for information thereunder. Without limiting ~~anything in this Section 6.3 (i) none~~ the generality of the ~~parties hereto or their respective Affiliates shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not~~ foregoing, Purchaser agrees to consummate the transactions contemplated hereby, except with the prior written consent of the other parties hereto and (ii) the Acquiring Parties and Merger Sub agree to take (and to cause their Affiliates to take) promptly any and all steps necessary or reasonably advisable or as may be required by any Governmental Authority use its commercially reasonable efforts to avoid or eliminate each and every impediment ~~and obtain all Consents~~ under any ~~Antitrust Laws~~ antitrust or ~~Investment Screening Laws~~ competition Law that may be ~~required~~ asserted by any ~~Governmental~~ Agreed Antitrust Authority or any other party so as avoid the issuance of a Request for Additional Information and Documentary Material under the HSR Act, the opening of phase II or in-depth examinations (where applicable) or a statement of objections or prohibition order (or equivalents) by any Agreed Antitrust Authority, and to obtain all required approvals or statements of non-objection by the Agreed Antitrust Authorities so as to enable the parties to ~~consummate~~ close the transactions contemplated hereby as promptly as practicable and in any case prior to the Termination Date. (d) Notwithstanding Section 4.04(c), except as otherwise agreed between the parties, nothing herein shall require Purchaser to: (a) sell, license, waive any rights in or to, or to dispose of, divest of or otherwise hold separate or in trust any part of the assets or business of Purchaser, the Business, the Target Entities or the Acquired Assets; (b) otherwise enter into any type of agreement, arrangement or undertaking, including a consent decree, with any Person (including any Agreed Antitrust Authority); or (c) litigate against any Person (including any Agreed Antitrust Authority) or otherwise oppose any motion or action for a temporary, preliminary, or permanent injunction against the transactions contemplated by this Agreement. (e) Subject to appropriate confidentiality protections, (i) Purchaser will permit Seller to review in advance drafts of each notification to be made to the Agreed Antitrust Authorities (including courtesy letters to be sent to the ~~Merger, the Non-Arriver Extraction~~ NZCC and the ~~Arriver Sale as expeditiously as possible (~~ACCC) and will consult with counsel for Seller, consider in ~~any event at least five (5) Business Days prior to~~ good faith the ~~Outside Date)~~views of Seller and incorporate Seller’s reasonable comments, including committing to and effecting, by consent decree, hold separate order, trust or otherwise, (A) selling, divesting, licensing or otherwise disposing of, or holding separate and agreeing to sell, divest, license or otherwise dispose of, any assets of the Company, the Acquiring Parties, Merger Sub or their respective Affiliates, (B) terminating, amending or assigning existing relationships and contractual rights and obligations, (C) requiring the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates to grant any right or commercial or other accommodation to, or enter into any material commercial contractual or other commercial relationship with, any Third Party and (D) imposing limitations on the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates with respect to how they own, retain, conduct or operate all or any portion of their respective businesses or assets (clauses (A) through (D) shall be referred to as “Remedy Actions”). Notwithstanding anything to the contrary set forth in this Section 6.3, the Acquiring Parties and Merger Sub shall not be required to commit or agree to, and the Company shall not be permitted to commit or agree to without the consent of the Acquiring Parties, any such Remedy Action contemplated by clause (ii) above to the extent any such Remedy Action contemplated by clause (ii) above (x) is not conditioned upon the consummation of the transactions contemplated by this Agreement or (y) would require, or cause to be taken, (1) any sale, divestiture, licensing or other disposal of, or other action with respect to, any assets or businesses of QUALCOMM Technology Licensing, (2) any sale, divestiture, licensing or other disposal of any assets or businesses of the Arriver Business, or any other action with respect to any assets or businesses of the Arriver Business, that would materially diminish or materially interfere with the benefits that QUALCOMM reasonably expects to receive from its ownership of the Arriver Business, (3) any sale or divestiture of any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a fair market value (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third each party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the economic impact determined with respect to any actions taken pursuant to the following clause (4), or (4) any other action (excluding sales or divestitures) with respect to any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a net negative economic impact (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the fair market value determined with respect to any actions taken pursuant to the foregoing clause (3). (d) 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 inquiry from a Governmental Authority, including (i) promptly ~~informing~~ notify the other party of ~~such inquiry~~any written or oral communication to that party from any Antitrust Authority and, ~~(ii) consulting in advance before making any presentations or submissions~~ subject to ~~a Governmental Authority~~Law, ~~(iii) giving~~ permit the other party ~~the opportunity~~ to ~~attend and participate~~ review in advance any ~~substantive meetings or discussions with~~ proposed written communication to any ~~Governmental Authority, to the extent not prohibited by~~ such ~~Governmental~~ Antitrust Authority and (iv) supplying each other with copies of all material correspondence, filings or communications between either party and any Governmental Authority with respect to this Agreement; provided that, notwithstanding anything in this Agreement to the contrary, the Acquiring Parties shall determine the strategy to be pursued for obtaining and lead the effort to obtain all necessary actions or nonactions and consents from Governmental Authorities, including any related litigation and Remedy Actions, pursuant to any Antitrust Law in connection with the transactions contemplated by this Agreement, and the Company shall take all reasonably requested actions to support the Acquiring Parties in connection therewith. Notwithstanding anything to the contrary contained in this Agreement, the Acquiring Parties shall will consult with counsel for the ~~Company and~~ other party, consider in good faith the views of the ~~Company in connection~~ other and incorporate the other party’s reasonable comments, (iii) each party will furnish the other party promptly with copies of all ~~material~~ correspondence, filings and written communications with ~~a Governmental~~ any Antitrust Authority ~~and strategy regarding the Antitrust Laws. (e) The Company and the Acquiring Parties, in their respective sole and absolute discretion, may (x) redact materials as necessary~~ with respect to comply with contractual arrangements address reasonable attorney client or other privilege or confidentiality concerns, exclude any information relating to Company valuation and similar matters relating to the transactions contemplated herein, and (y) designate any competitively sensitive material as “Outside Counsel Only Material” such that such materials and the information contained therein shall be given only to the outside counsel of the recipient and will not be disclosed to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel. (f) The Acquiring Parties and Merger Sub shall not, and shall not permit any of their controlled Affiliates to, (i) acquire or agree to acquire by merging or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests or (ii) take or agree to take any other action (including entering into or agreeing to enter into any material license, joint venture or other transaction), in each case that would reasonably be expected to (A) impose any material delay in the obtaining of, or increase the risk materially of not obtaining, approval from, or avoiding an Action by, any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the ~~expiration or termination~~ transactions contemplated hereby, and (iv) each party shall inform the other of any ~~applicable waiting period~~meetings scheduled with any Antitrust Authority and afford the other the possibility to attend such meeting; provided, however, that if either Seller or Purchaser believes that any such communication to or from an Antitrust Authority contains (Bor in the case of a meeting is likely to involve discussion of) ~~materially increase~~ commercially sensitive information that it is unwilling to provide to the ~~risk~~ other party, it will be sufficient for Seller or Purchaser, as the case may be, to provide a copy of ~~any Governmental Authority entering~~ such communication (or an ~~Order prohibiting~~ opportunity to attend such meeting) to the ~~consummation of the transactions contemplated by this Agreement or (C) otherwise materially delay or prevent the consummation of the transactions contemplated by this Agreement~~other party’s outside counsel.

Appears in 1 contract

Samples: Stock and Asset Purchase Agreement (Albany International Corp /De/)

Appropriate Action; Consents; Filings. (a) ~~In accordance with~~ From the ~~terms~~ date hereof until the earlier of the Closing and ~~subject to~~ the ~~conditions~~ termination of this Agreement ~~(including~~ pursuant to Section ~~6.5)~~10.1, each of the parties ~~hereto will~~ (other than the Equityholder Representative) to this Agreement shall use ~~their respective~~ commercially reasonable ~~best~~ efforts to (i) take, or cause to be taken, all ~~actions~~reasonably necessary action, and to do, or cause to be done, ~~and to assist and cooperate with the other parties in doing,~~ all things ~~necessary, proper~~ reasonably necessary under Law or ~~advisable~~ otherwise to consummate and make effective the transactions contemplated ~~hereby~~ by this Agreement and to ~~cause the conditions~~ satisfy each condition to the ~~Merger set forth in Article VII~~ obligations of the other Party hereto as promptly as practicable, including approving and executing any resolutions, documents and instruments reasonably requested by such other Party to effectuate the transactions contemplated hereby, (ii) obtain from any Governmental Entities any consents required to be ~~satisfied as expeditiously as practicable (and in any event at least five (5) Business Days prior to~~ obtained or made by Purchaser, Equityholders or the Outside Date), including using reasonable best efforts to accomplish the following: (i) the obtaining of all necessary or advisable actions or non-actions, waivers, Consents and approvals from Governmental Authorities necessary or advisable Company in connection with the authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated by herein, and (iii) within ten (10) Business Days from the execution of this Agreement, ~~including the Merger, the Non-Arriver Extraction and the Arriver Sale and the making of~~ make all reasonably necessary or advisable registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary or advisable to obtain an approval from, or to avoid any Action by, any Governmental Authority in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, the Non-Arriver Extraction and the Arriver Sale, (ii) the obtaining of all other necessary consents, approvals or waivers from Third Parties (provided that none of the Company, the Acquiring Parties or Merger Sub shall be required to make or agree to make any payment or accept any material conditions or obligations with respect thereto, except as expressly set forth in Section 6.10(c)), including in respect of the Non-Arriver Extraction and the Arriver Sale, (iii) the defending of any Actions, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed and (iv) the execution and delivery of any additional instruments necessary to consummate the Merger and any other transactions to be performed or consummated by such party in accordance with the terms of this Agreement and to carry out fully the purposes of this Agreement. (b) Each of the parties hereto shall promptly (and, in the case of filings required under the HSR Act, in no event later than fifteen (15) Business Days following the date hereof) (i) make and not withdraw any applicable filings under the HSR Actfilings, and thereafter make any other applications and filings required or advisable under the Antitrust Laws or Investment Screening Laws of the jurisdictions set forth on Section 6.3(a) of the Company Disclosure Letter with respect to the transactions contemplated herebysubmissions, including the Merger, the Non-Arriver Extraction and the Arriver Sale, (ii) comply at the earliest practicable date with any request under the HSR Act for additional information (including responding to any “second request”), documents or other materials received by such party from the U.S. Federal Trade Commission, the Antitrust Division of the U.S. Department of Justice or from any other Governmental Authority under any Antitrust Laws or Investment Screening Laws in respect of any such filings with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale and (iii) act in good faith and reasonably cooperate with each other party in connection with any such filings (including, if requested by another party, considering in good faith all reasonable additions, deletions or changes suggested by the other party in connection therewith) and in connection with resolving any investigation or other inquiry of such agency or other Governmental Authority under any Antitrust Laws and Investment Screening Laws. In taking the foregoing actions, each of the Company and the Acquiring Parties shall act reasonably and as promptly as practicable. Notwithstanding anything in this Agreement to the contrary, obtaining any Third Party Consents or waivers pursuant to Section 6.3(a)(ii) above or otherwise, including any Consents required in connection with the Non-Arriver Extraction or the Arriver Sale, shall not be a condition to the obligations of any party to consummate the Merger. (c) Without limiting anything in this Section 6.3 (i) none of the parties hereto or their respective Affiliates shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby, except with the prior written consent of the other parties hereto and (ii) the Acquiring Parties and Merger Sub agree to take (and to cause their Affiliates to take) promptly any and all steps necessary or reasonably advisable or as may be required by any Governmental Authority to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws or Investment Screening Laws that may be required by any Governmental Authority so as to enable the parties to consummate the transactions contemplated by this Agreement, including the Merger, the Non-Arriver Extraction and the Arriver Sale as expeditiously as possible (and in any event at least five (5) Business Days prior to the Outside Date), including committing to and effecting, by consent decree, hold separate order, trust or otherwise, (A) selling, divesting, licensing or otherwise disposing of, or holding separate and agreeing to sell, divest, license or otherwise dispose of, any assets of the Company, the Acquiring Parties, Merger Sub or their respective Affiliates, (B) terminating, amending or assigning existing relationships and contractual rights and obligations, (C) requiring the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates to grant any right or commercial or other accommodation to, or enter into any material commercial contractual or other commercial relationship with, any Third Party and (D) imposing limitations on the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates with respect to how they own, retain, conduct or operate all or any portion of their respective businesses or assets (clauses (A) through (D) shall be referred to as “Remedy Actions”). Notwithstanding anything to the contrary set forth in this Section 6.3, the Acquiring Parties and Merger Sub shall not be required to commit or agree to, and the Company shall not be permitted to commit or agree to without the consent of the Acquiring Parties, any such Remedy Action contemplated by clause (ii) above to the extent any such Remedy Action contemplated by clause (ii) above (x) is not conditioned upon the consummation of the transactions contemplated by this Agreement or (y) would require, or cause to be taken, (1) any sale, divestiture, licensing or other disposal of, or other action with respect to, any assets or businesses of QUALCOMM Technology Licensing, (2) any sale, divestiture, licensing or other disposal of any assets or businesses of the Arriver Business, or any other action with respect to any assets or businesses of the Arriver Business, that would materially diminish or materially interfere with the benefits that QUALCOMM reasonably expects to receive from its ownership of the Arriver Business, (3) any sale or divestiture of any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a fair market value (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the economic impact determined with respect to any actions taken pursuant to the following clause (4), or (4) any other action (excluding sales or divestitures) with respect to any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a net negative economic impact (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the fair market value determined with respect to any actions taken pursuant to the foregoing clause (3). (d) 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 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 substantive meetings or discussions 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 either party and any Governmental Authority with respect to this Agreement~~; provided that~~, ~~notwithstanding anything in this Agreement~~ required under any Law. For the avoidance of doubt, Purchaser and the Company shall use commercially reasonable efforts to the contrary, the Acquiring Parties shall determine the strategy to be pursued for obtaining and lead the effort to obtain all necessary actions or nonactions and consents from Governmental Authorities, including any related litigation and Remedy Actions, pursuant to any Antitrust Law cooperate with each other in connection with the ~~transactions contemplated by this Agreement~~making of all filings referenced in clause (iii) above, ~~and the Company shall take~~ including providing copies of all ~~reasonably requested actions to support the Acquiring Parties in connection therewith. Notwithstanding anything~~ non-proprietary documents to the ~~contrary contained in this Agreement, the Acquiring Parties~~ non-filing party and its advisors prior to filing and Purchaser shall consult with ~~the Company~~ and consider in good faith the views of the Company in connection therewith. Each such Party shall cooperate fully with the other Party and its Affiliates in connection with taking the actions, seeking the consents and submitting the filings contemplated by this Section 7.5(a). Without limiting the generality of the foregoing, each Party (other than the Equityholder Representative) shall provide to the other (or the other’s respective advisors) upon request copies of all ~~material communications with a~~ correspondence between such Party and any Governmental Authority and strategy regarding the Antitrust Laws. (e) The Company and the Acquiring Parties, in their respective sole and absolute discretion, may (x) redact materials as necessary to comply with contractual arrangements address reasonable attorney client or other privilege or confidentiality concerns, exclude any information relating to Company valuation and similar matters Entity relating to the transactions contemplated ~~herein~~by this Agreement. The parties may, as they deem advisable and ~~(y)~~ necessary, designate any competitively sensitive ~~material~~ materials provided to the other under this Section 7.5(a) as “~~Outside Counsel Only Material~~outside counsel only.” ~~such that such~~ Such materials and the information contained therein shall be given only to ~~the~~ outside counsel of the recipient and will not be disclosed by such outside counsel to employees, ~~officers~~ officers, or directors of the recipient ~~unless express permission is obtained in~~ without the advance ~~from the source~~ written consent of the ~~materials or its legal counsel. (f) The Acquiring Parties and Merger Sub shall not~~Party providing such materials. In addition, to the extent reasonably practicable, all discussions, telephone calls, and ~~shall not permit any of their controlled Affiliates to, (i) acquire or agree to acquire by merging or consolidating with, or by purchasing~~ meetings with a portion of the assets of or equity in, or by any other manner, any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests or (ii) take or agree to take any other action (including entering into or agreeing to enter into any material license, joint venture or other transaction), in each case that would reasonably be expected to (A) impose any material delay in the obtaining of, or increase the risk materially of not obtaining, approval from, or avoiding an Action by, any Governmental ~~Authority necessary to consummate~~ Entity regarding the transactions contemplated by this Agreement shall include representatives of both parties. Subject to Law, the parties will consult and cooperate with each other in connection with any analyses, appearances, presentations, memoranda, briefs, arguments, and proposals made or submitted to any Governmental Entity regarding the transactions contemplated by this Agreement by or on behalf of any Party. (b) Notwithstanding the foregoing, (x) Purchaser shall not be required to: (A) (1) sell, divest, hold separate, license, cause a third party to acquire, or otherwise dispose of, any Subsidiary, operations, divisions, businesses, product lines, customers or assets of Purchaser, its Affiliates or the ~~expiration~~ Company contemporaneously with or after the Closing and regardless as to whether a third party purchaser has been identified or approved prior to the Closing, (2) accept any operational restriction or take or commit to take such other actions that may limit Purchaser’s, its Affiliates’ or the Company’s freedom of action with respect to, or its ability to retain, one or more of its operations, divisions, businesses, products lines, customers or assets, or (3) propose, negotiate, offer or enter into any Judgment, consent decree, hold separate order or other agreement to effectuate any of the foregoing; or (B) terminate, amend or otherwise modify any Contract or other business relationship as may be required to obtain any necessary clearance of any Governmental Entity or to obtain termination of any applicable waiting ~~period~~period under any applicable antitrust Laws; or (C) defend, contest or resist any action or proceeding, whether judicial or administrative, or to take any action to have vacated, lifted, reversed or overturned any Judgment, in connection with the transactions contemplated by this Agreement; and (By) ~~materially increase~~ no Party hereto will agree to extend any waiting period or enter into any agreement or understanding with any Governmental Entity without the ~~risk~~ prior written consent of the other Party (which consent shall not be unreasonably withheld or delayed). (c) From the date hereof until the earlier of the Closing and the termination of this Agreement pursuant to Section 10.1, the Company and Purchaser shall use commercially reasonable efforts to give all notices to, and obtain all waivers (including waivers of rights under any Contract with the Company to terminate, amend, accelerate or otherwise modify such Contract), consents and approvals from, all third parties to or from whom such notice, waiver, consent or approval is required as a result of this Agreement or the transactions contemplated hereby under any Contract of the Company. (d) From the date hereof until the earlier of the Closing, or the termination of this Agreement pursuant to Section 10.1, the Company shall promptly notify Purchaser in writing, or Purchaser shall notify Equityholder Representative in writing, as the case may be, of any pending or threatened Legal Proceeding by any Governmental ~~Authority entering an Order prohibiting~~ Entity or any other Person of which it becomes aware (i) challenging or seeking damages in connection with the transactions contemplated hereby, or (ii) seeking to restrain or prohibit the consummation of the transactions contemplated ~~by this Agreement~~ hereby or ~~(C)~~ otherwise ~~materially delay~~ limit the right of Purchaser to own or ~~prevent the consummation~~ operate all or any portion of the ~~transactions contemplated by this Agreement~~tangible or intangible assets of the Company or all or a portion of the Business.

Appears in 1 contract

Samples: Merger Agreement (Veradigm Inc.)

Appropriate Action; Consents; Filings. ~~(a) In accordance with the terms and subject to the conditions of this Agreement (including Section 6.5), the~~ 6.6.1 The parties hereto will use their respective reasonable best efforts to ~~take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to~~ consummate and make effective the ~~transactions contemplated hereby~~ Transactions and to cause the conditions to the ~~Merger~~ Closing set forth in Article VII to be ~~satisfied as expeditiously as practicable (and in any event at least five (5) Business Days prior to the Outside Date)~~satisfied, including ~~using reasonable best efforts to accomplish the following:~~ (i) the obtaining of all necessary ~~or advisable~~ actions or ~~non-actions~~nonactions, ~~waivers, Consents~~ consents and approvals from Governmental Authorities or other Persons necessary ~~or advisable~~ in connection with the consummation of the ~~transactions contemplated by this Agreement~~Transactions, ~~including the Merger, the Non-Arriver Extraction and the Arriver Sale~~ and the making of all necessary ~~or advisable~~ registrations and filings (including filings with Governmental ~~Authorities,~~ Authorities if any) and the taking of all reasonable steps as may be necessary ~~or advisable~~ to obtain an approval from, or to avoid ~~any~~ an Action by, any Governmental Authority or other Persons necessary in connection with the consummation of the ~~transactions contemplated by this Agreement, including the Merger, the Non-Arriver Extraction~~ Transactions; and ~~the Arriver Sale,~~ (ii) the obtaining of all other necessary consents, approvals or waivers from Third Parties (provided that none of the Company, the Acquiring Parties or Merger Sub shall be required to make or agree to make any payment or accept any material conditions or obligations with respect thereto, except as expressly set forth in Section 6.10(c)), including in respect of the Non-Arriver Extraction and the Arriver Sale, (iii) the defending of any lawsuits or other Actions, whether judicial or administrative, challenging this Agreement or the consummation of the transactions ~~contemplated hereby~~performed or consummated by such party in accordance with the terms of this Agreement, including the ~~Merger~~Exchange, ~~the Non-Arriver Extraction and the Arriver Sale~~ including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed and (iv) the execution and delivery of any additional instruments necessary to consummate the Merger and any other transactions to be performed or consummated by such party in accordance with the terms of this Agreement and to carry out fully the purposes of this Agreementreversed. ~~(b)~~ 6.6.2 Each of the parties hereto shall promptly (~~and, in the case of filings required under the HSR Act,~~ in no event later than ~~fifteen~~ twenty (1520) Business Days following the date ~~hereof) (i~~that this Agreement is executed) make ~~and not withdraw any applicable filings under the HSR Act~~its respective filings, and thereafter make any other ~~applications and filings~~ required ~~or advisable~~ submissions under the ~~Antitrust Laws or Investment Screening Laws of the jurisdictions set forth on Section 6.3(a) of the Company Disclosure Letter~~ HSR Act with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale, (ii) comply at the earliest practicable date with any request under the HSR Act for additional information (including responding to any “second request”), documents or other materials received by such party from the U.S. Federal Trade Commission, the Antitrust Division of the U.S. Department of Justice or from any other Governmental Authority under any Antitrust Laws or Investment Screening Laws in respect of any such filings with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale and (iii) act in good faith and reasonably cooperate with each other party in connection with any such filings (including, if requested by another party, considering in good faith all reasonable additions, deletions or changes suggested by the other party in connection therewith) and in connection with resolving any investigation or other inquiry of such agency or other Governmental Authority under any Antitrust Laws and Investment Screening Laws. In taking the foregoing actions, each of the Company and the Acquiring Parties shall act reasonably and as promptly as practicable. Notwithstanding anything in this Agreement to the contrary, obtaining any Third Party Consents or waivers pursuant to Section 6.3(a)(ii) above or otherwise, including any Consents required in connection with the Non-Arriver Extraction or the Arriver Sale, shall not be a condition to the obligations of any party to consummate the MergerTransactions. ~~(c) Without limiting anything in this Section 6.3 (i) none of the parties hereto or their respective Affiliates~~ 6.6.3 LMC and Parent shall ~~extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not~~ cooperate to consummate the transactions contemplated hereby, except with the prior written consent of the other parties hereto and (ii) the Acquiring Parties and Merger Sub agree to take (and to cause their Affiliates to take) promptly any and all steps necessary or reasonably advisable or prepare such applications as may be ~~required by any Governmental Authority~~ necessary for submission to ~~avoid or eliminate each~~ the FCC in order to obtain the FCC Consent (the "FCC Applications"). LMC and every impediment and obtain all Consents under any Antitrust Laws or Investment Screening Laws that may be required by any Governmental Authority so as to enable the parties to consummate the transactions contemplated by this Agreement, including the Merger, the Non-Arriver Extraction and the Arriver Sale as expeditiously as possible Parent shall promptly (~~and~~ in ~~any~~ no event ~~at least five~~ later than twenty (520) Business Days ~~prior to~~ following the ~~Outside Date)~~date that this Agreement is executed) file the FCC Applications with the FCC, ~~including committing to~~ and ~~effecting~~the parties shall diligently take, ~~by consent decree, hold separate order, trust~~ or ~~otherwise, (A) selling, divesting, licensing or otherwise disposing~~ cooperate in the taking of, all necessary, desirable and proper actions, and provide any additional information, reasonably required or ~~holding separate~~ requested by the FCC. Each of LMC and agreeing to sell, divest, license or otherwise dispose of, any assets of the Company, the Acquiring Parties, Merger Sub or their respective Affiliates, (B) terminating, amending or assigning existing relationships and contractual rights and obligations, (C) requiring the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates to grant any right or commercial or other accommodation to, or enter into any material commercial contractual or other commercial relationship with, any Third Party and (D) imposing limitations on the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates with respect to how they own, retain, conduct or operate all or any portion of their respective businesses or assets (clauses (A) through (D) shall be referred to as “Remedy Actions”). Notwithstanding anything to the contrary set forth in this Section 6.3, the Acquiring Parties and Merger Sub shall Parent agrees not ~~be required to commit or agree~~ to, and ~~the Company~~ shall not be permitted to commit or agree to without the consent of the Acquiring Parties, any such Remedy Action contemplated by clause (ii) above to the extent any such Remedy Action contemplated by clause (ii) above (x) is not conditioned upon the consummation of the transactions contemplated by this Agreement or (y) would require, or cause to be taken, (1) any sale, divestiture, licensing or other disposal of, or other action with respect to, any assets or businesses of QUALCOMM Technology Licensing, (2) any sale, divestiture, licensing or other disposal of any assets or businesses of the Arriver Business, or any other action with respect to any assets or businesses of the Arriver Business, that would materially diminish or materially interfere with the benefits that QUALCOMM reasonably expects to receive from its ownership of the Arriver Business, (3) any sale or divestiture of any assets or businesses of QUALCOMM or permit any of its ~~Subsidiaries~~respective Subsidiaries to, take any action that would reasonably be expected to prevent or ~~with respect to any assets~~ materially delay or ~~businesses~~ impede receipt of the ~~Company~~ FCC Consent. 6.6.4 Each of LMC and Parent shall give (or shall cause its ~~Subsidiaries~~respective Subsidiaries to give) any notices to third parties, ~~that individually or in the aggregate~~and each of LMC and Parent shall use, ~~have a fair market value (measured at the time~~ and cause each of ~~such request using customary valuation methodologies~~ its Subsidiaries to ~~be agreed by the parties hereto in good faith~~use, ~~which may include an evaluation by a~~ its reasonable best efforts to obtain any third party ~~that is mutually selected~~ consents not covered by ~~the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the economic impact determined with respect~~ Sections 6.6.1, 6.6.2 and 6.6.3 above, necessary, proper or advisable to any actions taken pursuant to the following clause (4), or (4) any other action (excluding sales or divestitures) with respect to any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a net negative economic impact (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the fair market value determined with respect to any actions taken pursuant to the foregoing clause (3). (d) consummate Transactions. 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 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 substantive meetings or discussions 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 either party and any Governmental Authority with respect to this Agreement~~; provided that~~. No party hereto shall independently participate in any formal meeting with any Governmental Authority in respect of any such filings, ~~notwithstanding anything in this Agreement~~ submissions, investigation, or other inquiry without giving the other parties hereto prior notice of the meeting and, to the ~~contrary~~extent permitted by such Governmental Authority, the ~~Acquiring Parties shall determine~~ opportunity to attend and/or participate. 6.6.5 If any objections are asserted with respect to the strategy to be pursued for obtaining and lead the effort to obtain all necessary actions or nonactions and consents from Governmental Authorities, including any related litigation and Remedy Actions, pursuant to Transactions under any Antitrust Law or any Communications Regulation or if any suit is instituted by any Governmental Authority or any private party challenging any of the Transactions as violative of any Antitrust Law or Communications Regulation, the parties shall use their reasonable best efforts to resolve any such objections or challenge as such Governmental Authority or private party may have to such transactions under such law so as to permit consummation of the Transactions. In furtherance of the parties' obligations under this Section 6.6, LMC and Parent shall be required to (and, to the extent required by any Governmental Authority, shall cause their respective current and future Subsidiaries to), propose, negotiate, commit to and enter into one or more settlements, undertakings, conditions, consent decrees, stipulations and other agreements with or to one or more Governmental Authorities (each, a "Settlement") in connection with the ~~transactions~~ Transactions (including obtaining the requisite consent of such Governmental Authorities), including one or more Settlements that require LMC or Parent to restructure the operations of, or sell or otherwise divest or dispose of, its assets and/or the assets of its current and future Subsidiaries; provided, however, that (i) neither LMC nor any of its Subsidiaries shall be required to take (or commit to take) any of the foregoing actions, or any other action contemplated by this Agreement, and the Company shall take all reasonably requested actions to support the Acquiring Parties in connection therewith. Notwithstanding anything to the contrary contained in this Agreement, the Acquiring Parties shall consult with the Company and consider in good faith the views of the Company in connection with all material communications with a Governmental Authority and strategy regarding the Antitrust Laws. (e) The Company and the Acquiring Parties, in their respective sole and absolute discretion, may (x) redact materials as necessary to comply with contractual arrangements address reasonable attorney client or other privilege or confidentiality concerns, exclude any information relating to Company valuation and similar matters relating to the transactions contemplated herein, and (y) designate any competitively sensitive material as “Outside Counsel Only Material” such that such materials and the information contained therein shall be given only to the outside counsel of the recipient and will not be disclosed to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel. (f) The Acquiring Parties and Merger Sub shall not, and shall not permit any of their controlled Affiliates toSection 6.6, (iA) ~~acquire or agree to acquire by merging or consolidating with, or by purchasing a portion of the assets of or equity in, or by~~ if any other manner, any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests or (ii) take or agree to take any other action (including entering into or agreeing to enter into any material license, joint venture or other transaction), in each case that such actions would reasonably be expected to have a material adverse effect on the business or operations of LMC and its Subsidiaries or any of their cable, television (Aincluding video or electronic home shopping) ~~impose any material delay in the obtaining of~~or satellite businesses, or ~~increase~~ (B) if the ~~risk materially~~ Board of ~~not obtaining~~Directors of LMC determines, ~~approval from~~in good faith, that the taking of such actions would be reasonably likely to have a Material Adverse Effect on Splitco (without giving effect, for purposes of this Section 6.6.5, to the exception contained in clause (i) of the second sentence of the definition of "Material Adverse Effect" relating to the performance of this Agreement), (ii) neither Parent nor any of its Subsidiaries shall be required to take (or ~~avoiding an Action by,~~ commit to take) any ~~Governmental Authority necessary to consummate~~ of the ~~transactions~~ foregoing actions or any other action contemplated by this ~~Agreement or~~ Section 6.6, if the ~~expiration or termination~~ Board of ~~any applicable waiting period~~Directors of Parent determines, in good faith, that the taking of such actions would be reasonably expected to have a Material Adverse Effect on Splitco (Bwithout giving effect, for purposes of this Section 6.6.5, to the exception contained in clause (i) ~~materially increase the risk of any Governmental Authority entering an Order prohibiting the consummation~~ of the ~~transactions~~ second sentence of the definition of "Material Adverse Effect" relating to the performance of this Agreement), without the prior written consent of LMC, and (iii) neither Parent nor any of its Subsidiaries shall be required to take (or commit to take) any of the foregoing actions, or any other action contemplated by this ~~Agreement~~ Section 6.6, if any such actions would reasonably be expected to have a material adverse effect on the business or ~~(C) otherwise materially delay~~ operations of Parent and its Subsidiaries or ~~prevent the consummation~~ any of ~~the transactions contemplated by this Agreement~~their cable programming or television businesses.

Appears in 1 contract

Samples: Share Exchange Agreement (News Corp)

Appropriate Action; Consents; Filings. (a) ~~In accordance~~ Each of the parties hereto shall (i) make promptly its respective filings, and thereafter make any other required submissions under the HSR Act with ~~the terms and subject~~ respect to the ~~conditions of this Agreement~~ transactions contemplated herein and (~~including Section 6.5~~ii) make promptly filings with or applications to the FCC with respect to the transactions contemplated herein (the "FCC Application")~~, the~~ . The parties hereto will use their respective reasonable best efforts to ~~take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to~~ consummate and make effective the transactions contemplated ~~hereby~~ herein and to cause the conditions to the Forward Merger and, if a Restructuring Trigger has occurred, the Reverse Merger, in each case as set forth in Article VII to be satisfied ~~as expeditiously as practicable~~ (~~and in any event at least five (5) Business Days prior to the Outside Date),~~ including using reasonable best efforts to ~~accomplish the following: (i) the obtaining of~~ obtain all ~~necessary or advisable actions or non-actions~~licenses, permits, consents, approvals, authorizations, waivers, ~~Consents~~ qualifications and ~~approvals from~~ orders of Governmental Authorities as are necessary ~~or advisable in connection with~~ for the consummation of the transactions contemplated ~~by this Agreement~~herein), ~~including the Merger, the Non-Arriver Extraction~~ and will do so in a manner designed to obtain such regulatory clearance and the ~~Arriver Sale~~ satisfaction of such conditions as expeditiously as reasonably possible; provided, however, that Buyer and FTH shall have the ~~making~~ right to make all decisions concerning any divestiture commitments necessary to comply with the FCC's multiple ownership rules set forth at 47 C.F.R. Section 73.3555 as in effect on the date of ~~all necessary or advisable registrations~~ this Agreement (the "FCC Multiple Ownership Rules"); provided that Buyer and ~~filings (including filings~~ FTH shall regularly consult with ~~Governmental Authorities~~the Company during the processes referred to in this Section 6.3 and consider in good faith the views of the Company with respect thereto; and provided, ~~if any) and the taking of all reasonable steps as may be necessary or advisable to obtain an approval from~~further, ~~or to avoid any Action by~~that, ~~any Governmental Authority~~ in connection with the ~~consummation~~ Merger, Buyer and FTH shall not seek a waiver of Section 73.3555 of the ~~transactions contemplated~~ FCC's rules except for a temporary waiver of subsections (b) and (e) thereof for a period not to exceed twelve months from the Closing Date for television divestitures required in order to obtain the FCC Consent (as defined in Section 7.1(e) hereof) and, with respect to subsection (d) thereof, in the FCC Application when it is filed, Buyer will (1) maintain that no waiver is required to permit it to own a newspaper and two television stations in the New York market, and (2) request in the alternative, if that position is rejected or a permanent waiver is not issued by ~~this Agreement~~the FCC, ~~including~~ a temporary waiver to hold two television stations and a newspaper for a period not to extend beyond the ~~Merger,~~ date which is the ~~Non-Arriver Extraction~~ later of (A) twelve months from the Closing Date and ~~the Arriver Sale,~~ (iiB) the ~~obtaining~~ conclusion of ~~all other necessary consents~~any then pending FCC rule making proceeding regarding 47 C.F.R. Section 73.3555(d); provided, ~~approvals or waivers from Third Parties~~ that the foregoing sentence shall be subject to the provisions of subsection (~~provided that none~~ b) below. Failure to obtain any of the ~~Company, the Acquiring Parties or Merger Sub shall be required to make or agree to make any payment or accept any material conditions or obligations with respect thereto, except as expressly~~ waivers set forth ~~in Section 6.10(c)), including in respect of the Non-Arriver Extraction and the Arriver Sale,~~ above shall not limit Buyer's obligations pursuant to subsection (~~iii~~b) the defending of any Actions, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed and (iv) the execution and delivery of any additional instruments necessary to consummate the Merger and any other transactions to be performed or consummated by such party in accordance with the terms of this Agreement and to carry out fully the purposes of this Agreementbelow. (b) Each of the parties hereto shall promptly (and, in the case of filings required under the HSR Act, in no event later than fifteen (15) Business Days following the date hereof) (i) make and not withdraw any applicable filings under the HSR Act, and thereafter make any other applications and filings required or advisable under the Antitrust Laws or Investment Screening Laws of the jurisdictions set forth on Section 6.3(a) of the Company Disclosure Letter with respect Notwithstanding anything to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale, (ii) comply at the earliest practicable date with any request under the HSR Act for additional information (including responding to any “second request”), documents or other materials received by such party from the U.S. Federal Trade Commission, the Antitrust Division of the U.S. Department of Justice or from any other Governmental Authority under any Antitrust Laws or Investment Screening Laws in respect of any such filings with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale and (iii) act in good faith and reasonably cooperate with each other party in connection with any such filings (including, if requested by another party, considering in good faith all reasonable additions, deletions or changes suggested by the other party in connection therewith) and in connection with resolving any investigation or other inquiry of such agency or other Governmental Authority under any Antitrust Laws and Investment Screening Laws. In taking the foregoing actions, each of the Company and the Acquiring Parties shall act reasonably and as promptly as practicable. Notwithstanding anything contrary in this Agreement to other than the ~~contrary~~following sentence, ~~obtaining any Third Party Consents or waivers pursuant to Section 6.3(a)(ii) above or otherwise~~the Company, including any Consents required in connection with the Non-Arriver Extraction or the Arriver Sale, shall not be a condition to the obligations of any party to consummate the Merger. (c) Without limiting anything in this Section 6.3 (i) none of the parties hereto or their respective Affiliates shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby, except with the prior written consent of the other parties hereto Buyer and ~~(ii) the Acquiring Parties and Merger Sub~~ FTH each agree to take ~~(and to cause their Affiliates to take)~~ promptly any and all steps necessary ~~or reasonably advisable or as may be required by any Governmental Authority~~ to avoid or eliminate each and every impediment and obtain all ~~Consents~~ consents or waivers under any ~~Antitrust Laws~~ antitrust, competition or ~~Investment Screening Laws~~ communications or broadcast Law that may be validly required by any U.S. federal, state or local antitrust or competition Governmental ~~Authority~~ Authority, or by the FCC or similar Governmental Authority, or by any Australian Law, in each case with competent jurisdiction, so as to enable the parties to ~~consummate~~ close the transactions contemplated by this ~~Agreement, including the Merger, the Non-Arriver Extraction and the Arriver Sale~~ Agreement as expeditiously as ~~possible (and in any event at least five (5) Business Days prior to the Outside Date)~~reasonably possible, including committing to ~~and~~ or effecting, by consent decree, hold separate ~~order~~orders, ~~trust~~ trust, or otherwise, the sale or disposition of such of its assets or businesses as are required to be divested in order to obtain the FCC Consent (~~A) selling~~as defined below), ~~divesting, licensing~~ or ~~otherwise disposing~~ to avoid the entry of, or ~~holding separate and agreeing~~ to ~~sell, divest, license~~ effect the dissolution of or ~~otherwise dispose of~~vacate or lift, any ~~assets~~ decree, order, judgment, injunction, temporary restraining order or other order in any suit or 47 57 proceeding by or with any Governmental Authority (each, an "Order"), that would otherwise have the effect of preventing or materially delaying the consummation of the ~~Company,~~ Merger and the ~~Acquiring Parties, Merger Sub or their respective Affiliates~~other transactions contemplated by this Agreement. Notwithstanding the foregoing, (Bi) terminating, amending or assigning existing relationships and contractual rights and obligations, (C) requiring the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates to grant any right or commercial or other accommodation to, or enter into any material commercial contractual or other commercial relationship with, any Third Party and (D) imposing limitations on the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates with respect to how they own, retain, conduct or operate all or any portion of their respective businesses or assets (clauses (A) through (D) shall be referred to as “Remedy Actions”). Notwithstanding anything to the contrary set forth in this Section 6.3, the Acquiring Parties and Merger Sub neither Buyer nor FTH shall not be required to ~~commit~~ divest any of its material assets or accept any material limitation on any of its material businesses other than (x) the divestiture of such broadcast assets (i.e., newspaper and television stations) as it is required to divest or (y) the material limitation on such broadcast assets or Buyer's and FTH's operation thereof as it is required to be subject to, in the case of each of clauses (x) and (y) in order to comply with the FCC Multiple Ownership Rules or a final Order in an action brought by an antitrust or competition or FCC or similar Governmental Authority, (ii) notwithstanding clause (i), neither the Company, Buyer nor FTH shall be required to divest or to hold separate, or to accept any substantial limitation on the operation of, or to waive any rights material to, the San Francisco television station of Buyer or the Company (each of the actions described in clause (i) and (ii) above being an "Adverse Condition"), (iii) neither party shall be required to take any of the foregoing actions if such action is not conditioned on the consummation of the Merger and (iv) without limiting Buyer's obligations set forth herein, the Company shall not agree toto any of the foregoing without Buyer's consent and, at Buyer's request, the Company shall agree to any of the foregoing so long as such agreement is conditioned upon consummation of the Merger. (c) Each of Buyer, FTH and the Company shall give (or shall cause its respective subsidiaries to give) any notices to third parties, and Buyer, FTH and the Company shall use, and cause each of its subsidiaries to use, its reasonable best efforts to obtain any third party consents not covered by paragraphs (a) and (b) above, necessary, proper or advisable to consummate the Forward Merger or, if a Restructuring Trigger has occurred, the Reverse Merger; provided that neither Buyer nor FTH shall be required to pay, and the Company shall not ~~be permitted to commit or agree to~~ pay, without ~~the consent of the Acquiring Parties~~Buyer's prior written consent, any ~~such Remedy Action contemplated by clause (ii) above~~ material consideration to ~~the extent~~ obtain any such Remedy Action contemplated by clause (ii) above (x) is not conditioned upon the consummation of the transactions contemplated by this Agreement or (y) would require, or cause to be taken, (1) any sale, divestiture, licensing or other disposal of, or other action with respect to, any assets or businesses of QUALCOMM Technology Licensing, (2) any sale, divestiture, licensing or other disposal of any assets or businesses of the Arriver Business, or any other action with respect to any assets or businesses of the Arriver Business, that would materially diminish or materially interfere with the benefits that QUALCOMM reasonably expects to receive from its ownership of the Arriver Business, (3) any sale or divestiture of any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a fair market value (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the economic impact determined with respect to any actions taken pursuant to the following clause (4), or (4) any other action (excluding sales or divestitures) with respect to any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a net negative economic impact (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the fair market value determined with respect to any actions taken pursuant to the foregoing clause (3). (d) consent. 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 inquiry from a Governmental Authority, including ~~(i) promptly~~ immediately 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 substantive meetings or discussions 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 either party and any Governmental Authority with respect to this Agreement; provided that, notwithstanding anything in this Agreement to the contrary, the Acquiring Parties shall determine the strategy to be pursued for obtaining and lead the effort to obtain all necessary actions or nonactions and consents from Governmental Authorities, including any related litigation and Remedy Actions, pursuant to any Antitrust Law in connection with the transactions contemplated by this Agreement, and the Company shall take all reasonably requested actions to support the Acquiring Parties in connection therewith. Notwithstanding anything to the contrary contained in this Agreement, the Acquiring Parties shall consult with the Company and consider in good faith the views of the Company in connection with all material communications with a Governmental Authority and strategy regarding the Antitrust Laws. (e) The Company and the Acquiring Parties, in their respective sole and absolute discretion, may (x) redact materials as necessary to comply with contractual arrangements address reasonable attorney client or other privilege or confidentiality concerns, exclude any information relating to Company valuation and similar matters relating to the transactions contemplated herein, and (y) designate any competitively sensitive material as “Outside Counsel Only Material” such that such materials and the information contained therein shall be given only to the outside counsel of the recipient and will not be disclosed to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel. (f) The Acquiring Parties and Merger Sub shall not, and shall not permit any of their controlled Affiliates to, (i) acquire or agree to acquire by merging or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests or (ii) take or agree to take any other action (including entering into or agreeing to enter into any material license, joint venture or other transaction), in each case that would reasonably be expected to (A) impose any material delay in the obtaining of, or increase the risk materially of not obtaining, approval from, or avoiding an Action by, any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period, (B) materially increase the risk of any Governmental Authority entering an Order prohibiting the consummation of the transactions contemplated by this Agreement or (C) otherwise materially delay or prevent the consummation of the transactions contemplated by this Agreement.

Appears in 1 contract

Samples: Merger Agreement (United Television Inc)

Appropriate Action; Consents; Filings. (a) ~~In accordance with~~ Subject to the terms and ~~subject to the~~ conditions of this Agreement (including the limitations set forth in Section ~~6.5~~6.6), the parties hereto will use their respective reasonable best efforts ~~to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable~~ to consummate and make effective the transactions contemplated hereby and to cause the conditions to the First Merger set forth in Article VII to be ~~satisfied as expeditiously as practicable (and in any event at least five (5) Business Days prior to the Outside Date)~~satisfied, including using reasonable best efforts to accomplish the following: (i) the obtaining of all necessary ~~or advisable~~ actions or non-actions, ~~waivers, Consents~~ consents and approvals from Governmental Authorities or other Persons necessary ~~or advisable~~ in connection with the consummation of the transactions contemplated ~~by this Agreement~~hereby, including the First Merger, ~~the Non-Arriver Extraction and the Arriver Sale~~ and the making of all necessary ~~or advisable~~ registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary ~~or advisable~~ to obtain an approval from, or to avoid ~~any Action~~ a Proceeding by, any Governmental Authority or other Persons necessary in connection with the consummation of the transactions contemplated ~~by this Agreement~~hereby, including the First Merger~~, the Non-Arriver Extraction and the Arriver Sale,~~ ; (ii) the obtaining of all other necessary consents, approvals or waivers from Third Parties (provided that none of the Company, the Acquiring Parties or Merger Sub shall be required to make or agree to make any payment or accept any material conditions or obligations with respect thereto, except as expressly set forth in Section 6.10(c)), including in respect of the Non-Arriver Extraction and the Arriver Sale, (iii) the defending of any ~~Actions~~lawsuits or other legal Proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including the First Merger, performed or consummated by such party in accordance with the ~~Non-Arriver Extraction and the Arriver Sale~~ 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~~ reversed; and (iviii) the execution and delivery of any additional instruments reasonably necessary to consummate the First 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~~ . To the extent required by Applicable Law, each of the parties hereto ~~shall~~ shall, as promptly ~~(and~~as reasonably practicable after the execution of this Agreement, ~~in the case of filings required under the HSR Act, in no event later than fifteen (15) Business Days following the date hereof) (i)~~ make and not withdraw ~~any applicable~~ its respective filings under the HSR Act, and thereafter make any other applications and filings ~~required or advisable~~ as reasonably determined by the Company and Parent under ~~the~~ other applicable Antitrust Laws ~~or Investment Screening Laws of the jurisdictions set forth on Section 6.3(a) of the Company Disclosure Letter~~ with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale, (ii) comply at the earliest practicable date with any request under the HSR Act for additional information (including responding to any “second request”), documents or other materials received by such party from the U.S. Federal Trade Commission, the Antitrust Division of the U.S. Department of Justice or from any other Governmental Authority under any Antitrust Laws or Investment Screening Laws in respect of any such filings with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale and (iii) act in good faith and reasonably cooperate with each other party in connection with any such filings (including, if requested by another party, considering in good faith all reasonable additions, deletions or changes suggested by the other party in connection therewith) and in connection with resolving any investigation or other inquiry of such agency or other Governmental Authority under any Antitrust Laws and Investment Screening Laws. In taking the foregoing actions, each of the Company and the Acquiring Parties shall act reasonably and hereby as promptly as practicable. , but in no event later than as required by Law. (b) Notwithstanding anything to the contrary in this ~~Agreement~~ Agreement, neither of the parties hereto will have any obligation to ~~the contrary, obtaining~~ take or commit to take any ~~Third Party Consents~~ actions under this Section 6.4 that would or ~~waivers pursuant~~ would reasonably be expected to ~~Section 6.3(a)(ii) above~~ result in either a Parent Material Adverse Effect or ~~otherwise, including any Consents required in connection with the Non-Arriver Extraction or the Arriver Sale, shall not be~~ a ~~condition to the obligations of any party to consummate the Merger~~Company Material Adverse Effect. (c) ~~Without~~ In connection with and without limiting ~~anything~~ the efforts referenced in this Section 6.3 (i) none of the parties hereto or their respective Affiliates shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby6.4, except with the prior written consent of the other parties hereto and (ii) the Acquiring Parties and Merger Sub agree to take (and to cause their Affiliates to take) promptly any and all steps necessary or reasonably advisable or as may be required by any Governmental Authority to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws or Investment Screening Laws that may be required by any Governmental Authority so as to enable the parties to consummate the transactions contemplated by this Agreement, including the Merger, the Non-Arriver Extraction and the Arriver Sale as expeditiously as possible (and in any event at least five (5) Business Days prior to the Outside Date), including committing to and effecting, by consent decree, hold separate order, trust or otherwise, (A) selling, divesting, licensing or otherwise disposing of, or holding separate and agreeing to sell, divest, license or otherwise dispose of, any assets of the Company, the Acquiring Parties, Merger Sub or their respective Affiliates, (B) terminating, amending or assigning existing relationships and contractual rights and obligations, (C) requiring the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates to grant any right or commercial or other accommodation to, or enter into any material commercial contractual or other commercial relationship with, any Third Party and (D) imposing limitations on the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates with respect to how they own, retain, conduct or operate all or any portion of their respective businesses or assets (clauses (A) through (D) shall be referred to as “Remedy Actions”). Notwithstanding anything to the contrary set forth in this Section 6.3, the Acquiring Parties and Merger Sub shall not be required to commit or agree to, and the Company shall not be permitted to commit or agree to without the consent of the Acquiring Parties, any such Remedy Action contemplated by clause (ii) above to the extent any such Remedy Action contemplated by clause (ii) above (x) is not conditioned upon the consummation of the transactions contemplated by this Agreement or (y) would require, or cause to be taken, (1) any sale, divestiture, licensing or other disposal of, or other action with respect to, any assets or businesses of QUALCOMM Technology Licensing, (2) any sale, divestiture, licensing or other disposal of any assets or businesses of the Arriver Business, or any other action with respect to any assets or businesses of the Arriver Business, that would materially diminish or materially interfere with the benefits that QUALCOMM reasonably expects to receive from its ownership of the Arriver Business, (3) any sale or divestiture of any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a fair market value (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the economic impact determined with respect to any actions taken pursuant to the following clause (4), or (4) any other action (excluding sales or divestitures) with respect to any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a net negative economic impact (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the fair market value determined with respect to any actions taken pursuant to the foregoing clause (3). (d) 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~~Authority or in connection with any Proceeding initiated by a private party, including ~~(i) promptly~~ immediately 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~~ or in ~~any substantive meetings or discussions~~ connection with any ~~Governmental Authority~~Proceeding initiated by a private party, to ~~the extent not prohibited by such Governmental Authority~~ any other Person, and ~~(iv)~~ supplying each other with copies of all material correspondence, filings or communications between either party and any Governmental ~~Authority~~ Authority, or in connection with any Proceeding initiated by a private party, between either party and any other Person with respect to this Agreement~~; provided that~~. In addition, ~~notwithstanding anything~~ each of the parties hereto will give reasonable notice to and consult with the other in ~~this Agreement to the contrary~~advance of any meeting or conference with any Governmental Authority, ~~the Acquiring Parties shall determine the strategy to be pursued for obtaining and lead the effort to obtain all necessary actions~~ or ~~nonactions and consents from Governmental Authorities, including any related litigation and Remedy Actions, pursuant to any Antitrust Law~~ in connection with ~~the transactions contemplated~~ any Proceeding by ~~this Agreement~~a private party, with any other Person, and ~~the Company shall take all reasonably requested actions to support the Acquiring Parties in connection therewith. Notwithstanding anything~~ to the ~~contrary contained in this Agreement,~~ extent permitted by the ~~Acquiring Parties shall consult with the Company and consider in good faith the views of the Company in connection with all material communications with a~~ Governmental Authority and strategy regarding the Antitrust Laws. (e) The Company and the Acquiring Parties, in their respective sole and absolute discretion, may (x) redact materials as necessary to comply with contractual arrangements address reasonable attorney client or other ~~privilege~~ Person, give the other the opportunity to attend and participate in such meeting or confidentiality concerns, exclude any information relating to Company valuation and similar matters relating to the transactions contemplated herein, and (y) designate any competitively sensitive material as “Outside Counsel Only Material” such that such materials and the information contained therein shall be given only to the outside counsel of the recipient and will not be disclosed to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counselconference. (f) The Acquiring Parties and Merger Sub shall not, and shall not permit any of their controlled Affiliates to, (i) acquire or agree to acquire by merging or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests or (ii) take or agree to take any other action (including entering into or agreeing to enter into any material license, joint venture or other transaction), in each case that would reasonably be expected to (A) impose any material delay in the obtaining of, or increase the risk materially of not obtaining, approval from, or avoiding an Action by, any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period, (B) materially increase the risk of any Governmental Authority entering an Order prohibiting the consummation of the transactions contemplated by this Agreement or (C) otherwise materially delay or prevent the consummation of the transactions contemplated by this Agreement.

Appears in 1 contract

Samples: Merger Agreement (Sierra Income Corp)

Appropriate Action; Consents; Filings. (a) ~~In accordance with the terms and subject to the conditions of this Agreement (including Section 6.5), the~~ The parties hereto will use their respective ~~reasonable~~ best efforts ~~to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable~~ to consummate and make effective the transactions contemplated hereby and to cause the conditions to the Merger set forth in Article VII to be ~~satisfied~~ satisfied, including (i) in the case of Buyer, the obtaining of all necessary approvals under any applicable communication or broadcast Laws required in connection with this Agreement, the Merger and the other transactions contemplated by this Agreement, including any Divestiture (as ~~expeditiously as practicable~~ defined below) commitments by Buyer in accordance with Section 6.5(b); provided, however, that in connection with the Merger, Buyer shall not seek a waiver of the FCC Multiple Ownership Rules except for a temporary waiver of subsections (~~and in any event at least five (5) Business Days prior to the Outside Date~~a), ~~including using reasonable best efforts~~ (c), and (d) thereof for a period not to ~~accomplish~~ exceed six (6) months from the ~~following:~~ Effective Time; provided, further, that failure to obtain any waiver shall not limit Buyer’s obligations pursuant to Section 6.5(b), (iii) the obtaining of all necessary ~~or advisable~~ actions or ~~non-actions~~nonactions, ~~waivers, Consents~~ consents and approvals from Governmental Authorities or other persons necessary ~~or advisable~~ in connection with the consummation of the transactions contemplated by this ~~Agreement, including the Merger, the Non-Arriver Extraction and the Arriver Sale~~ Agreement and the making of all necessary ~~or advisable~~ registrations and filings (including filings with Governmental ~~Authorities,~~ Authorities if any) and the taking of all reasonable steps as may be necessary ~~or advisable~~ to obtain an approval from, or to avoid ~~any Action~~ an action or proceeding by, any Governmental Authority or other persons necessary in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, the Non-Arriver Extraction and the Arriver Sale, (ii) the obtaining of all other necessary consents, approvals or waivers from Third Parties (provided that none of the Company, the Acquiring Parties or Merger Sub shall be required to make or agree to make any payment or accept any material conditions or obligations with respect thereto, except as expressly set forth in Section 6.10(c)), including in respect of the Non-Arriver Extraction and the Arriver Sale, (iii) the defending of any ~~Actions~~lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions ~~contemplated hereby~~performed or consummated by such party in accordance with the terms of this Agreement, ~~including the Merger, the Non-Arriver Extraction and the Arriver Sale~~ including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed and (iv) the execution and delivery of any additional instruments necessary to consummate the Merger and ~~any~~ other transactions to be performed or consummated by such party in accordance with the terms of this Agreement and to fully carry out ~~fully~~ the purposes of this Agreement~~. (b)~~ . Each of the parties hereto shall promptly (~~and, in the case of filings required under the HSR Act,~~ in no event later than fifteen (15) ~~Business Days~~ business days following the date ~~hereof) (i~~that this Agreement is executed) make ~~and not withdraw any applicable filings under the HSR Act~~its respective filings, and thereafter make any other ~~applications and filings~~ required ~~or advisable~~ submissions under the ~~Antitrust Laws or Investment Screening Laws of the jurisdictions set forth on Section 6.3(a) of the Company Disclosure Letter~~ HSR Act with respect to the transactions contemplated hereby~~, including the Merger, the Non-Arriver Extraction~~ . Buyer and the ~~Arriver Sale,~~ Company shall cooperate to prepare such applications as may be necessary for submission to the FCC in order to obtain the FCC Consent (~~ii) comply at~~ the ~~earliest practicable date with any request under the HSR Act for additional information (including responding to any~~ “~~second request~~FCC Applications”). Buyer and the Company shall promptly (in no event later than fifteen (15) business days following the date that this Agreement is executed) file the FCC Applications with the FCC, ~~documents~~ and the parties shall diligently take, or ~~other materials received~~ cooperate in the taking of, all necessary, desirable and proper actions, and provide any additional information, reasonably required or requested by ~~such party from~~ the ~~U.S. Federal Trade Commission~~FCC. Each of Buyer and the Company agrees not to, ~~the Antitrust Division~~ and shall not permit any of their respective subsidiaries to, take any action that would reasonably be expected to materially delay, materially impede or prevent receipt of the ~~U.S. Department of Justice~~ FCC Consent. Buyer further agrees that in the event that it seeks one or from any other Governmental Authority under any Antitrust Laws or Investment Screening Laws in respect of any such filings with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale and (iii) act in good faith and reasonably cooperate with each other party in connection with any such filings (including, if requested by another party, considering in good faith all reasonable additions, deletions or changes suggested by the other party in connection therewith) and in connection with resolving any investigation or other inquiry of such agency or other Governmental Authority under any Antitrust Laws and Investment Screening Laws. In taking the foregoing actions, each of the Company and the Acquiring Parties shall act reasonably and as promptly as practicable. Notwithstanding anything in this Agreement to the contrary, obtaining any Third Party Consents or more waivers pursuant to Section 6.3(a)(ii) above or otherwise, including any Consents required in connection with the Non-Arriver Extraction or the Arriver Sale, shall not be a condition to the obligations of any party to consummate the Merger. (c) Without limiting anything in this Section ~~6.3~~ 6.5(a), Buyer will (i) ~~none of~~ use its reasonable best efforts to diligently pursue and prosecute before the parties hereto or their respective Affiliates shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby, except with the prior written consent of the other parties hereto FCC each such request for waiver; and (ii) regularly consult with the ~~Acquiring Parties~~ Company with regard to its waiver requests and ~~Merger~~ consider in good faith the views of the Company with respect thereto. (b) Buyer and Acquisition Sub agree to take ~~(and to cause their Affiliates to take)~~ promptly any and all steps necessary ~~or reasonably advisable or as may be required by any Governmental Authority~~ to avoid or eliminate each and every impediment and obtain all ~~Consents~~ consents under any ~~Antitrust Laws~~ antitrust, competition or ~~Investment Screening Laws~~ communications or broadcast Law (including the FCC Multiple Ownership Rules) that may be required by any U.S. federal, state or local antitrust or competition Governmental ~~Authority~~ Authority, or by the FCC or similar Governmental Authority, in each case with competent jurisdiction, so as to enable the parties to ~~consummate~~ close the transactions contemplated by this ~~Agreement, including the Merger, the Non-Arriver Extraction and the Arriver Sale~~ Agreement as ~~expeditiously~~ promptly as ~~possible (and in any event at least five (5) Business Days prior to the Outside Date)~~practicable, including committing to ~~and~~ or effecting, by consent decree, hold separate ~~order~~orders, ~~trust~~ trust, or otherwise, the Divestiture (Aas defined below) ~~selling~~of such assets or businesses as are required to be divested in order to obtain the FCC Consent, ~~divesting, licensing~~ or ~~otherwise disposing~~ to avoid the entry of, or ~~holding separate and agreeing~~ to ~~sell, divest, license~~ effect the dissolution of or ~~otherwise dispose of~~vacate or lift, any ~~assets~~ Order, that would otherwise have the effect of preventing or materially delaying the consummation of the ~~Company,~~ Merger and the Acquiring Parties, Merger Sub or their respective Affiliates, (B) terminating, amending or assigning existing relationships and contractual rights and obligations, (C) requiring the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates to grant any right or commercial or other accommodation to, or enter into any material commercial contractual or other commercial relationship with, any Third Party and (D) imposing limitations on the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates with respect to how they own, retain, conduct or operate all or any portion of their respective businesses or assets (clauses (A) through (D) shall be referred to as “Remedy Actions”)transactions contemplated by this Agreement. Notwithstanding anything to the contrary ~~set forth~~ in this Section ~~6.3~~6.5, if the FCC has not granted the FCC Consent as of the date that is six (6) months following the date hereof, then, if the respective special communications regulatory counsel to the Company and the Buyer, in consultation with each other and in the exercise of their professional judgment, jointly determine that a Divestiture (as defined below) is required to obtain the FCC Consent, they shall provide written notice of such determination to Buyer and the Company (the “Divestiture Notice”). Upon receipt of the Divestiture Notice, Buyer shall promptly, and in any event within thirty (30) days, implement or cause to be implemented a Divestiture; provided, however, that if the FCC Consent has not been granted as of the date that is nine (9) months following the date hereof and the Company’s special communications regulatory counsel, in the exercise of his sole professional judgment, determines that a Divestiture (as defined below) is required to obtain the FCC Consent, then, upon receipt of written notice thereof, Buyer shall promptly, and in any event within thirty (30) days, implement or cause to be implemented a Divestiture. For purposes of this Agreement, a “Divestiture” of any asset or business shall mean (i) any sale, transfer, separate holding, divestiture or other disposition, or any prohibition of, or any limitation on, the ~~Acquiring Parties~~ acquisition, ownership, operation, effective control or exercise of full rights of ownership, of such asset or (ii) the termination or amendment of any existing or contemplated Buyer’s or Company’s governance structure or contemplated Buyer’s or Company’s contractual or governance rights. Further, and for the avoidance of doubt, Buyer will take any and all actions necessary in order to ensure that (x) no requirement for any non-action, consent or approval of the FTC, the Antitrust Division of the United States Department of Justice, any authority enforcing applicable antitrust, competition, communications or broadcast Laws, any State Attorney General or other 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 or competition Law or any communications or broadcast Law, would preclude consummation of the Merger ~~Sub shall not be required to commit or agree to,~~ by the Termination Date. (c) Each of Buyer and the Company shall ~~not be permitted~~ give (or shall cause its respective subsidiaries to commit or agree to without the consent of the Acquiring Parties, any such Remedy Action contemplated by clause (ii) above to the extent any such Remedy Action contemplated by clause (ii) above (x) is not conditioned upon the consummation of the transactions contemplated by this Agreement or (y) would require, or cause to be taken, (1give) any ~~sale~~notices to third parties, ~~divestiture~~and Buyer and the Company shall use, licensing or other disposal of, or other action with respect to, any assets or businesses of QUALCOMM Technology Licensing, (2) any sale, divestiture, licensing or other disposal of any assets or businesses of the Arriver Business, or any other action with respect to any assets or businesses of the Arriver Business, that would materially diminish or materially interfere with the benefits that QUALCOMM reasonably expects to receive from its ownership of the Arriver Business, (3) any sale or divestiture of any assets or businesses of QUALCOMM or any and cause each of its ~~Subsidiaries~~subsidiaries to use, ~~or with respect~~ its reasonable best efforts to obtain any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a fair market value (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party ~~that is mutually selected~~ consents not covered by paragraphs (a) and (b) above, necessary, proper or advisable to consummate the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the economic impact determined with respect to any actions taken pursuant to the following clause (4), or (4) any other action (excluding sales or divestitures) with respect to any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a net negative economic impact (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the fair market value determined with respect to any actions taken pursuant to the foregoing clause (3). (d) Merger. 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 inquiry from a Governmental Authority, including ~~(i) promptly~~ immediately 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 substantive meetings or discussions 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 either party and any Governmental Authority with respect to this Agreement~~; provided that~~. (d) In order to avoid disruption or delay in the processing of the FCC Applications, notwithstanding anything in this Agreement to the contrary, the Acquiring Parties shall determine the strategy to be pursued for obtaining and lead the effort to obtain all necessary actions or nonactions and consents from Governmental Authorities, including any related litigation and Remedy Actions, pursuant to any Antitrust Law in connection with the transactions contemplated by this Agreement, Buyer and the Company ~~shall take all reasonably requested actions~~ agree, as part of the FCC Applications, to ~~support~~ request that the ~~Acquiring Parties~~ FCC apply its policy permitting license assignments and transfers in ~~connection therewith~~transactions involving multiple markets to proceed, notwithstanding the pendency of one or more license renewal applications. ~~Notwithstanding anything to the contrary contained in this Agreement, the Acquiring Parties shall consult with~~ Buyer and the Company agree to make such representations and consider in good faith the views of the Company in connection with all material communications with a Governmental Authority and strategy regarding the Antitrust Laws. (e) The Company and the Acquiring Parties, in their respective sole and absolute discretion, may (x) redact materials undertakings as necessary or appropriate to ~~comply~~ invoke such policy, including undertakings to assume the position of applicant with ~~contractual arrangements address reasonable attorney client or other privilege or confidentiality concerns~~respect to any pending license renewal applications, ~~exclude any information~~ and to assume the risks relating to ~~Company valuation and similar matters relating to the transactions contemplated herein, and (y) designate any competitively sensitive material as “Outside Counsel Only Material”~~ such that such materials and the information contained therein shall be given only to the outside counsel of the recipient and will not be disclosed to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counselapplications. (f) The Acquiring Parties and Merger Sub shall not, and shall not permit any of their controlled Affiliates to, (i) acquire or agree to acquire by merging or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests or (ii) take or agree to take any other action (including entering into or agreeing to enter into any material license, joint venture or other transaction), in each case that would reasonably be expected to (A) impose any material delay in the obtaining of, or increase the risk materially of not obtaining, approval from, or avoiding an Action by, any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period, (B) materially increase the risk of any Governmental Authority entering an Order prohibiting the consummation of the transactions contemplated by this Agreement or (C) otherwise materially delay or prevent the consummation of the transactions contemplated by this Agreement.

Appears in 1 contract

Samples: Merger Agreement (Univision Communications Inc)

Appropriate Action; Consents; Filings. (a) ~~In accordance with~~ Upon the terms and subject to the conditions of set forth in this Agreement (~~including~~ including, without limitation, those set forth in paragraphs (c) and (d) of this Section ~~6.5~~7.1), ~~the parties hereto will~~ Buyer and Seller shall each use their ~~respective reasonable~~ best efforts to promptly (i) take, or to cause to be taken, all actions, and to do, or to cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable under applicable Law or otherwise to consummate and make effective the transactions contemplated ~~hereby and to cause the conditions to the Merger set forth in Article VII to be satisfied as expeditiously as practicable~~ by this Agreement; (~~and in~~ ii) obtain from any ~~event at least five (5) Business Days prior to the Outside Date)~~Governmental Entities any actions, ~~including using reasonable best efforts to accomplish the following: (i) the obtaining of all necessary or advisable actions or~~ non-actions, clearances, waivers, ~~Consents and approvals from Governmental Authorities necessary~~ consents, approvals, permits or ~~advisable~~ orders required to be obtained by Buyer, Seller 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 by this Agreement, including the Merger, the Non-Arriver Extraction and the Arriver Sale and the making of all necessary or advisable registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary or advisable to obtain an approval from, or to avoid any Action by, any Governmental Authority in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, the Non-Arriver Extraction and the Arriver Sale, (ii) the obtaining of all other necessary consents, approvals or waivers from Third Parties (provided that none of the Company, the Acquiring Parties or Merger Sub shall be required to make or agree to make any payment or accept any material conditions or obligations with respect thereto, except as expressly set forth in Section 6.10(c)), including in respect of the Non-Arriver Extraction and the Arriver Sale, hereby; (iii) promptly make all necessary registrations and filings, and thereafter make any other required submissions, with respect to this Agreement required under (A) the HSR Act and any applicable non-U.S. merger control or competition Laws and (B) any other applicable Law; (iv) avoid the entry of, or have vacated or terminated, any decree, order, or judgment that would restrain, prevent or delay the Closing, including, without limitation, defending of any ~~Actions~~lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed ; and (ivv) ~~the execution~~ execute and ~~delivery of~~ deliver any additional instruments necessary to consummate the Merger and any other transactions to be performed or consummated by such party in accordance with the terms of this Agreement and to carry out fully the purposes of this Agreement. (b) Each of the parties hereto shall promptly (and, in the case of filings required under the HSR Act, in no event later than fifteen (15) Business Days following the date hereof) (i) make and not withdraw any applicable filings under the HSR Act, and thereafter make any other applications and filings required or advisable under the Antitrust Laws or Investment Screening Laws of the jurisdictions set forth on Section 6.3(a) of the Company Disclosure Letter with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale, (ii) comply at the earliest practicable date with any request under the HSR Act for additional information (including responding to any “second request”), documents or other materials received by such party from the U.S. Federal Trade Commission, the Antitrust Division of the U.S. Department of Justice or from any other Governmental Authority under any Antitrust Laws or Investment Screening Laws in respect of any such filings with respect to the transactions contemplated hereby, including the Merger, the Non-Arriver Extraction and the Arriver Sale and (iii) act in good faith and reasonably cooperate with each other party in connection with any such filings (including, if requested by another party, considering in good faith all reasonable additions, deletions or changes suggested by the other party in connection therewith) and in connection with resolving any investigation or other inquiry of such agency or other Governmental Authority under any Antitrust Laws and Investment Screening Laws. In taking the foregoing actions, each of the Company and the Acquiring Parties shall act reasonably and as promptly as practicable. Notwithstanding anything in this Agreement to the contrary, obtaining any Third Party Consents or waivers pursuant to Section 6.3(a)(ii) above or otherwise, including any Consents required in connection with the Non-Arriver Extraction or the Arriver Sale, shall not be a condition to the obligations of any party to consummate the Merger. (c) Without limiting anything in this Section 6.3 (i) none of the parties hereto or their respective Affiliates shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby, except with the prior written consent of the other parties hereto and (ii) the Acquiring Parties and Merger Sub agree to take (and to cause their Affiliates to take) promptly any and all steps necessary or reasonably advisable or as may be required by any Governmental Authority to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws or Investment Screening Laws that may be required by any Governmental Authority so as to enable the parties to consummate the transactions contemplated by this Agreement~~, including the Merger, the Non-Arriver Extraction and the Arriver Sale as expeditiously as possible (and in~~ . No parties to this Agreement shall consent to any event at least five (5) Business Days prior to the Outside Date), including committing to and effecting, by consent decree, hold separate order, trust or otherwise, (A) selling, divesting, licensing or otherwise disposing of, or holding separate and agreeing to sell, divest, license or otherwise dispose of, any assets voluntary delay of the Company, the Acquiring Parties, Merger Sub or their respective Affiliates, (B) terminating, amending or assigning existing relationships and contractual rights and obligations, (C) requiring the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates to grant any right or commercial or other accommodation to, or enter into any material commercial contractual or other commercial relationship with, any Third Party and (D) imposing limitations on the Acquiring Parties, Merger Sub, the Company or any of their respective Affiliates with respect to how they own, retain, conduct or operate all or any portion of their respective businesses or assets (clauses (A) through (D) shall be referred to as “Remedy Actions”). Notwithstanding anything to the contrary set forth in this Section 6.3, the Acquiring Parties and Merger Sub shall not be required to commit or agree to, and the Company shall not be permitted to commit or agree to without the consent of the Acquiring Parties, any such Remedy Action contemplated by clause (ii) above to the extent any such Remedy Action contemplated by clause (ii) above (x) is not conditioned upon the consummation of the transactions contemplated by this Agreement at the behest of any Governmental Entity without the consent of the other parties to this Agreement, which consent shall not be unreasonably withheld. (b) In furtherance of the foregoing, to the extent not filed prior to the date hereof, the parties hereto shall cooperate with each other and shall use their respective best efforts to file required Notification and Report Forms under the HSR Act with the FTC and the DOJ as soon as practicable following the date of this Agreement, but in no event later than five (5) Business Days from and after the date hereof, and shall respond as promptly as practicable to all requests or ~~(y) would require,~~ inquiries received from the FTC or ~~cause~~ DOJ for additional documentation or information. Each party agrees to cooperate with each other in determining whether any other filings are required to be ~~taken~~made with any Governmental Entity under any applicable antitrust, competition, foreign investment or trade regulation Law in connection with the execution, delivery and performance of this Agreement and agrees to make as promptly as practicable any such filings and to promptly supply any additional information or documentary material that may be requested by any Governmental Entity. Buyer and Seller will pay one- half each the cost of all filing fees to any Governmental Entity in connection with any required Consent of any Governmental Entity. (1c) ~~any sale~~Buyer shall be under no obligation to sell, ~~divestiture~~divest, ~~licensing~~ license or ~~other disposal of, or other action with respect to, any assets or businesses of QUALCOMM Technology Licensing, (2) any sale, divestiture, licensing or other disposal~~ dispose of any assets or businesses of Buyer (or its Subsidiaries) or the ~~Arriver Business,~~ Company or the Company Subsidiaries or to enter into any ~~other~~ agreement to take or commit to take actions that limit Buyer’s or its Subsidiaries’ freedom of action with respect to, or their ability to retain, any ~~assets or businesses~~ of the ~~Arriver Business~~business, ~~that would materially diminish~~ product lines or ~~materially interfere with the benefits that QUALCOMM reasonably expects to receive from its ownership~~ assets of ~~the Arriver Business,~~ Buyer (~~3) any sale~~ or ~~divestiture of any assets or businesses of QUALCOMM or any of~~ its Subsidiaries), ~~or with respect to any assets or businesses of~~ the Company or its Subsidiaries, that individually or in the aggregate, have a fair market value (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the economic impact determined with respect to any actions taken pursuant to the following clause (4), or (4) any other action (excluding sales or divestitures) with respect to any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a net negative economic impact (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the fair market value determined with respect to any actions taken pursuant to the foregoing clause (3). (d) ~~Each~~ Subject to applicable legal limitations and instructions of any Governmental Entity, each party to this Agreement shall promptly notify the other party of any written or oral communication it or any of its Affiliates receives from any Governmental Entity relating to the matters that are the subject of this Agreement and permit the other party a reasonable opportunity to review in advance any proposed substantive communication by such party to any Governmental Entity. Prior to the Closing, neither Buyer nor any of its Affiliates nor any of their respective representatives or advisors shall contact, communicate with, submit any documentation to, or make any filing with any Governmental Entity in connection with any of the transactions contemplated hereby, without the prior written consent of Seller. To the extent practicable under the circumstances, none of the parties ~~hereto will furnish~~ to this Agreement shall agree to participate in any substantive meeting with any Governmental Entity in respect of any filings, investigation (including any settlement of the investigation), litigation or other inquiry unless it consults with the other party in advance and, where permitted, allows the other party to participate. Subject to applicable legal limitations and instructions of any Governmental Entity, the parties to this Agreement will: (i) coordinate and cooperate fully with each other in exchanging such ~~necessary~~ information and ~~reasonable~~ providing such assistance as the other party may reasonably request in connection with ~~the preparation of~~ its communications with any ~~required governmental filings or submissions and will cooperate in responding to any inquiry from a~~ Governmental ~~Authority, including (i) promptly informing the other party of such inquiry~~Entity, (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 substantive meetings or discussions with any Governmental Authority, to the extent not prohibited by such Governmental Authority and (iv) supplying provide each other with copies of all ~~material~~ written correspondence, filings or communications between ~~either party~~ them or any of their representatives, on the one hand, and any Governmental ~~Authority~~ Entity or members of such agency’s staff, on the other hand, with respect to this ~~Agreement; provided that, notwithstanding anything in this~~ Agreement ~~to the contrary, the Acquiring Parties shall determine the strategy to be pursued for obtaining~~ and lead the effort to obtain all necessary actions or nonactions and consents from Governmental Authorities, including any related litigation and Remedy Actions, pursuant to any Antitrust Law in connection with the transactions contemplated by this ~~Agreement~~Agreement and (iii) prior to submitting any substantive and material written communication to any Governmental Entity, permit the other party and ~~the Company shall take all reasonably requested actions~~ its counsel a reasonable opportunity to ~~support the Acquiring Parties~~ review in ~~connection therewith. Notwithstanding anything to the contrary contained in this Agreement~~advance, ~~the Acquiring Parties shall consult with the Company~~ and consider in good faith the views of the ~~Company~~ other party provided in a timely manner, in connection ~~with all material communications with a Governmental Authority and strategy regarding the Antitrust Laws. (e) The Company and the Acquiring Parties~~with, ~~in their respective sole and absolute discretion~~any such communication; provided, however, that materials may be redacted (x) ~~redact materials~~ as necessary to comply with contractual arrangements and (y) as necessary to address reasonable ~~attorney~~ attorney-client or other privilege or confidentiality concerns, exclude any information relating to Company valuation and similar matters relating to the transactions contemplated herein, and (y) designate any competitively sensitive material as “Outside Counsel Only Material” such that such materials and the information contained therein shall be given only to the outside counsel of the recipient and will not be disclosed to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel. (f) The Acquiring Parties and Merger Sub shall not, and shall not permit any of their controlled Affiliates to, (i) acquire or agree to acquire by merging or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests or (ii) take or agree to take any other action (including entering into or agreeing to enter into any material license, joint venture or other transaction), in each case that would reasonably be expected to (A) impose any material delay in the obtaining of, or increase the risk materially of not obtaining, approval from, or avoiding an Action by, any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period, (B) materially increase the risk of any Governmental Authority entering an Order prohibiting the consummation of the transactions contemplated by this Agreement or (C) otherwise materially delay or prevent the consummation of the transactions contemplated by this Agreement.

Appears in 1 contract

Samples: Stock Purchase Agreement (TransDigm Group INC)

Appropriate Action; Consents; Filings. (a) In accordance with the terms and subject to the conditions of this Agreement (including Section 6.5), the parties hereto will use their respective reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby and to cause the conditions to the Merger set forth in Article VII to be satisfied as expeditiously as practicable (and in any event at least five (5) Business Days prior to the Outside Date), including using reasonable best efforts to accomplish the following: (i) the obtaining of all necessary or advisable actions or non-actions, waivers, Consents and approvals from Governmental Authorities necessary or advisable in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale~~ and the making of all necessary or advisable registrations and filings (including filings with Governmental Authorities, if any) and the taking of all reasonable steps as may be necessary or advisable to obtain an approval from, or to avoid any Action by, any Governmental Authority in connection with the consummation of the transactions contemplated by this Agreement, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale,~~ (ii) the obtaining of all other necessary consents, approvals or waivers from Third Parties (provided that the none of the Company, ~~the Acquiring Parties~~ Parent or ~~Merger~~ Acquisition Sub shall be required to make or agree to make any payment or accept any material conditions or obligations with respect thereto~~, except as expressly set forth in Section 6.10(c~~)~~), including in respect of the Non-Arriver Extraction and the Arriver Sale~~, (iii) the defending of any Actions, whether judicial or administrative, challenging this Agreement or the consummation of the transactions contemplated hereby, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale~~ including seeking to have any stay or temporary restraining order entered by any court or other Governmental Authority vacated or reversed and (iv) the execution and delivery of any additional instruments necessary to consummate the Merger and any other transactions to be performed or consummated by such party in accordance with the terms of this Agreement and to carry out fully the purposes of this Agreement. (b) Each of the parties hereto shall promptly (and, in the case of filings required under the HSR Act, in no event later than fifteen (15) Business Days following the date hereof) (i) make and not withdraw ~~any applicable~~ its filings under the HSR Act, and thereafter make any other applications and filings required or advisable under the Antitrust Laws or Investment Screening Laws of the jurisdictions set forth on Section 6.3(a) of the Company Disclosure Letter with respect to the transactions contemplated hereby, including the Merger~~, the Non-Arriver Extraction and the Arriver Sale~~, (ii) comply at the earliest practicable date with any request under the HSR Act for additional information (including responding to any “second request”), documents or other materials received by such party from the U.S. Federal Trade Commission, the Antitrust Division of the U.S. Department of Justice or from any other Governmental Authority under any Antitrust Laws or Investment Screening Laws in respect of any such filings with respect to the transactions contemplated hereby, including the ~~Merger, the Non-Arriver Extraction and the Arriver Sale~~ Merger and (iii) act in good faith and reasonably cooperate with ~~each~~ the other party in connection with any such filings (including, if requested by ~~another~~ the other party, considering in good faith all reasonable additions, deletions or changes suggested by the other party in connection therewith) and in connection with resolving any investigation or other inquiry of such agency or other Governmental Authority under any Antitrust Laws and Investment Screening Laws. In taking the foregoing actions, each of the Company and ~~the Acquiring Parties~~ Parent shall act reasonably and as promptly as practicable. Notwithstanding anything in this Agreement to the contrary, obtaining any Third Party Consents or waivers pursuant to Section 6.3(a)(ii) above or ~~otherwise, including any Consents required in connection with the Non-Arriver Extraction or the Arriver Sale,~~ otherwise shall not be a condition to the obligations of any party to consummate the Merger. (c) Without limiting anything in this Section 6.3 (i) none of the parties hereto or their respective Affiliates shall extend any waiting period or comparable period under the HSR Act or enter into any agreement with any Governmental Authority not to consummate the transactions contemplated hereby, except with the prior written consent of the other parties hereto and (ii) ~~the Acquiring Parties~~ Parent and ~~Merger~~ Acquisition Sub agree to take (and to cause their Affiliates to take) promptly any and all steps necessary or reasonably advisable or as may be required by any Governmental Authority to avoid or eliminate each and every impediment and obtain all Consents under any Antitrust Laws or Investment Screening Laws that may be required by any Governmental Authority so as to enable the parties to consummate the transactions contemplated by this Agreement, including the Merger, ~~the Non-Arriver Extraction and the Arriver Sale~~ as expeditiously as possible (and in any event at least five (5) Business Days prior to the Outside Date), including committing to and effecting, by consent decree, hold separate order, trust or otherwise, (A) selling, divesting, licensing or otherwise disposing of, or holding separate and agreeing to sell, divest, license or otherwise dispose of, any assets of the Company, ~~the Acquiring Parties~~Parent, ~~Merger~~ Acquisition Sub or their respective Affiliates, (B) terminating, amending or assigning existing relationships and contractual rights and obligations, (C) requiring ~~the Acquiring Parties~~Parent, ~~Merger~~ Acquisition Sub, the Company or any of their respective Affiliates to grant any right or commercial or other accommodation to, or enter into any material commercial contractual or other commercial relationship with, any Third Party and (D) imposing limitations on ~~the Acquiring Parties~~Parent, ~~Merger~~ Acquisition Sub, the Company or any of their respective Affiliates with respect to how they own, retain, conduct or operate all or any portion of their respective businesses or ~~assets (clauses (A) through (D) shall be referred to as “Remedy Actions”). Notwithstanding~~ assets; provided that, notwithstanding anything to the contrary set forth in this Section 6.3, ~~the Acquiring Parties~~ Parent and ~~Merger~~ Acquisition Sub shall not be required to commit or agree to, and the Company shall not be permitted to commit or agree ~~to without the consent of the Acquiring Parties~~to, any such ~~Remedy Action~~ action contemplated by clause (ii) above to the extent any such ~~Remedy Action~~ action contemplated by clause (ii) above (x) is not conditioned upon the consummation of the transactions contemplated by this Agreement or (y) would require, or cause to be taken, (1) any sale, divestiture, licensing or other disposal of, or other action with respect to, any assets or businesses of QUALCOMM Technology Licensing, (2) any sale, divestiture, licensing or other disposal of any assets or businesses of the Arriver Business, or any other action with respect to any assets or businesses of the Arriver Business, that would materially diminish or materially interfere with the benefits that QUALCOMM reasonably expects to receive from its ownership of the Arriver Business, (3) any sale or divestiture with respect to assets of ~~any assets~~ Parent and Acquisition Sub or ~~businesses of QUALCOMM or any of its~~ their Subsidiaries, or with respect to ~~any~~ the assets ~~or businesses~~ of the Company or its Subsidiaries, ~~that~~ that, individually or in the aggregate, have a fair market value in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) or another such action where the economic impact would be in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the economic impact determined with respect to any actions taken pursuant to the following clause (4), or (4) any other action (excluding sales or divestitures) with respect to any assets or businesses of QUALCOMM or any of its Subsidiaries, or with respect to any assets or businesses of the Company or its Subsidiaries, that individually or in the aggregate, have a net negative economic impact (measured at the time of such request using customary valuation methodologies to be agreed by the parties hereto in good faith, which may include an evaluation by a third party that is mutually selected by the Parties) in excess of the amount set forth on Section 6.3(c) of the Company Disclosure Letter less the amount of the fair market value determined with respect to any actions taken pursuant to the foregoing clause (3)amount. (d) 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 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 substantive meetings or discussions 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 either party and any Governmental Authority with respect to this Agreement; provided that, ~~notwithstanding anything in this Agreement to the contrary, the Acquiring Parties~~ Parent shall determine the strategy to be pursued for obtaining and lead the effort to obtain all necessary actions or nonactions and consents from Governmental Authorities, including any related ~~litigation and Remedy Actions~~litigation, pursuant to any Antitrust Law in connection with the transactions contemplated by this Agreement, and the Company shall take all reasonably requested actions to support ~~the Acquiring Parties~~ Parent in connection therewith. Notwithstanding anything to the contrary contained in this Agreement, ~~the Acquiring Parties~~ Parent shall consult with the Company and consider in good faith the views of the Company in connection with all material communications with a Governmental Authority and strategy regarding the Antitrust Laws. (e) The Company and ~~the Acquiring Parties~~Parent, in their respective sole and absolute discretion, may (x) redact materials as necessary to comply with contractual arrangements address reasonable attorney client or other privilege or confidentiality concerns, exclude any information relating to Company valuation and similar matters relating to the transactions contemplated herein, and (y) designate any competitively sensitive material as “Outside Counsel Only Material” such that such materials and the information contained therein shall be given only to the outside counsel of the recipient and will not be disclosed to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials or its legal counsel. (f) ~~The Acquiring Parties~~ Parent and ~~Merger~~ Acquisition Sub shall not, and shall not permit any of their controlled Affiliates to, (i) acquire or agree to acquire by merging or consolidating with, or by purchasing a portion of the assets of or equity in, or by any other manner, any business of any Person or other business organization or division thereof, or otherwise acquire or agree to acquire any assets or equity interests or (ii) take or agree to take any other action (including entering into or agreeing to enter into any material license, joint venture or other transaction), in each case that would reasonably be expected to (A) impose any material delay in the obtaining of, or increase the risk materially of not obtaining, approval from, or avoiding an Action by, any Governmental Authority necessary to consummate the transactions contemplated by this Agreement or the expiration or termination of any applicable waiting period, (B) materially increase the risk of any Governmental Authority entering an Order prohibiting the consummation of the transactions contemplated by this Agreement or (C) otherwise materially delay or prevent the consummation of the transactions contemplated by this Agreement.

Appears in 1 contract

Samples: Merger Agreement (Veoneer, Inc.)

Common use of Appropriate Action; Consents; Filings Clause in Contracts